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State of Alaska v. Hazelwood (12/3/93), 866 P 2d 827
<![CDATA[
NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, ) Supreme Court No. S-5311
)
Petitioner, ) Court of Appeals No. A-3452
)
v. ) Superior Court No.
) 3AN-S89-7217/7218 CRIMINAL
JOSEPH J. HAZELWOOD, )
) O P I N I O N
Respondent. )
_________________________) [No. 4034, December 3, 1993]
Petition for Hearing from the Court of
Appeals for the State of Alaska, on Appeal
from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Karl S. Johnstone, Judge.
Appearances: Cynthia M. Hora, Assistant
Attorney General, Richard W. Maki, Assistant
Attorney General, Anchorage, Charles E. Cole,
Attorney General, Juneau, for Petitioner.
Richard H. Friedman and Jeffrey K. Rubin,
Friedman & Rubin, Anchorage, Michael G.
Chalos, Thomas Russo, Chalos, English &
Brown, New York City, New York, and Dick L.
Madson, Fairbanks, for Respondent.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, and Compton, Justices.
[Burke, Justice, not participating.]
RABINOWITZ, Justice.
COMPTON, Justice, dissenting in part.
This petition for hearing presents essentially two
issues: (1) whether as a matter of federal law the State
demonstrated that it had an independent source for the evidence
it introduced against Captain Joseph Hazelwood at his criminal
trial; and (2) whether as a matter of federal law use and
derivative use immunity granted under the Federal Water Pollution
Control Act, 33 U.S.C. 1321(b)(5), is subject to an inevitable
discovery exception.
FACTS AND PROCEEDINGS
On March 24, 1989, the Exxon Valdez ran aground off
Bligh Reef, spilling eleven million gallons of oil into Prince
William Sound. The captain of the tanker, Joseph J. Hazelwood
(Hazelwood), radioed the Coast Guard approximately twenty minutes
after the grounding and stated:
Yeah, ah Valdez back, ah we've, should be on
your radar there, we've fetched up ah hard
aground, north of Goose Island, off Bligh
Reef, and ah evidently leaking some oil and
we're gonna be here for awhile and ah, if you
want ah, so you're notified, over.
Subsequently, the State charged Hazelwood with several
crimes related to the grounding. Hazelwood moved to dismiss the
charges and suppress evidence, arguing that all of the State's
evidence was derived either directly or indirectly from his
notification, and that its admission violated the immunity
granted by 33 U.S.C. 1321(b)(5) and the principles of Kastigar
v. United States, 406 U.S. 441 (1972).
The superior court denied Hazelwood's motions,
accepting the State's arguments that (1) 46 U.S.C. 6101, the
marine casualty reporting statute, and its implementing
regulation constituted a separate and independent source for the
State's evidence; and (2) the evidence used by the State would
have been inevitably discovered. A jury subsequently convicted
Hazelwood of negligent discharge of oil. The court of appeals
reversed Hazelwood's conviction, holding as a matter of law that
the marine casualty statute and regulation did not constitute an
independent source for the State's evidence and that the
inevitable discovery doctrine was inapplicable in the context of
a congressionally enacted grant of immunity. Hazelwood v. State,
836 P.2d 943 (Alaska App. 1992). We subsequently granted the
State's petition for hearing as to both the independent source
and inevitable discovery rulings.
DISCUSSION
A. Protection from Prosecution Provided by 33 U.S.C.
1321(b)(5).1
The federal reporting requirement for oil and hazardous
substance discharges, 33 U.S.C. 1321(b)(5), includes a
statutory grant of immunity from criminal prosecution. At the
time of Hazelwood's offense, the statute provided for both use
and derivative use immunity:2
Any person in charge of a vessel or
of an onshore facility or an offshore
facility shall, as soon as he has knowledge
of any discharge of oil or a hazardous
substance from such vessel or facility in
violation of paragraph (3) of this
subsection, immediately notify the
appropriate agency of the United States
Government of such discharge. Any such
person . . . who fails to notify immediately
such agency of such discharge shall, upon
conviction, be fined not more than $10,000,
or imprisoned for not more than one year, or
both. Notification received pursuant to this
paragraph or information obtained by the
exploitation of such notification shall not
be used against any such person in any
criminal case, except a prosecution for
perjury or for giving a false statement.
33 U.S.C. 1321(b)(5) (1988) (amended 1990) (emphasis added).3
Hazelwood argues that by admitting evidence that he notified the
Coast Guard about the spill, and by admitting evidence derived
from this notification, the superior court violated this
statutory grant of immunity.
B. Applicability of the Independent Source Doctrine.
The State argues that the evidence admitted was
obtained through a source independent of Hazelwood's
notification, and thus was not subject to exclusion. The U.S.
Supreme Court has explicitly recognized that a statutory grant of
use and derivative use immunity, like the Fifth Amendment's
protection against self-incrimination, "allow[s] the government
to prosecute using evidence from legitimate independent sources."
Kastigar v. United States, 406 U.S. 441, 461 (1972) (emphasis
added). However, once a defendant shows that he or she testified
under a statutory grant of immunity, the burden shifts to the
prosecution "to prove that the evidence it proposes to use is
derived from a legitimate source wholly independent of the
compelled testimony." Id. at 460. We must determine, then,
whether the State has met its burden of proving that the evidence
admitted against Hazelwood was obtained from a source wholly
independent of the notification compelled by the statute.
The State argues that upon grounding the Exxon Valdez,
Hazelwood incurred two separate legal reporting duties. Under
the oil spill statute, 33 U.S.C. 1321(b)(5), he was required to
report that he was discharging oil. Under the marine casualties
reporting statute, 46 U.S.C. 6101,4 and its implementing
regulations, he was required to report that the ship had
grounded. The marine casualty statute and regulations also
require that the person making the report provide additional
information, such as the identity and location of the ship. 46
C.F.R. 4.05-1, -5 (1992).
Parsing Hazelwood's radio transmission, the State
argues that only one part of it is protected under the grant of
immunity. According to the State, Hazelwood's statement that the
tanker "evidently [was] leaking some oil" was sufficient to
fulfill his obligation under the oil spill statute. This
statement, the State concedes, is covered by the statute's
immunity clause. The State argues, however, that any additional
information provided by Hazelwood, specifically "we've fetched up
ah hard aground north of Goose Island, off Bligh Reef," was
reported pursuant to the marine casualty statute, and thus
amounted to a source of evidence wholly independent of the
immunized statement.5
We cannot accept the State's arguments. As noted by
the court of appeals, the State's argument rests on the premise
that, under the oil spill reporting statute, Hazelwood was
required to report nothing more than the fact that his ship was
discharging oil. Hazelwood v. State, 836 P.2d 943, 948 (Alaska
App. 1992). Interpreting the statute to require no more than
this would be unreasonable. Congress initially enacted the oil
spill statute as part of legislation designed to improve the
nation's water quality.6 Viewed in light of this overall
purpose, the notification process required by the statute must be
construed to require that regulatory officials be provided with
adequate information, such as the location of the spill, so that
they may begin immediate remedial measures. Thus we decline to
hold that Hazelwood's statement concerning the location of the
vessel was made solely to comply with the marine casualty statute
and therefore provided an independent source.
Furthermore, the U.S. Supreme Court clearly stated in
Kastigar that the government must "prove that the evidence it
proposes to use is derived from a legitimate source wholly
independent" of the immunized statement. 406 U.S. at 460
(emphasis added). In this case, there is only one source:
Hazelwood's single radio transmission made shortly after the
Exxon Valdez ran aground on Bligh Reef. The State asks us to
accept the contention that Hazelwood's radioed statement to the
Coast Guard was immunized at one point and an independent source
at another. The initial report cannot be divided: it was a
single radio transmission made shortly after the Exxon Valdez ran
aground on Bligh Reef. We cannot accept this argument in the
face of Kastigar's requirement that the independent source be
"wholly independent" from the immunized source. We therefore
AFFIRM this aspect of the court of appeals' decision.
C. The Application of the Inevitable Discovery
Doctrine Under 33 U.S.C. 1321(b)(5).
Alternatively, the State argues that the evidence
admitted against Hazelwood at trial was admissable under the
inevitable discovery doctrine.7 The United States Supreme Court
recognized the inevitable discovery doctrine in Nix v. Williams,
467 U.S. 431 (1984). The doctrine is an exception to the
exclusionary rule8 in cases where evidence has been obtained in
violation of constitutional protections such as the Fifth
Amendment privilege against self-incrimination.9 The doctrine is
essentially a variation on the independent source rule, except
that the question is not whether the police actually obtained
evidence from an untainted source, but whether evidence obtained
through a constitutional violation would inevitably have been
discovered through a lawful means. 4 Wayne R. LaFave, Search and
Seizure 11.4(a), at 378 (2d ed. 1987).
The Supreme Court noted that the "core rationale" for
the exclusionary rule is "to deter police from violations of
constitutional and statutory protections." Nix, 467 U.S. at 442-
43. "On this rationale, the prosecution is not to be put in a
better position than it would have been in if no illegality had
transpired." Id. at 443. However, the rule is not meant to put
the prosecution in a position worse than if no police misconduct
occurred. Id.10 Thus the Supreme Court has recognized the
inevitable discovery doctrine. If the prosecution can prove that
the challenged evidence "ultimately or inevitably would have been
discovered by lawful means, . . . then the deterrence rationale
has so little basis that the evidence should be received." Id.
at 444.
Hazelwood contends that the absence of a deterrence
rationale makes the inevitable discovery doctrine "inappropriate
in the context of immunity analysis." Hazelwood asserts that
the exclusionary rule and exceptions thereto were developed by
balancing two competing interests: the need to deter police
misconduct and the need for evidence of wrongdoing to convict the
wrongdoer. Exceptions to the exclusionary rule are recognized
because the interest of deterring illegal police conduct is not
enhanced by excluding evidence that would have been found
legally. Hazelwood argues, however, that the purpose behind
excluding information derived from immunized testimony is
unrelated to deterrence of official misconduct. Rather, the
exclusionary rule serves to enforce the government's assurance
that no immunized statement or evidence derived therefrom will be
used against a person compelled to give the statement.
Additionally, Hazelwood contends that while courts are free to
modify the judicially created exclusionary rule, only Congress
can change the scope of the immunity statute it created. Thus he
concludes that the inevitable discovery doctrine cannot apply in
the context of a statutory grant of immunity.
The court of appeals agreed, finding a critical
distinction between the role played by the exclusion of illegally
obtained evidence and that played by exclusion of evidence
derived from immunized information. Based on this perceived
distinction the court of appeals concluded that "the inevitable
discovery doctrine--an exception rooted in the pragmatism of the
exclusionary rule and its narrow deterrent purpose--has no
application in the immunity context." Hazelwood v. State, 836
P.2d 943, 953 (Alaska App. 1992).11 We disagree.
The U.S. Supreme Court's opinion in Nix is of
significance here. There the defendant contended that certain
evidence was derived from a police interrogation conducted in
violation of his Sixth Amendment right to counsel. 467 U.S. at
441. He challenged application of the inevitable discovery rule,
arguing that the purpose for the exclusionary rule under the
Sixth Amendment was not to deter police misconduct but to
preserve the right to a fair trial and the integrity of the
factfinding process. Id. at 446.
The Court disagreed, stating that "[e]xclusion of
physical evidence that would inevitably have been discovered adds
nothing to either the integrity or fairness of a criminal trial."
Id. The Court again emphasized that the exclusionary rule was
not meant to put the State in a worse position than would have
been the case had the illegality not occurred. The Nix
defendant's interpretation of the rule placed the State at a
disadvantage, and the Supreme Court rejected this result, noting
that "[s]uppression in these circumstances . . . would inflict a
wholly unacceptable burden on the administration of criminal
justice." Id. at 447.
The argument Hazelwood presents in the context of a
statutory grant of immunity is similar: the lack of a deterrence
rationale for the exclusionary rule precludes the application of
the inevitable discovery exception to the rule. While the U.S.
Supreme Court has not directly addressed this question, we think
the foregoing discussion in Nix provides the answer.
In order to determine whether an exception to the
exclusionary rule is permissible, we, like the U.S. Supreme Court
in Nix, must balance the societal costs of excluding evidence
against the particular interest the rule might serve: deterrence
of police misconduct, preservation of the right to a fair trial,
or enforcement of the government's promise. If we accept
Hazelwood's contention and hold that the inevitable discovery
doctrine is not applicable in the immunity context, the State
will be in a worse position than if the statutory grant of
immunity did not exist. We do not think the interest served by
the exclusionary rule in the immunity context requires such a
result. Rather, we hold that when the evidence at issue
inevitably would have been discovered without reference to
immunized statements, "there is no nexus sufficient to provide a
taint and the evidence is admissible." Id. at 448; see also
United States v. Kiser, 948 F.2d 418, 422-23 (8th Cir. 1991).12
The court of appeals also concluded that application of
the inevitable discovery doctrine would defeat the congressional
purpose in granting immunity for the immediate report of a spill.
The court of appeals reasoned that persons who potentially stood
to incriminate themselves would be discouraged from complying if
it were predictable at the outset that the inevitable discovery
doctrine would apply. Hazelwood, 836 P.2d at 953.
Again we disagree. Congress did not rely solely upon
the grant of immunity to encourage the reporting of oil spills.
The oil spill statute itself provides stiff penalties for those
failing to notify the authorities of a spill.13 A failure to
notify would be a criminal act in addition to any criminal acts
causing the spill.14
We therefore hold, in accordance with the applicable
U.S. Supreme Court precedent, that the court of appeals erred in
ruling that the inevitable discovery doctrine has no application
in the context of this statutory grant of immunity. Since our
reading of Kastigar and Nix impels us to the conclusion that
application of the doctrine of inevitable discovery to the use
and derivative use immunity provided for in 33 U.S.C.
5 1321(b)(5) is permissible, we remand this case to the court of
appeals for further proceedings.
AFFIRMED in part, REVERSED in part, and REMANDED for
further proceedings.15
COMPTON, Justice, dissenting in part.
I am unpersuaded by the court's conclusion that
Kastigar v. United States, 406 U.S. 441 (1972) (no violation of
Fifth Amendment privilege against self incrimination when
evidence derived from a wholly independent source), and Nix v.
Williams, 467 U.S. 431 (1984) (no violation of Sixth Amendment
right to counsel when evidence would have been inevitably
discovered regardless of violation), compel application of the
doctrine of inevitable discovery to the statutory grant of
immunity provided in 33 U.S.C. 1321(b)(5). See Op. at 15. The
immunity granted by 33 U.S.C. 1321(b)(5), coextensive with the
protection afforded by the Fifth Amendment, is very broad.16 The
doctrine of inevitable discovery is incompatible with the mandate
that an immunized report and information derived from the
exploitation of an immunized report is not admissible in a
criminal proceeding against the declarant. I would affirm the
decision of the court of appeals that so holds.17
At the outset, it is important to know what evidence
Hazelwood sought to suppress.18 Hazelwood filed separate motions
relating to the admissibility of evidence. One motion asserted
essentially that all evidence supporting the charges against him
was derived from the exploitation of his immunized report, and
hence was inadmissible. Dismissal of the charges was the remedy
Hazelwood sought. Another motion, based on the same theory,
sought suppression of the result of a blood alcohol test taken
while Hazelwood was still aboard the Exxon Valdez. A third
motion, again based on the same theory, sought suppression of
four specific statements:
The first statement was made in a radio
call to the Coast Guard and reported that the
defendant was having some trouble with the
third mate. The second statement was made in
response to a question by Department of
Environmental Control (DEC) investigator, Joe
LeBeau. LeBeau asked the defendant what the
problem was that caused the grounding, and
the defendant replied, "You're looking at
it." The third statement was a similar
remark made in response to a similar question
by Trooper Fox. The fourth statement is an
interview of the defendant conducted by Coast
Guard Chief Warrant Officer Mark Delozier,
contained in state's exhibit 69.
Order, State v. Hazelwood, No. 3AN-S89-7217 Cr./7218 Cr. (Alaska
Super., December 18, 1989). These four statements were made
before or during the government agents' initial boarding of the
Exxon Valdez.
The court of appeals noted that "[h]ere, the superior
court found, and the state has effectively conceded, that the
evidence against Hazelwood was in fact obtained 'by the
exploitation of' Hazelwood's report that the Exxon Valdez ran
aground and was leaking oil." Hazelwood v. State, 836 P.2d 943,
953 (Alaska App. 1992). The court does not dispute that this was
the only source of the evidence which the State proposed to use
against Hazelwood: his "single radio transmission made shortly
after the Exxon Valdez ran aground on Bligh Reef." Op. at 8.
This transmission was given pursuant to 33 U.S.C. 1321(b)(5):
Any person in charge of a vessel . . .
shall, as soon as he has knowledge of any
discharge of oil . . . , immediately notify
the appropriate agency of the United States
Government of such discharge. . . .
Notification received pursuant to this
paragraph or information obtained by the
exploitation of such notification shall not
be used against any such person in any
criminal case, except a prosecution for
perjury or for giving a false statement.
It is also important to keep in mind the rights
guaranteed by the United States Constitution that are implicated
in this case. The Fourth Amendment addresses searches and
seizures:
The right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and seizures,
shall not be violated, and no warrants shall
issue, but upon probable cause, supported by
oath or affirmation, and particularly
describing the place to be searched, and the
persons or things to be seized.
U.S. Const. amend. IV. The Fifth Amendment addresses the
privilege against self incrimination:
No person shall . . . be compelled in
any criminal case to be a witness against
himself . . . .
U.S. Const. amend. V. The Sixth Amendment addresses the right to
assistance of counsel:
In all criminal prosecutions, the
accused shall enjoy the right . . . to the
assistance of counsel for his defense.
U.S. Const. amend. VI. These rights apply in different ways and
may be violated at different stages of the government's
involvement with a citizen.
Violations of Fourth and Sixth Amendment rights are
"fully accomplished" at the time of the offending government
conduct. See, e.g., Withrow v. Williams, ___ U.S. ___, 113 S.
Ct. 1745, 1753 (1993) (Fourth Amendment); Nix v. Williams, 467
U.S. 431 (1984) (Sixth Amendment).19 They may occur even though
no formal criminal charges are filed against the citizen. If
formal charges are filed, the remedy for such violations may be
the exclusion of evidence obtained thereby. However, in Nix the
Supreme Court accepted the inevitable discovery doctrine as an
exception to the exclusionary rule for violations of the Sixth
Amendment right to counsel.20
In contrast, a violation of the Fifth Amendment is not
"fully accomplished"until the compelled evidence is used against
the citizen at trial:
The privilege against self-incrimination
guaranteed by the Fifth Amendment is a
fundamental trial right of criminal
defendants. Although conduct by law
enforcement officials prior to trial may
ultimately impair that right, a
constitutional violation occurs only at
trial. The Fourth Amendment functions
differently. It prohibits "unreasonable
searches and seizures"whether or not the
evidence is sought to be used in a criminal
trial, and a violation of the Amendment is
"fully accomplished" at the time of an
unreasonable governmental intrusion.
United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990)
(citations omitted). Evidence admitted at trial over a valid
assertion of the privilege against self incrimination violates
the privilege. Thus exclusion of the evidence both effectuates
the constitutional right and prevents the constitutional
violation.
The United States Supreme Court has recognized that
there is a predicate for application of the exclusionary rule:
"It is clear that the cases implementing the exclusionary rule
'begin with the premise that the challenged evidence is in some
sense the product of illegal governmental activity.'" United
States v. Crews, 445 U.S. 463, 471 (1980) (emphasis added).
However, Hazelwood does not rely on a claim of any illegal
governmental activity prior to the State's effort to introduce
compelled evidence in the criminal proceeding.21 Exclusion of
Hazelwood's immunized report and information derived from the
exploitation thereof is not mandated by an exclusionary rule, but
by the Fifth Amendment itself: "No person . . . shall be
compelled in any criminal case to be a witness against himself .
. . ."22
I agree with the court's interpretation of 33 U.S.C.
1321(b)(5) and its conclusion regarding the independent source
doctrine. See Op. at 3-8. The use of evidence derived from a
wholly independent source would not violate Hazelwood's Fifth
Amendment privilege against self incrimination, as it would not
be derived from the exploitation of Hazelwood's immunized report.
However, information derived in fact from the exploitation of
Hazelwood's immunized report violates his Fifth Amendment
privilege against self incrimination and must not be admitted in
evidence. Whether a citizen is afforded a constitutional right
should not depend in the first instance on whether a trial court
determines that evidence derived from the exploitation of an
immunized statement would or would not have been inevitably
discovered.23
_______________________________
1. The scope of immunity under 33 U.S.C. 1321(b)(5), and
its constitutionally permissible exceptions, are issues of
federal law. Thus United States Supreme Court precedent, rather
than our own precedent, controls our resolution of this case.
The difference this distinction can make is illustrated
in our recent decision in State v. Gonzales, 853 P.2d 526 (Alaska
1993). There, we were presented with the question whether a
statute authorizing an order compelling testimony based on a
grant of use and derivative use immunity satisfied the scope of
the privilege against self-incrimination provided for in article
I, section 9 of the Alaska Constitution. We concluded that use
and derivative use immunity impermissibly dilutes the protection
of article I, section 9. Id. at 530.
2. Use and derivative use immunity allows prosecution for
the crimes referred to in the compelled testimony, but prohibits
use of the compelled testimony and evidence derived therefrom in
such prosecutions. Kastigar v. United States, 406 U.S. 441, 453
(1972). The statute at issue in Kastigar directed that when the
district court issued an order compelling a witness to provide
testimony, "no testimony or other information compelled under the
order (or any information directly or indirectly derived from
such testimony or other information) may be used against the
witness in any criminal case, except a prosecution for perjury,
giving a false statement, or otherwise failing to comply with the
order." 18 U.S.C. 6002 (1988). The U.S. Supreme Court held
that the grant of immunity provided protection equivalent to the
Fifth Amendment privilege against self-incrimination:
The statute's explicit proscription of
the use in any criminal case of "testimony or
other information compelled under the order
(or any information directly or indirectly
derived from such testimony or other
information)" is consonant with Fifth
Amendment standards. We hold that such
immunity from use and derivative use is
coextensive with the scope of the privilege
against self-incrimination, and therefore is
sufficient to compel testimony over a claim
of the privilege. While a grant of immunity
must afford protection commensurate with that
afforded by the privilege, it need not be
broader. Transactional immunity, which
accords full immunity from prosecution for
the offense to which the compelled testimony
relates, affords the witness considerably
broader protection than does the Fifth
Amendment privilege. The privilege has never
been construed to mean that one who invokes
it cannot subsequently be prosecuted. Its
sole concern is to afford protection against
being "forced to give testimony leading to
the infliction of `penalties affixed to . . .
criminal acts.'" Immunity from the use of
compelled testimony, as well as evidence
derived directly and indirectly therefrom,
affords this protection. It prohibits the
prosecutorial authorities from using the
compelled testimony in any respect, and it
therefore insures that the testimony cannot
lead to the infliction of criminal penalties
on the witness.
Kastigar, 406 U.S. at 453 (footnote omitted) (alteration in
original).
3. The Oil Pollution Act of 1990 included several
amendments to 33 U.S.C. 1321(b)(5). See Pub. L. No. 101-380,
4301(a), 104 Stat. 484, 533 (1990). The provision now reads:
Any person in charge of a vessel or
of an onshore facility or an offshore
facility shall, as soon as he has knowledge
of any discharge of oil or a hazardous
substance from such vessel or facility in
violation of paragraph (3) of this
subsection, immediately notify the
appropriate agency of the United States
Government of such discharge. . . . Any such
person . . . who fails to notify immediately
such agency of such discharge shall, upon
conviction, be fined in accordance with title
18, or imprisoned for not more than 5 years,
or both. Notification received pursuant to
this paragraph shall not be used against any
such natural person in any criminal case,
except a prosecution for perjury or for
giving a false statement.
33 U.S.C. 1321(b)(5) (Supp. III 1991).
4. At the time of Hazelwood's offense, this statute called
for regulations to require reporting of a number of marine
casualties, including "material loss of property"and "material
damage affecting the seaworthiness or efficiency of the vessel."
46 U.S.C. 6101(a)(3), (4) (1988) (amended 1990). The Oil
Pollution Act of 1990 added a subsection (5) to this provision.
Pub. L. No. 101-380, 4106(b), 104 Stat. 484, 513 (1990). The
new subsection added "significant harm to the environment"to the
list of marine casualties that are required to be reported. See
46 U.S.C. 6101(a)(5) (Supp. III 1991).
5. The State analogizes the "statements"in this case to
the two statements at issue in United States v. Lipkis, 770 F.2d
1447, 1450-51 (9th Cir. 1985). Lipkis is inapplicable, however,
as in that case there were two separate statements made six
months apart. Id. at 1449.
6. See 33 U.S.C. 1251(a) (1988) ("The objective of this
chapter is to restore and maintain the chemical, physical, and
biological integrity of the Nation's waters.").
7. The court of appeals noted:
In the present case, witnesses
called by the state during the evidentiary
hearing testified that the grounding of the
Exxon Valdez would in all likelihood have
been discovered and investigated, with
negligible delay, even if Hazelwood had
failed to notify the Coast Guard immediately.
Based on this testimony, Judge Johnstone
declared the inevitable discovery doctrine
applicable:
The defendant's
report of the grounding
notwithstanding, the state
inevitably would have discovered
the grounding of the Exxon Valdez
and initiated the investigatory
process by not later than 12:45
a.m. on March 24, 1989. The court
further concludes, based on the
facts, that the investigating team
. . . would have arrived at
approximately the same time as
they, in fact, did. Any
observation made or investigation
actually commenced would have been
made or commenced at approximately
the same time.
Hazelwood, 836 P.2d at 951 (alteration in original).
The dissent observes, "It is difficult to conceive how
Hazelwood's oral statements--specific pronouncements occurring at
specific points in time--ever could have been `inevitably
discovered.'" This observation misstates the State's position
and misinterprets our opinion. First, at no point in its
briefing does the State contend that the text of Hazelwood's
radio transmissions made to the Coast Guard within 20 minutes of
the grounding is admissible in evidence. Rather, the State
argues that as a consequence of the court of appeals' decision it
is placed in a position where it cannot use any of the evidence
gained from its investigation of the oil spill, despite the
superior court's factual findings that the State would have
discovered the accident. Second, our opinion is limited to the
question whether the grant of immunity provided for in 33 U.S.C.
1321(b)(5) is subject to the inevitable discovery doctrine. We
express no view as to the admissibility of any particular portion
of the State's evidence against Hazelwood. Such evidentiary
questions remain for resolution by the court of appeals on
remand.
8. The Supreme Court described the exclusionary rule as a
"doctrine requiring courts to suppress evidence as the tainted
`fruit' of unlawful governmental conduct." Nix, 467 U.S. at 441.
The exclusionary rule applies "not only to the illegally obtained
evidence itself, but also to other incriminating evidence derived
from the primary evidence." Id. (citing Silverthorne Lumber Co.
v. United States, 251 U.S. 385 (1920)). Furthermore, the
exclusionary rule extends to "evidence that was the indirect
product or `fruit' of unlawful police conduct." Id. (citing Wong
Sun v. United States, 371 U.S. 471 (1963)).
The Supreme Court was careful to emphasize, however,
that information or evidence illegally obtained "need not always
be suppressed." Id. Thus, the Supreme Court has recognized
exceptions to the exclusionary rule, such as the independent
source doctrine and the inevitable discovery doctrine.
9. See Murphy v. Waterfront Comm'n, 378 U.S. 52, 79 (1964)
("[A] state witness may not be compelled to give testimony which
may be incriminating . . . unless the compelled testimony and its
fruits cannot be used in any manner by . . . officials in
connection with a criminal prosecution against him.").
10. Specifically, the Supreme Court explained:
The core rationale consistently advanced
by this Court for extending the exclusionary
rule to evidence that is the fruit of
unlawful police conduct has been that this
admittedly drastic and socially costly course
is needed to deter police from violations of
constitutional and statutory protections.
This Court has accepted the argument that the
way to ensure such protections is to exclude
evidence seized as a result of such
violations notwithstanding the high social
cost of letting persons obviously guilty go
unpunished for their crimes. On this
rationale, the prosecution is not to be put
in a better position than it would have been
in if no illegality had transpired.
By contrast, the derivative evidence
analysis ensures that the prosecution is not
put in a worse position simply because of
some earlier police error or misconduct.
Id. at 442-43.
11. The court of appeals reasoned in part that the primary
purpose of the exclusionary rule is to deter official
lawlessness, and the application of the inevitable discovery rule
in such circumstances serves to temper the impact of the
exclusionary rule. On the other hand, in the immunity context no
deterrent purpose is served, as the purpose of exclusion is to
enforce the privilege against self-incrimination and the
government's promise. Hazelwood, 836 P.2d at 951-53.
12. The court of appeals appears to have weighed whether
Alaska law, rather than federal law, should recognize inevitable
discovery in immunity cases. See Hazelwood, 836 P.2d at 951
("For present purposes, we may assume that the inevitable
discovery doctrine would be adopted in Alaska in appropriate
cases . . . ."). The court's reliance on Justice Marshall's
dissent in Kastigar, see Hazelwood, 836 P.2d at 952 (quoting
Kastigar, 406 U.S. at 470-71 (Marshall, J., dissenting)), would
be appropriate had the court of appeals been deciding Alaska law.
But in this case we are interpreting federal law, and thus are
bound by the acceptance of the inevitable discovery rule in Nix
and the constitutionality of use and derivative use immunity in
Kastigar.
13. See 33 U.S.C. 1321(b)(5) (1988) (amended 1990) ("Any
such person . . . who fails to notify immediately such agency of
such discharge shall, upon conviction, be fined not more than
$10,000, or imprisoned for not more than one year, or both.").
14. The court of appeals further reasoned that Congress, not
the court, should decide if the inevitable discovery rule is
applicable to 33 U.S.C. 1321(b)(5). We disagree. Congress, in
drafting this statute, used terms of art that indicate use and
derivative use immunity. The role of this court is to interpret
the statute Congress has enacted, including the grant of
immunity, within the context of Supreme Court precedent.
15. As noted previously on remand the court of appeals may
be required to address several other specifications of error
raised by Hazelwood depending on its review of the superior
court's predicate findings regarding the applicability of the
inevitable discovery doctrine.
16. The scope of immunity articulated in Murphy v.
Waterfront Comm'n of New York Harbor, 378 U.S. 52 (1964), has not
been narrowed. Murphy, commented on with approval in Nix,
recognized the independent source doctrine, reaffirmed in
Kastigar.
Furthermore, one court has noted that the specific
federal statute in question requires that "prosecution be based
on evidence other than notification or information obtained by
exploitation of such notification." United States v. Republic
Steel Corp., 491 F.2d 315, 318 (6th Cir. 1974) (addressing 33
U.S.C. 1161(b)(4), which was later codified as 33 U.S.C.
1321(b)(5)). The court emphasized the policy underlying the
statute:
If [a person] . . . is denied protection
from prosecution based solely on such
reporting . . . in cases where it might be
difficult after passage of time to trace the
source of a discharge, there would be
incentive . . . to withhold reporting a
spill.
Id.
17. It remains my view that a case should be decided on as
narrow a ground as possible. Therefore, I would not have
addressed the constitutional issues until first addressing
whether the evidence supported application of or exceptions to
any exclusionary rule. Abood v. League of Women Voters of
Alaska, 743 P.2d 333, 345 n.3 (Alaska 1987) (Compton, J.,
dissenting); Deubelbeiss v. Commercial Fisheries Entry Comm'n,
689 P.2d 487, 491 (Alaska 1984) (Compton, J., concurring). The
court of appeals chose to approach the case differently, and thus
it is necessary to address the issues as the court of appeals has
arranged them.
18. The issue in this case is not whether Hazelwood himself
is immune from prosecution, but whether evidence derived from the
exploitation of Hazelwood's immunized report is admissible in a
prosecution against him. The issue also is not whether the
grounding of the Exxon Valdez, and resultant spillage of oil,
would have been inevitably discovered. The answer to that
question is too obvious to need comment.
19. Nix and its predecessor, Brewer v. Williams, 430 U.S.
387 (1977), involved the "Christian burial speech." Williams was
charged with abducting a young girl in Des Moines, Iowa, but was
arrested in Davenport, Iowa. Although the police agreed not to
question Williams en route to Des Moines, a detective told
Williams he wanted to give Williams something to think about
"while we're traveling down the road. . . . I feel that we could
stop and locate the body, that the parents of this little girl
should be entitled to a Christian burial for the little girl who
was snatched away from them on Christmas [E]ve and murdered." In
response, Williams asked the detective about the search for the
girl, whether the police had found specific items of the girl's
clothing, and why the detective thought they would pass near
where the girl was buried. Williams then attempted to assist the
police in locating items of the girl's clothing, and eventually
led them to the place where she was buried. The trial court
denied Williams' motions to suppress evidence relating to or
resulting from his statements. His conviction was affirmed by
the Iowa Supreme Court. In Brewer, Williams' conviction was set
aside on the basis of a clear violation of the Sixth and
Fourteenth Amendments to the United States Constitution. The
Supreme Court observed that
[w]hile neither Williams' incriminating
statements themselves nor any testimony
describing his having led police to the
victim's body can constitutionally be
admitted into evidence, evidence of where the
body was found and of its condition might
well be admissible on the theory that the
body would have been discovered in any event,
even had incriminating statements not been
elicited from Williams. . . .
Brewer, 430 U.S. at 406 n.12 (emphasis added). This comment
foreshadowed the Supreme Court's decision in Nix. It is
noteworthy that the police were searching for the abducted girl
before Williams made any statements and led the police to her
body. In the case before us, the government was not looking for
anything respecting the grounding of the Exxon Valdez until
Hazelwood made his immunized statement.
20. The Supreme Court's rationale is rooted in history. It
represents a pragmatic balancing of the integrity and fairness of
a criminal proceeding on the one hand, and law enforcement's
interest in obtaining reliable evidence on the other:
More than half century ago, Judge, later
Justice, Cardozo made his seminal observation
that under the exclusionary rule "[t]he
criminal is to go free because the constable
has blundered." Prophetically, he went on to
consider "how far reaching in its effect upon
society"the exclusionary rule would be when
"the pettiest peace officer would have it in
his power through overzeal or indiscretion to
confer immunity upon an offender for crimes
most flagitious." Someday, Cardozo
speculated, some court might press the
exclusionary rule to the outer limits of its
logic -- or beyond -- and suppress evidence
relating to the "body of a murdered" victim
because of the means it was found. Cardozo's
prophecy was fulfilled in Killough v. United
States, 114 US App DC 305, 309, 315 F.2d 241,
245 (1962) (en banc). But when, as here, the
evidence inevitably would have been
discovered without reference to the police
error or misconduct, there is no nexus
sufficient to provide a taint and the
evidence is admissible.
Nix, 467 U.S. at 448 (citations omitted).
21. The government's statutory mandate is "to restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters." The superior court described implementation of
this mandate as follows:
Polluting is generally always a crime.
However, legislative bodies have balanced the
need to abate and lesson [sic] pollution
against the need to present all probative
evidence in a criminal proceeding, and the
balance has resulted in providing immunity to
a polluter, in order to achieve regulatory
goals.
Memorandum Decision and Order, State v. Hazelwood, No. 3AN-S89-
7217 Cr./7218 Cr. (Alaska Super., December 29, 1989). It is
noteworthy that no activity taken by the government in
furtherance of its statutory mandate would have been restricted
in the least by the exclusion of compelled evidence in the
criminal proceeding against Hazelwood.
This point is relevant to the court's misplaced
conclusion that the inevitable discovery doctrine is "essentially
a variation on the independent source rule." Op. at 10.
Although the Nix Court stated that the inevitable discovery
doctrine is "functionally similar"to the independent source
doctrine, Nix, 467 U.S. at 444, the functional similarity is
limited to the fact that "exclusion of evidence that would be
inevitably discovered would also put the government in a worse
position, because the police would have obtained that evidence if
no misconduct had taken place." Id.
22. In Brown v. Illinois, 422 U.S. 590 (1975), the Supreme
Court observed that "[t]he exclusionary rule, . . . when utilized
to effectuate the Fourth Amendment, serves interests and policies
that are distinct from those it serves under the Fifth." Id. at
601.
23. It is difficult to conceive how Hazelwood's oral
statements -- specific pronouncements occurring at specific
points in time -- ever could have been "inevitably discovered."
Statements he made during the onboard investigation were used
against him in a criminal proceeding. I do not know how it can
be said that the government agents would have inevitably
discovered these oral statements. It is one thing to make the
tortured sequence of factual inferences -- would have, would
have, would have -- leading to the conclusion that government
agents would have arrived at the Exxon Valdez at about the same
time as they did, with or without Hazelwood's initial immunized
report. It is quite another to conclude that the agents would
have asked Hazelwood the same questions and would have been given
the same answers.
The practical problem with applying the inevitable
discovery doctrine to oral statements made by Hazelwood simply
highlights the fundamental analytical problem in applying the
doctrine to information derived from the exploitation of an
immunized statement. The government actually used "information
obtained by the exploitation"of an immunized statement to
convict the person compelled to make the statement. 33 U.S.C.
1321(b)(5). This violates the statute and the Fifth Amendment
privilege against self incrimination. Its use is not made any
more permissible by musings about what hypothetically might have
happened if the government had not used information derived from
the exploitation of an immunized statement.
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