You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
David Nevers v. State or Alaska Department of Administraton Division of Motor Vehicles (10/28/2005) sp-5952
David Nevers v. State or Alaska Department of Administraton Division of Motor Vehicles (10/28/2005) sp-5952
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| DAVID NEVERS,
| ) |
|
| ) Supreme Court No. S-
11399 |
|
Appellant, | ) |
|
| ) Superior Court
No. |
|
v. | ) 3PA-02-562
CI |
|
| ) |
|
STATE OF ALASKA, | ) O P I
N I O N |
|
DEPARTMENT OF
| ) |
|
ADMINISTRATION, DIVISION | ) [No. 5952 -
October 28,
2005] |
|
OF MOTOR VEHICLES, | )
|
|
| ) |
|
Appellee. | ) |
|
| ) |
|
|
|
|
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Palmer,
Beverly Cutler, Judge.
Appearances: Verne Rupright and Tena Foster,
Rupright & Foster, L.L.C., Wasilla, for
Appellant. Richard W. Postma, Jr., Assistant
Attorney General, Anchorage, and Gregg D.
Renkes, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Justice, Eastaugh,
Fabe, and Carpeneti, Justices. [Matthews,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
After an Alaska state trooper stopped a car for a
broken headlight on the Parks Highway, the driver fled the scene
on foot. The police eventually tracked him to a Wasilla
residence. Officers entered the home without a warrant and
arrested the driver for driving while intoxicated. The driver
refused to submit to a chemical breath test, and the Division of
Motor Vehicles revoked his license for three years. The driver
appeals, challenging the warrantless entry and search of his home
as violations of the Fourth Amendment of the United States
Constitution and article I, sections 14 and 22 of the Alaska
Constitution, and arguing that evidence obtained against him as a
result of the search must be suppressed pursuant to the
exclusionary rule. The hearing officer ruled that the
exclusionary rule does not apply to license revocation
proceedings. The superior court affirmed. Because we hold that
the exclusionary rule does not apply to drivers license
revocation proceedings, we affirm.
II. FACTS AND PROCEEDINGS
A. Facts
At about 7:20 p.m. on March 2, 2002, Alaska State
Trooper Nathan Bucknall observed a red Subaru with a broken
headlight. Trooper Bucknall attempted to stop the vehicle,
giving chase for a quarter mile as the vehicle swerved across
both lanes of traffic. The Subaru then pulled over onto the
shoulder and drove for another one- to two-hundred feet, at which
point the driver stopped the car and fled on foot. The Subaru
was registered to David Nevers.
Trooper Bucknall found two male passengers inside the
vehicle, Jon Fleming and Robert Kull. The car smelled of alcohol
and was littered with beer cans and bottles. Both passengers
smelled of alcohol, had bloodshot and watery eyes, and swayed
when talking to the officer. Upon questioning, Fleming stated
that he did not know the driver, and Kull explained that they had
been picked up while hitchhiking home. Fleming appears to have
been less than truthful about not knowing the driver. David A.
Nevers, who the police later identified as the driver, was
renting a room in Flemings house.
Trooper Bucknall took Fleming into custody based on an
existing warrant for his arrest, while Trooper Doug Cook, who had
arrived on the scene within two to three minutes of the stop,
tracked the driver by following his footprints in the snow.
While following these tracks Trooper Cook found a three-day non-
resident fishing license issued to David A. Nevers lying in the
snow. After following the footprints for one hour and fifteen
minutes, Trooper Cook reached the front parking lot of a bar.
The bartender said that a person matching the description of the
driver of the Subaru had come into the bar and called for a cab,
saying that his car had broken down a few miles away. The
individual had a gash across his nose and told the bartender that
he was from New Hampshire. Trooper Cook conveyed this
information to Trooper Bucknall.
After arresting Fleming on the existing warrant,
Trooper Bucknall drove to the Wasilla address where the cab
company had dropped off the suspect. At the address, Trooper
Bucknall observed tracks matching those of the driver of the red
Subaru leading to an open back door which led into an attached
garage. Bucknall learned from a passerby that the house belonged
to Jon Fleming. Trooper Bucknall, joined by Wasilla police
officers, knocked on the garage door and, when nobody answered,
he entered the garage and then knocked on the house door inside
the garage. Receiving no response, Trooper Bucknall and the
Wasilla police officers entered the residence and conducted a
room-to-room search.
The officers found an individual asleep on the couch in
the front room of the house. Trooper Bucknall recognized the
person as the driver of the red Subaru. The individual presented
a New Hampshire drivers license that identified him as David A.
Nevers. The officers also found fresh vomit in the bathroom and
observed that Neverss boots were wet.
Trooper Bucknall questioned Nevers, who denied that he
had been driving that night but also said that his car had not
been stolen. Nevers said he had been drinking at home and had
placed the empty beer cans with the garbage at the front of the
house. However, Trooper Bucknall reported that he found only one
empty alcohol container, an old beer can, on the front porch, and
that the garbage bags were old, undisturbed and covered with
snow.
Trooper Bucknall gave Nevers a field sobriety test at
roughly 9:40 p.m. Nevers had trouble standing and understanding
instructions. Nevers passed the alphabet test but failed to
complete the numbers test, and submitted to a portable breath
test at 9:48 p.m., roughly two hours and eighteen minutes after
the initial stop. The portable test disclosed a breath alcohol
concentration of 0.158%. Bucknall then arrested Nevers for
driving while intoxicated (DWI),1 and the officers had to use
pepper-spray on Nevers because he became belligerent and
combative, threatening to kill the officers. Bucknall took
Nevers to the Alaska State Troopers Palmer Post for a Datamaster
breath alcohol concentration test, but Nevers refused to give an
adequate breath sample2 at 10:37 p.m., which was only forty-three
minutes from expiration of the four-hour limit provided by AS
28.35.030(a)(2). Bucknall then charged Nevers with refusal to
provide a breath sample and read him a Notice and Order of
Revocation.
B. Proceedings
The Division of Motor Vehicles administratively revoked
Neverss license to drive. Nevers sought administrative review of
the departments action under AS 28.15.166. Nevers appeared
before hearing officer Rebecca Janik and argued that the evidence
seized at the house, namely his breath sample, should be excluded
because [t]he police entered [Neverss] home without consent,
without a warrant, there were no exigent circumstances, and
interdicted him nearly two hours after they suspected he was the
person that fled the vehicle by the side of the road. Nevers
argued that because warrantless entry into a home is per se
unreasonable, the search was improper absent either exigent
circumstances or some other exception to the warrant requirement.
Nevers maintained that because exigent circumstances did not
exist and no other exception applied, the evidence must be
suppressed.
Relying on AS 28.15.166(g), the hearing officer ruled
that the administrative hearing was limited to two principal
issues: whether the arresting officer had probable cause to
believe that Nevers was driving and whether Nevers refused a
breath test. The hearing officer ruled that constitutional
issues could not be raised in an administrative hearing. Because
the hearing officer found that the trooper had reasonable grounds
to conclude that Nevers operated a motor vehicle while under the
influence, and that he refused the breath test, she found that
the divisions decision to suspend Neverss license should be
affirmed. Despite her ruling that constitutional issues cannot
be raised at an administrative hearing, the hearing officer
nevertheless made alternative findings regarding Neverss
constitutional claims. First, she held that Nevers lacked
standing to raise the claim that the police entered his house
without authority to do so because he was not arrested in the
room he rented. Second, she held that the police were in hot
pursuit and thus the entry and search fell under a valid
exception to the warrant requirement. Because Nevers had two
prior DWI convictions, the hearing officer revoked his license
for three years.3
Nevers appealed the decision to the superior court and
renewed his constitutional arguments. Relying on State v. Sears,4
the court held that the exclusionary rule does not apply to
license revocation hearings except where police conduct shocks
the conscience. Finding that it appeared that the officers in
good faith acted in investigating the incident in what they
reasonably believed was a prudent and appropriate manner, the
superior court affirmed the hearing officers decision.
Nevers appeals.
III. STANDARD OF REVIEW
We review license revocation hearings under AS
28.15.166(m), which provides that the court may reverse the
departments determination if the court finds that the department
misinterpreted the law, acted in an arbitrary and capricious
manner, or made a determination unsupported by the evidence in
the record.5 Where the superior court acts as an intermediate
court of appeals, we independently review the hearing officers
decision.6 For legal questions not involving agency expertise,
we apply the substitution of judgment standard.7 We also review
constitutional questions de novo,8 and will adopt the rule of law
that is most persuasive in light of precedent, reason, and
policy.9
IV. DISCUSSION
The Fourth Amendment Exclusionary Rule Is Inapplicable
to License Revocation Hearings.
Nevers maintains that evidence procured by the officers
warrantless entry and search of the home should be excluded
because the search violated fundamental rights under the United
States and the Alaska Constitutions. Although he does not cite
specific constitutional provisions, we assume that he relies upon
the Fourth Amendment to the United States Constitution10 and
article I, sections 1411 and 2212 of the Alaska Constitution.
The United States Supreme Court has long held that
absent exigent circumstances or some other exception, warrantless
police searches or seizures are per se unreasonable.13 Thus,
evidence obtained from an unconstitutional search or seizure is
inadmissible and must be excluded.14 As the search and seizure
protections under the Alaska Constitution are broader than those
under the Federal Constitution,15 we base our decision in this
case on the Alaska Constitution.
The state argues that Nevers may not challenge
revocation of his license on Fourth Amendment grounds because
such claims are outside the scope of license revocation hearings.16
The state bases its argument on AS 28.15.166(g), which it claims
limited the scope of revocation hearings to two issues: (1)
whether the law enforcement officer had probable cause to believe
that Nevers was driving a motor vehicle while under the
influence, and (2) whether Nevers refused to take a statutorily-
authorized chemical test.17 It also relies upon our decision in
State v. Sears, where we held that the Alaska Constitution does
not require the exclusion of illegally secured evidence in
probation revocation hearings.18 However, we noted in Sears that
we would apply the exclusionary rule in two situations. First,
we held that judicial integrity required application of the rule
where the police engaged in conduct that shocks the conscience.19
Second, we noted that if the police consciously directed an
unconstitutional search or arrest toward someone they knew was a
probationer, we would apply the exclusionary rule because in such
circumstances the police would have an incentive to engage in
unlawful searches that required the rules tempering effect.20 The
state maintains that license revocation hearings are comparable
to probation revocation proceedings, and therefore argues that
Sears prevents Nevers from raising the exclusionary rule. We
agree.21
In this case, as in Sears, determining whether to apply
the exclusionary rule requires balancing the costs of applying
the rule against its benefits.22 On the cost side of the
equation, application of the exclusionary rule to license
revocation hearings will in some cases frustrate the important
state interest in keeping drunk drivers off the road by excluding
pertinent evidence.23 Moreover, enforcement of the rule in
license revocation proceedings will significantly increase the
administrative burden of what is intended to be an informal
process;24 indeed, hearing officers in Alaska need not even be
lawyers.25 It can also be expected that applying the exclusionary
rule to license revocation hearings will result in longer and
more complicated hearings in many cases.
When measuring the benefits of applying the
exclusionary rule, we look mainly to its ability to deter
unlawful police conduct.26 In drivers license revocation cases,
as in Sears, we do not believe that applying the exclusionary
rule for search and seizure violations would add significant
deterrence because the police are already sufficiently deterred
from such unlawful conduct by the applicability of the
exclusionary rule to all criminal cases that may result from
their investigations.27 Thus, because we believe that the
benefits of extending the rule are marginal and that the costs
would be substantial, we join the majority of jurisdictions and
hold that the exclusionary rule is inapplicable to search and
seizure violations in administrative license revocation hearings.28
While a minority of courts have reached the opposite conclusion,
we decline to follow these cases because they involve statutory
regimes that differ from ours,29 assume without discussion that
the exclusionary rule applies to license revocation hearings,30 or
reflect a different judgment as to the exclusionary rules
deterrent effect.31
Although we conclude that the exclusionary rule
generally does not apply to license revocation proceedings, we
maintain intact the exceptions set out in Sears: We may apply the
exclusionary rule to police misconduct which shocks the
conscience, or is of a nature that calls for the judiciary, as a
matter of judicial integrity, to disassociate itself from
benefits derivable therefrom. . . .32 We believe that these
exceptions, when combined with the deterrent effect already
provided by the exclusionary rule in criminal proceedings, are
sufficient to protect the public and deter unlawful police
activity.
Nevers argues that this case falls under the second
exception to Sears action consciously directed against the
defendant and relies on Joubert v. State.33 In Joubert the court
of appeals excluded illegally seized evidence in a probation
hearing because the search had been consciously directed toward
the probationer and toward uncovering evidence for use in a
probation revocation proceeding.34 Given the probation officers
involvement in the search (from initiating the search to
participating in it), the governments attempt to justify the
illegal search under a condition of probation, and the fact that
the only action taken by the government after discovering cocaine
was to file a petition to revoke probation, the court of appeals
concluded that the sole apparent purpose of the search conducted
. . . was to find evidence that Joubert had violated the
conditions of his probation.35 These factors distinguish Joubert
from Neverss situation. In this case, the officer pulled Nevers
over for driving with a burnt-out headlight. After seeing Nevers
flee from the scene on foot and after discovering the strong odor
of alcohol inside the vehicle, along with the numerous beer
containers, the officer could have reasonably suspected Nevers of
DWI or other criminal behavior, and accordingly initiated a
criminal investigation that is, an investigation designed to
yield evidence for a criminal proceeding. While the search of
the house in which Nevers was renting a room may have ultimately
been performed unlawfully an issue upon which we express no
opinion36 the record shows that it was done pursuant to this
criminal investigation, in contrast to Joubert where it was clear
that the officers primary motive was to seize evidence for use in
a probation hearing. Nevers must do more than simply cite to
Joubert; he must show that the officers in this case, like the
officers in Joubert, acted with the purpose of seizing evidence
for use in a civil hearing. Because he has not even made this
suggestion, his argument must fail. Simple awareness of the fact
that a suspect may be subject to a civil proceeding is not enough
to require application of the exclusionary rule. Allowing
defendants to invoke the exclusionary rule whenever an officer
may have known that the suspect could be subject to some civil
proceeding would turn the phrase consciously directed into mere
surplusage. We therefore reject Neverss argument that Joubert is
persuasive in this case.
Nevers also relies on Whisenhunt v. State, Department
of Public Safety,37 where we applied the exclusionary rule in a
civil license revocation proceeding to exclude a breathalyzer
test secured in violation of the right to counsel.38 Noting that
drivers have an important property interest in their licenses and
that in many cases the license revocation is the most important
and long-lasting sanction imposed on the defendant, we rejected
the states argument that Sears precluded application of the
exclusionary rule to license revocation hearings where the right
to counsel was violated.39 However, Whisenhunt is part of a
series of cases where we required that license revocation
hearings meet standards of procedural fairness; these decisions
were designed to ensure that drivers be accorded fair and
meaningful hearings. Accordingly, we have held that due process
forbids the state from denying drivers in-person revocation
hearings when credibility is at issue,40 that it requires that the
state preserve sobriety test videotapes41 and breath test samples,42
and that it requires hearing officers to determine whether a
defendant was actually driving the motor vehicle.43 These
decisions involved the procedural protections necessary to
preserve defendants right to a fair hearing.44 Violations of the
Fourth Amendment, on the other hand, do not undermine the
procedural fairness of the hearing. In addition, while the
violation of the right to counsel or the denial of an opportunity
to challenge evidence may undermine the fairness of a hearing
because such safeguards help to ensure the reliability of the
evidence, application of the exclusionary rule for search and
seizure violations has the opposite effect because it is nearly
always the case that such evidence is relevant and reliable.45
The driving privilege is important enough to require that
individuals facing license revocation enjoy basic procedural
protections, but it does not follow that defendants are also
entitled to application of the exclusionary rule for violations
of the Fourth Amendment or Alaskas search and seizure provisions.
Given that the exclusionary rule serves a unique purpose, that
is, deterring police misconduct, it is distinguishable from the
procedural protections that we upheld in our other cases.
In sum, application of the exclusionary rule will
hamper legitimate efforts to keep drunk drivers off the roads and
complicate the administration of license revocations while adding
minimal deterrence to unlawful police action. In addition,
consideration of evidence obtained in violation of the Fourth
Amendment does not undermine the procedural fairness of
revocation hearings. For these reasons, we affirm the hearing
officers determination that the exclusionary rule is inapplicable
to license revocation proceedings.
V. CONCLUSION
Because the exclusionary rule does not apply to license
revocation proceedings (in the absence of shocking police
misconduct in the obtaining of evidence or police action
consciously directed at a probationer), the hearing officer
correctly admitted the evidence of Neverss intoxication and
refusal to submit to the breath test. Accordingly, we AFFIRM the
revocation of his drivers license.
_______________________________
1 AS 28.35.030(a).
2 AS 28.35.032(a).
3 AS 28.15.165(d) incorporates AS 28.15.181(c)s
requirement that a third DWI offense results in a three-year
minimum license revocation.
4 553 P.2d 907 (Alaska 1976).
5 Saltz v. State, Dept of Pub. Safety, 942 P.2d 1151,
1152 n.2 (Alaska 1997) (citing Miller v. State, Dept of Pub.
Safety, 761 P.2d 117, 118 n.2 (Alaska 1988)).
6 Pasco v. State, Dept of Admin., 45 P.3d 325, 326
(Alaska 2002).
7 Id.
8 Id.
9 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
10 The Fourth Amendment provides:
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.
11 Article I, section 14 provides:
The right of the people to be secure in their
persons, houses and other property, papers,
and effects, against unreasonable searches
and seizures, shall not be violated. 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.
This right is substantially the same as the Fourth Amendment to
the federal constitution, but has broader coverage in that it
also protects other property. Schultz v. State, 593 P.2d 640,
642 n.5 (Alaska 1979); Ellison v. State, 383 P.2d 716, 718
(Alaska 1963).
12 Article I, section 22 provides that [t]he right of the
people to privacy is recognized and shall not be infringed. We
have recognized that where a search is alleged to be
unconstitutional, section 14s standards for a proper search and
seizure are inexorably entwined with section 22s privacy
protections. Anchorage Police Dept Employees Assn v.
Municipality of Anchorage, 24 P.3d 547, 550-51 (Alaska 2001)
(citing Woods & Rohde, Inc. v. State, Dept of Labor, 565 P.2d
138, 150-51 (Alaska 1977)).
13 See, e.g., Illinois v. Rodriguez, 497 U.S. 177, 191
(1990) (a search or seizure carried out on a suspects premises
without a warrant is per se unreasonable unless the police can
show that it falls within one of a carefully defined set of
exceptions) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 474
(1971)); Payton v. New York, 445 U.S. 573, 589-90 (1980) ( at the
very core of the Fourth Amendment stands the right of a man to
retreat into his own home and there be free from unreasonable
governmental intrusion. . . . Absent exigent circumstances, that
threshold may not reasonably be crossed without a warrant.)
(quoting Silverman v. United States, 365 U.S. 505, 511 (1961)).
14 See, e.g., Ellison, 383 P.2d at 718 (exclusionary rule
applicable to state courts) (discussing Mapp v. Ohio, 367 U.S.
643, 654-55 (1961)).
15 Anchorage Police Dept Employees Assn, 24 P.3d at 550.
16 This is a question of first impression. In prior cases
we did not consider whether the exclusionary rule could be
applied for search and seizure violations in license revocation
hearings. See Fraiman v. State, Dept of Admin., 49 P.3d 241, 244
(Alaska 2002); Miller v. State, Dept of Public Safety, 761 P.2d
117 (Alaska 1988). Because we believe a decision will provide
guidance to litigants and hearing officers on a recurring issue,
we now reach this issue.
17 AS 28.15.166(g) states in relevant part:
The hearing for review of action by the
department under AS 28.15.165 shall be
limited to the issues of whether the law
enforcement officer had probable cause to
believe that the person was operating a motor
vehicle or commercial motor vehicle that was
involved in an accident causing death or
serious physical injury to another, or that
the person was operating a motor vehicle,
commercial motor vehicle, or aircraft while
under the influence of an alcoholic beverage,
inhalant, or controlled substance in
violation of AS 28.33.030 or AS 28.35.030 and
whether
(1) the person refused to submit to a
chemical test authorized under AS
28.33.031(a) or AS 28.35.031(a) or (g) after
being advised that refusal would result in
disqualification or the suspension,
revocation, or denial of the persons license,
and that the refusal is a misdemeanor;
(2) the chemical test administered under
AS 28.33.031(a) or AS 28.35.031(a) or (g)
produced a result described in AS
28.35.030(a)(2); or
(3) the chemical test
administered
under AS
28.33.031(a)
produced a
result
described in AS
28.33.030(a)(2)
.
18 State v. Sears, 553 P.2d 907, 912-14 (Alaska 1976).
Sears also held that former Criminal Rule 26(g), which governed
the exclusionary rule in criminal proceedings, was inapplicable
to probation revocation proceedings. Id. at 909-11. Evidence
Rule 412 replaced former Criminal Rule 26(g) by Supreme Court
Order on August 1, 1979, the day the Alaska Rules of Evidence
went into effect. Harker v. State, 663 P.2d 932, 934 n.3 (Alaska
1983). Evidence Rule 412 is similarly inapplicable to informal
license revocation hearings, where the rules of evidence do not
apply. AS 28.05.141(a); Glascock v. State, Dept of Pub. Safety,
890 P.2d 65, 67 (Alaska 1995).
19 Sears, 553 P.2d at 912-14.
20 Id. at 914.
21 We recognize that there may be two exceptions to our
conclusion that the exclusionary rule is inapplicable in license
revocation proceedings. First, where a Fourth Amendment
violation stems from a lack of probable cause for a DWI arrest,
exclusion may well be mandated because probable cause is an
affirmative statutory element of the offense of refusal and is an
affirmative element for proof in the license revocation
proceeding. Second, since the implied consent statutes prohibit
further blood or breath tests in the event of a refusal (except
in certain specified situations) a search for blood evidence in
direct violation of these statutory prohibitions would probably
require exclusion of the test results in a subsequent
administrative license revocation proceeding that was based on
the result of the impermissible blood test. See cases infra n.29.
22 Sears, 553 P.d at 912; see also United States v. Janis,
428 U.S. 433, 453-54 (1976) (we conclude that exclusion from
federal civil proceedings of evidence unlawfully seized by a
state criminal enforcement officer has not been shown to have a
sufficient likelihood of deterring the conduct of the state
police so that it outweighs the societal costs imposed by the
exclusion.).
23 See Tornabene v. Bonine ex rel. Arizona Highway Dept,
54 P.3d 355, 362
(Ariz. App. 2002); Chase v. Neth, 697 N.W.2d 675, 684-85 (Neb.
2005).
24 See Powell v. Secy of State, 614 A.2d 1303, 1307 (Me.
1992) (application of exclusionary rule would unnecessarily
complicate and burden administrative proceeding); Riche v. Dir.
of Revenue, 987 S.W.2d 331, 334 (Mo. 1999).
25 AS 28.05.141(a) states in relevant part:
Hearings must be informal, and technical
rules of evidence do not apply. . . . A
hearing officer need not be an attorney, but
must be impartial and may not have
participated in the decision that is under
review.
26 Sears, 553 P.2d at 912. See also Janis, 428 U.S. at
454 (the prime purpose of the rule, if not the sole one, is to
deter future unlawful police conduct. ) (quoting United States v.
Calandra, 414 U.S. 338, 347 (1974)).
27 See Tornabene, 54 P.3d at 365-66 ([I]t strikes us as
extremely unlikely that officers would [conduct illegal stops]
merely with the hope of obtaining license suspensions, knowing
that evidence of intoxication obtained from such an encounter
would be inadmissible in any criminal DUI prosecution and that
clearly impermissible police conduct could subject officers to
civil liability. See 42 U.S.C. 1983.); see also Janis, 428 U.S.
at 448 (extending exclusionary rule to civil tax proceeding is
unnecessary because police are sufficiently deterred from
unlawful conduct by exclusionary rule in state and federal
criminal proceedings).
28 See Chase, 697 N.W.2d at 683-84 (noting that majority
of courts to consider issue have not applied exclusionary rule to
license revocation hearings, adopting majority position, and
listing cases). Accord Tornabene, 54 P.3d 355; Fishbein v.
Kozlowski, 743 A.2d 1110 (Conn. 1999); Powell, 614 A.2d 1303;
Riche, 987 S.W.2d 331; Jacobs v. Dir., N.H. Div. of Motor
Vehicles, 823 A.2d 752 (N.H. 2003). See generally Thomas M.
Fleming, Annotation, Admissibility, in Motor Vehicle Licensing
Suspension Proceedings, of Evidence Obtained by Unlawful Search
and Seizure, 23 A.L.R. 5th 108 (1994).
29 People v. Krueger, 567 N.E.2d 717 (Ill. App. 1991)
(statutory language required application of exclusionary rule in
license revocation proceeding); Pooler v. Motor Vehicles Div.,
755 P.2d 701 (Or. 1988) (same).
30 Olson v. Commr of Pub. Safety, 371 N.W.2d 552
(Minn.1985).
31 State v. Lussier, 757 A.2d 1017 (Vt. 2000). We also
note that, contrary to the situation in Alaska, the venue in
Vermont for a civil drivers license suspension hearing is the
district court. Id. at 1018.
32 Sears, 553 P.2d at 914.
33 926 P.2d 1191 (Alaska App. 1996).
34 Id. at 1195.
35 Id. at 1192, 1195.
36 Accordingly, we express no opinion on the hearing
officers conclusions that Nevers lacked standing to attack the
search and that the search was justified by the hot pursuit
exception to the warrant requirement.
37 746 P.2d 1298 (Alaska 1987).
38 Id. at 1300.
39 Id. at 1299 & n.6.
40 Whitesides v. State, Dept of Pub. Safety, 20 P.3d 1130
(Alaska 2001).
41 Thorne v. State, Dept of Pub. Safety, 774 P.2d 1326
(Alaska 1989).
42 Champion v. State, Dept of Pub. Safety, 721 P.2d 131
(Alaska 1986).
43 Javed v. State, Dept of Pub. Safety, 921 P.2d 620
(Alaska 1996).
44 See Thorne, 774 P.2d at 1331 (characterizing
protections recognized in Thorne, Whisenhunt, and Champion as
procedural safeguards).
45 United States v. Janis, 428 U.S. 433, 447 (1976).
