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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| JOSEPH E. ERICKSON, | ) |
| ) Court of Appeals No. A-8942 | |
| Appellant, | ) Trial Court No. 4FA-04-536 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2161 April 25, 2008 |
| ) | |
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Donald D. Hopwood,
Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K.
Brink and Quinlan G. Steiner, Public
Defenders, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and David W. M rquez and
Talis J. Colberg, Attorneys General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
COATS, Chief Judge, dissenting.
Joseph E. Erickson was riding in a car as a passenger
when an Alaska State Trooper stopped the car for not having a
front license plate. When the trooper asked Erickson for
identification, Erickson claimed to have no documents proving his
identity, and then (verbally) he falsely identified himself to
the trooper as Chris Erickson.
When the trooper entered this false information into
the APSIN database (the Alaska Public Safety Information
Network), he found no matching record, and he therefore concluded
that Erickson was lying about his identity.
The trooper ordered Erickson out of the car and patted
him down. This pat-down search yielded an identification card
that correctly identified Erickson as Joseph Erickson. At this
point, the trooper placed Erickson under arrest. The trooper
then continued the pat-down search. During the continued search,
the trooper found drugs a plastic bag containing a green, leafy
material and a glass pipe containing a milky white residue.
The trooper also noticed a black bag lying on the snow
beside the passenger door of the car. When the trooper asked
Erickson about this bag, Erickson replied that it looked like
trash. The trooper then retrieved the bag and searched its
contents. He found a powdery substance that later was identified
as methamphetamine.
Erickson was ultimately convicted of possession of
methamphetamine (the substance inside the black bag) and
possession of marijuana (the green, leafy material found on his
person).
In our earlier decision in this case, Erickson v.
State, 141 P.3d 356 (Alaska App. 2006), we concluded that the
trooper could properly require Erickson to get out of the car,
but that the trooper had no grounds for conducting a pat-down
search of Ericksons person. Id. at 359-362. We therefore
directed the superior court to decide what evidence had to be
suppressed as a fruit of the illegal pat-down. Id. at 362.
On remand, Superior Court Judge Donald D. Hopwood held
an evidentiary hearing. At this hearing, the trooper testified
that the black bag was plainly visible alongside the vehicle
because, even though snow was falling heavily at the time of the
traffic stop, the black bag had no snow on it, and thus it stood
out against the white ground. From this, the trooper inferred
that the bag had either fallen out of the car when Erickson got
out, or that someone inside the car had just thrown the bag from
the car.
The trooper testified that, even if he had not
conducted a pat-down search of Ericksons person, he still would
have searched the bag. The trooper told the superior court that,
when Erickson indicated that he had never seen the bag before,
the trooper took this to be a disclaimer of ownership and he
therefore felt free to search the bag as abandoned property.
The trooper further testified that, after he found the
powdery substance in the bag, he would have arrested Erickson
even if he had not conducted the earlier pat-down search and
that, following Ericksons arrest, he would then have thoroughly
searched Ericksons person.
Responding to the States contention that the trooper
could lawfully search the black bag because it was abandoned,
Erickson argued that his denial of ownership was the tainted
fruit of the earlier illegal pat-down search.
Judge Hopwood ultimately agreed with the State that the
trooper would have seized and searched the black bag, regardless
of what had occurred prior to that time. Specifically, Judge
Hopwood concluded that, even without the preceding unlawful
search of Ericksons person (and the discovery of the drugs on his
person), the trooper inevitably would have asked Erickson about
the bag and that, given the circumstances, Erickson would
inevitably have denied ownership of the bag thus enabling the
trooper to search the bag as abandoned property.
Ericksons case now returns to us, and Erickson
challenges the superior courts ruling that the search of the
black bag was lawful.
The State can not rely on the doctrine of abandoned
property to justify the search and seizure of the bag,
because Ericksons verbal abandonment of the bag (his
disclaimer of ownership) was the fruit of the earlier
illegal pat-down search and the consequent discovery of
drugs on Ericksons person
In its supplemental brief to this Court, the
State takes the position that the troopers search and
seizure of the bag was lawful because Erickson
disclaimed ownership of the bag, and thus it was
abandoned for Fourth Amendment purposes. But our prior
case law in this area firmly holds that if a defendants
act of abandonment is prompted by an illegal search or
seizure, the State can not rely on that act of
abandonment as justification for a search and seizure
of the abandoned object(s).
Here is our discussion of this point in
Joseph v. State, 145 P.3d 595 (Alaska App. 2006):
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. 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.
Joseph, 145 P.3d at 601 (footnote omitted).
(The omitted footnote cites three
cases from other states in support of this
conclusion: 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.); and Comer v.
State, 754 S.W.2d 656, 659 (Tex. App. 1986)
(abandonment must occur independent of any
police misconduct).
In addition to our discussion of
this issue in Joseph, see Wayne R. LaFave,
Jerold H. Israel, and Nancy J. King, Criminal
Procedure (3rd ed. 2007), 9.4(f), Vol. 3,
p. 464, in which the authors state that the
better rule is to exclude evidence of a
defendants attempts to dispose of
incriminating objects when the attempt to get
rid of the object stems from an illegal
search or seizure:
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.
The State attempts to evade this
authority by asserting that [t]he record
simply does not support [the] conclusion that
Ericksons disclaimer of ownership [was]
tainted ... by the illegal search. We
disagree.
Erickson was not questioned about
the bag, and he made no statement about the
bag, until after the trooper conducted the
illegal pat-down, found drugs on Ericksons
person (a plastic bag containing a green,
leafy material and a glass pipe containing a
milky white residue), and announced that
Erickson was under arrest. These
circumstances give every reason to believe
that Ericksons disclaimer of ownership was a
fruit of the illegal search.
The States alternative argument: inevitable discovery
As a fall-back position, the State endorses
Judge Hopwoods theory of inevitable abandonment
the theory that even if Erickson had not been
patted-down, and the trooper had not found drugs
on Ericksons person, and Erickson had not been
placed under arrest, the trooper still would have
inevitably asked the same question about the bag,
and Erickson still would have inevitably
disclaimed ownership of the bag. Based on this
theory, the State argues that even if the illegal
search of Ericksons person had never occurred, the
trooper inevitably would have been authorized to
retrieve and search the bag (because it was
abandoned property).
The States suggested version of events its
description of what would have happened, even if
the illegal search of Ericksons person had never
occurred is one possible scenario. But one can
also imagine that Erickson would have responded
differently if he had not already been subjected
to an illegal search, and if the trooper had not
already found drugs on Ericksons person. For
instance, if no illegal search had taken place,
and the trooper had asked Erickson about the bag,
Erickson might have said, Oh, thats mine. It must
have fallen out of the car when I opened the door.
Judge Hopwood believed that it was unlikely
that Erickson would respond in that fashion
because Erickson knew that there were drugs on his
person and in the bag, and because he was nervous.
But despite these factors, there is nothing
inevitable about the content of Ericksons
response.
Inevitable does not mean plausible,
expectable, or even likely. Rather, a series of events
is inevitable only when we can say with surety that,
regardless of the variables, things would have turned
out the same.
The actual events in this case were not
inevitable. That is, it was not inevitable that
Erickson would disclaim ownership of the bag after the
trooper patted him down and found drugs on his person.
Erickson might well have responded, Okay, youve got me.
There are more drugs in the bag.
(And, if Erickson had done so, the State
would now be hard-pressed to argue that the retrieval
and search of the bag was not tainted by the preceding
illegal search.)
There is even less inevitability concerning
what Erickson might have said about the bag if he had
not already been subjected to an illegal pat-down, and
if the trooper had not discovered the drugs on his
person. One can speculate about what Erickson would
have said, and one can even make informed guesses, but
there is nothing inevitable about a persons decision
how to respond to police questioning.
As the Third Circuit explained in United
States v. V squez de Reyes, 149 F.3d 192 (3rd Cir.
1998),
In response to our inquiry, the government
was unable to cite to any decision in which
the inevitable discovery doctrine was applied
to admit statements, as distinguished from
physical evidence. While we know of no
articulation of the inevitable discovery
doctrine that [expressly] restricts its
application to physical evidence, ... it is
patent why [the doctrine has] generally, if
not always, been so limited. A tangible
object is hard evidence, and[,] absent its
removal[,] will remain where left until
discovered. In contrast, a statement not yet
made is, by its very nature, evanescent and
ephemeral. Should the conditions under which
it was made change, even but a little, there
could be no assurance [that] the statement
would be the same.
V squez de Reyes, 149 F.3d at 195-96 (quoted
in Wayne R. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment (4th ed.
2004), 11.4(a), Vol. 6, p. 268).
Accord, United States v. White, 339
F.Supp.2d 1165, 1176-77 & n. 56 (D. Kan.
2004) (the inevitable discovery applies only
to physical evidence, not statements); United
States v. Awadallah, 202 F.Supp.2d 55, 81-82
(S.D. N.Y. 2002), reversed on other grounds,
349 F.3d 42 (2nd Cir. 2003) (same).
See also United States v. Pelullo,
173 F.3d 131, 137 n. 4 (3rd Cir. 1999)
([determining] what Pelullo would or would
not have testified to [under different
circumstances] clearly would require
speculation inconsistent with the inevitable
discovery doctrine); United States v.
Rodr¡guez, unpublished, 2006 WL 2860633, at
*11 (D. Conn. 2006) (as De Reyes makes clear,
it is not so easy to conclude, let alone with
a high level of confidence, that Delossantos
would have said the same thing to the police
[in the absence of the prior unlawful arrest
and search]); United States v. Castillo,
unpublished, 2006 WL 522104, at *14 (D. Me.
2006) (questioning whether the inevitable
discovery doctrine can ever be properly
applied to as-yet-unmade statements).
Moreover, as Professor LaFave
explains, for purposes of applying the
inevitable discovery doctrine, there is an
important distinction between cases that
involve a determination ... of what law
enforcement agents would otherwise have done
[and] with what results and, on the other
hand, cases that involve a determination of
what some other person would have done.
LaFave et al., Search and Seizure, 11.4(a),
Vol. 6, p. 282. Cases that rely upon
individual behavior as a crucial link in the
inevitable discovery chain, particularly when
that behavior is heavily influenced by the
illegality that did occur, rarely sustain an
inevitable discovery theory. Id. at p. 283
(citing State v. Topanotes, 76 P.3d 1159,
1164 (Utah 2003)).
Conceivably, there might be cases
where a court could properly find that an as-
yet-unuttered statement was indeed
inevitable. But this is not one.
For these reasons, we reject the
States contention that, even if Erickson had
not been subjected to the illegal search and
ensuing arrest, he inevitably would have
disclaimed ownership of the bag, and thus the
trooper inevitably would have been authorized
to retrieve and search the bag as abandoned
property.
Conclusion
The evidence found in the black bag was the
fruit of the earlier illegal pat-down search, and
it should have been suppressed. Accordingly, the
judgement of the superior court is REVERSED.
COATS, Chief Judge, dissenting.
I start with the proposition that the
exclusionary rule generally extends only to evidence
that the police discovered by acting illegally.1 I
would uphold Judge Hopwoods decision that the evidence,
which the police used to convict Erickson, was not a
product of the illegal search of Erickson. Therefore,
the exclusionary rule would not apply to exclude the
evidence.
In the present case, we have previously held
that Trooper Hazelaar had authority to stop the car in
which Erickson was a passenger and to order Erickson
out of the car.2 But we concluded that the record did
not establish that the trooper had sufficient reason to
conduct a pat-down search of Erickson for weapons.3 We
remanded the case to the trial court to determine what
evidence must be suppressed as a fruit of the illegal
pat-down search and whether any evidence might be
admissible against Erickson under the doctrine of
inevitable discovery.4
Judge Hopwood held an evidentiary hearing. At
the hearing Trooper Hazelaar testified that the black
bag was plainly visible alongside the vehicle, because
the area was well lit and it was snowing heavily. The
black bag, with no snow gathered on it, stood out on
the bleach-white snow. He was not certain if the bag
had fallen out of the car when Erickson exited, or if
the bag was intentionally thrown from the vehicle. He
testified that, regardless of the pat-down of Erickson,
he would have seized and searched the bag. Trooper
Hazelaar told the court that he would have asked
Erickson if he owned the bag, and that if Erickson
denied it was his, that he would search the bag.
At the evidentiary hearing, Trooper Hazelaar
testified that he asked Erickson about the bag as
Erickson was approaching the rear of the car prior to
the pat-down. Because this testimony contradicted
Trooper Hazelaars earlier testimony at the first
evidentiary hearing, the audio recording of the traffic
stop (which was played at trial), and Hazelaars trial
testimony, the State conceded in its argument that
Hazelaar did not actually ask about the bag until after
Erickson had been patted down for weapons. Judge
Hopwood made a factual finding that Erickson was asked
about the bag after the pat-down.
Trooper Hazelaar stated that it was clear
that Erickson was denying that the bag belonged to him.
Hazelaar therefore would have searched the bag. He
testified that as a result of his search of the bag, he
would have arrested Erickson and thoroughly searched
him.
Judge Hopwood heard arguments on this issue.
The State noted that Erickson had never argued that he
would have claimed ownership of the bag. The State
argued it would be unreasonable to assume that Erickson
would ever claim ownership of the bag. Upon
questioning from Judge Hopwood, the State admitted that
on occasion a person suspected of a crime will admit
ownership of a bag containing contraband, but that this
did not occur here.
Erickson argued that his denial of ownership
of the bag was tainted because it occurred after the
illegal pat-down. Erickson therefore argued that it was
not necessarily inevitable that Trooper Hazelaar would
have been able to search the bag as abandoned property
because without the illegal pat-down, Erickson may have
asserted ownership of the bag.
Following this hearing, Judge Hopwood
concluded that all of the same evidence was still
admissible. He implicitly recognized that the
lynchpin to all the other evidence was the black bag.
Judge Hopwood concluded that Trooper
Hazelaar, regardless of any questioning of Erickson
about the bag, would have seized and searched a bag
found on the side of the road. Judge Hopwood also
found that Hazelaar would have asked Erickson about the
bag and that Erickson would have denied ownership.
Judge Hopwood found that Erickson was not knowledgeable
on search and seizure law and
it would be extraordinarily rare
for [a person without extensive
legal knowledge] to be able to
analyze the developing facts on the
scene, have confidence in his
conclusion, and overcome a very
strong human reluctance and go on
to admit to a state trooper at the
scene of a traffic stop under these
circumstances ownership of a bag
containing illegal drugs.
He concluded that Erickson would have denied ownership
under any circumstances and that the bag was
consequently abandoned.
Therefore, based on the inevitable discovery
and abandonment doctrines, Judge Hopwood found that
[t]hrough predictable investigative processes, Hazelaar
would have searched the black bag even without
previously conducting the pat-[down] search and that
Hazelaar had the authority to search the black bag
without a warrant as abandoned property. Because
methamphetamine would have been found inside the bag,
Hazelaar would then have arrested Erickson and would
have searched him incident to the arrest and would have
discovered the marijuana. (Erickson was acquitted of
the charge stemming from the methamphetamine found in
the hotel room, therefore no discussion of the seizure
of the hotel key or search of the hotel room is
necessary.)
Erickson again challenges Judge Hopwoods
conclusion. Erickson primarily asserts that Judge
Hopwood misapplied the abandonment doctrine by
considering the statement he made after the illegal pat-
down (where he disavowed ownership of the bag) to
conclude that the search of the black bag would have
occurred regardless of the illegal pat-down.
Discussion
This case turns on whether Trooper Hazelaars
search of the black bag was a fruit of the illegal pat-
down search. Judge Hopwood concluded that Ericksons
statements, disavowing any knowledge or ownership of
the black bag were not a product of the illegal
search. Specifically, Judge Hopwood found that the
fact that the trooper had patted Erickson down and
found evidence of drug possession on Erickson did not
influence Mr. Ericksons decision to deny ownership or
control of the black bag. Nothing the trooper did
unlawfully forced the defendant to disclaim ownership
or control of the bag. [Erickson] would have disclaimed
them whatever happened, under all circumstances.
Judge Hopwood found that, by making
statements denying any ownership or control of the
black bag, the bag became abandoned property and
Erickson had no reasonable expectation of privacy in
the bag. Therefore, the trooper could seize the bag
and search it. Judge Hopwood found that the trooper
certainly would have done this. Trooper Hazelaar would
have discovered the drugs in the bag, would have
arrested Erickson for felony drug possession, and would
have searched Erickson incident to the arrest.
Therefore, Judge Hopwood concluded that the police
would have discovered all of the evidence that the
State admitted against Erickson at trial.
On appeal, Ericksons primary contention is
that Judge Hopwood erred in utilizing Ericksons
statement denying ownership in the black bag in finding
that the black bag was abandoned. Erickson points out
that he made the statement after Trooper Hazelaar had
conducted the illegal pat-down search and found the
evidence of drug possession in Ericksons pockets. He
points out that he had not only been subject to an
illegal pat-down search, but that a reasonable person
in his position would have concluded that he was in
police custody. He also points out that Hazelaar asked
him about the black bag after the illegal pat-down but
before the trooper had given him a Miranda warning. He
therefore contends that Judge Hopwood erred in
considering his statement disclaiming ownership of the
black bag because the statement was not only a product
of the illegal search, but was also the product of
custodial interrogation conducted without the benefit
of a Miranda warning.
This case presents a difficult issue. But I
conclude that Judge Hopwoods finding, that Ericksons
statement disclaiming ownership of the black bag was
not a product of the illegal search, is sound. And I
conclude that Trooper Hazelaars question to Erickson
about the black bag was on-the-scene questioning that
did not violate Ericksons Miranda rights.
Abandonment
Abandonment of property defuses any Fourth
Amendment expectation of privacy.5 Abandonment occurs
when a person discards property under circumstances
that objectively manifest the intent to give up any and
all expectation of privacy in the property, now and in
the future.6 In reaching the decision that Erickson
abandoned the black bag, I have relied on the Alaska
Supreme Court case of State v. Salit.7 Salit
presented his possessions for x-ray examination before
boarding a flight departing from the Anchorage
International Airport. When an employee conducting the
examination asked to search Salits handbag, Salit
granted permission. The search turned up what appeared
to be narcotics paraphernalia and a small bottle
containing a white powdery substance.8 The airport
security police were summoned. When an officer
arrived, he recognized the contents of Salits handbag
as drug paraphernalia. He asked Salit to come with him
and began to escort Salit to the airport first-aid
room. The officer noticed a garment bag on a chair.
The officer was told that the bag belonged to Salit.
But Salit denied owning the bag. The officer opened
the garment bag and found what appeared to be cocaine.
The police then took Salit to the first-aid station,
read him his Miranda rights, and conducted further
searches. The supreme court upheld the search of the
garment bag on the theory that Salit had abandoned it.9
In contrast, Erickson attempts to rely on
Young v. State.10 But in that case, Young attempted to
conceal contraband without the clear intent to
permanently relinquish his ownership or control.11 I
agree with Judge Hopwood that Ericksons statement that
the bag looked like trash objectively indicated a
relinquishment of any reasonable expectation of
privacy.
Miranda
On the potential Miranda issue, I also find
Salit instructive. In Salit, the Alaska Supreme Court
held that the search of Salits handbag was permissible
because Salit had consented to the search. The court
concluded that, by denying ownership of the garment
bag, Salit had abandoned that bag and therefore
terminated his reasonable expectation of privacy in the
bag.12 In reaching this conclusion, the court
investigated whether Salits denial was attributable to
unlawful police conduct.13 The court noted that Salit
had not been given a Miranda warning at the time he was
asked whether he owned the bag. The court concluded
that the officers question to Salit fell within an
exception to the Miranda doctrine: general on-the-scene
questioning.14 The court also found that the officers
question about whether Salit owned the bag did not
constitute interrogation because there was no basis for
believing that [the officers] question was for the
purpose of eliciting an incriminating statement. He
did not know the contents of the bag, and it was
logical to make the inquiry so that Salit could have
the bag taken with him to the first aid room. We do not
believe that this single inquiry constituted
interrogation.15
Certain facts make Ericksons case more
difficult than Salit. Erickson made his statement
after an illegal pat-down search. Furthermore, after
Trooper Hazelaar conducted the illegal pat-down search
and found the drugs on Erickson, Erickson was in
custody for Miranda purposes. I conclude, however,
that the reasoning in Salit supports the conclusion
that Judge Hopwood did not err when he concluded that
the evidence that the State presented to convict
Erickson was properly admitted in Ericksons trial.16
Judge Hopwood found that Trooper Hazelaar had
seen the black bag and would have asked Erickson about
it. Ericksons decision to deny ownership of the bag
was not influenced by the earlier illegal pat-down
search. The reasoning of Salit appears to support the
conclusion that Ericksons denial, that the bag was not
his, was not testimonial. In his treatise, Search and
Seizure, Professor LaFave concludes that, where the
police obtain a consent to search from a person who is
in custody and has not been given Miranda warnings, the
prevailing and better view is that the consent to
search is neither testimonial, nor communicative in the
Fifth Amendment sense.17 Ericksons denial that he had
any connection to the black bag seems similar to a
response to a request from a police officer to search
the bag. Before Erickson could consent to any search,
he would first have to acknowledge ownership of the
bag. Ericksons response, denying ownership of the
black bag, does not appear to be a response to
interrogation.
I therefore would uphold Judge Hopwoods
decision that Ericksons denial that the black bag was
his was not a product of the earlier illegal pat-down
search. Ericksons contention is that the statement was
a product of the prior illegal search. But, as Judge
Hopwood found, this seems highly unlikely.
I agree with the force of the majoritys
argument that if Erickson admitted that the black bag
was his that he would have a strong argument that his
statement was the product of the prior illegal search.
But that is not what Erickson did. Erickson denied
that he had any connection with the bag. And, as
Judge Hopwood found, it seems highly improbable that
Ericksons statement was a product of the prior illegal
search.
If Ericksons statement was not the product of
the prior illegal search, then it makes no sense to
exclude the evidence that the police obtained from the
statement. The exclusionary rule should extend only to
evidence that the police discover by acting illegally.
Extending the exclusionary rule beyond this point
simply constitutes an unnecessary windfall to the
appellant. I would therefore uphold Judge Hopwoods
decision.
_______________________________
1 See, e.g., Smith v. State, 948 P.2d 473, 477 (Alaska 1997)
(It is well settled that the exclusionary rule renders
inadmissible evidence obtained indirectly as a result of an
unlawful search or seizure as well as evidence directly
obtained thereby. (citing Wong Sun v. United States, 371
U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963))).
2 Erickson v. State, 141 P.3d 356, 359 (Alaska App. 2006).
3 Id. at 362.
4 Id.
5 State v. Salit, 613 P.2d 245, 255 (Alaska 1980).
6 Young v. State, 72 P.3d 1250, 1253 (Alaska App. 2003).
7 613 P.2d 245.
8 Id. at 247-48.
9 Id. at 249.
1072 P.3d 1250.
11Id. at 1254.
12Salit, 613 P.2d at 258.
13Id. at 256.
14Id. at 257.
15Id. at 257-58.
16See, e.g., Beagel v. State, 813 P.2d 699, 705 (Alaska App.
1991) (stating that Miranda rights are triggered by custody
and interrogation and that general on-the-scene questioning
is not interrogation); People v. Bailey, 172 A.D.2d 163, 163
(N.Y. App. Div. 1991) (holding that initial question of
whose wallet is this? after officers found a wallet on the
ground near two suspects was meant to clarify the nature of
the situation confronted and was not a part of a process of
interrogation).
174 Wayne LaFave, Search and Seizure 8.2(j) at 117-18 (4th
ed. 2004) (quoting People v. Thomas, 12 Cal. App. 3d 1102,
1110, 91 Cal. Rptr. 867 (Cal. Ct. App. 1970)).
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