*1 law.5 The trial was correct in enter-
ing a summary judgment in favor of de-
fendant.
AFFIRMED.
CONNOR, J., participating. CRUSE, Appellant,
Tim Michael Alaska, Appellee.
STATE of
No. 3344.
Supreme Court of Alaska. 13, 1978.
Oct.
5. Civil Rule 56. *2 Defender, Tatter, Ellen Asst. Public
Sue Defender, Shortell, Brian Public An- chorage, appellant. area, Scukanec,
David advised all Mercury Shimek John Asst. units that a white Balfe, Attys., Joseph Dist. Dist. Atty., matching parked D. at a Gross, Anchorage, and M. Atty. suspicious Avrum activity store and that Gen., Juneau, for afoot. appellee. parking When the left the lot, three troopers They followed it. *3 BOOCHEVER, Justice, Before Chief stopped Mercury the in a shopping center CONNOR, MATTHEWS, BURKE, and Jus- lot, parking units, and other stakeout as tices, DIMOND, and Justice. Senior well helicopter as a with a spotlight, con- verged trooper on the One scene. had the OPINION suspects lie on the ground away from the CONNOR, Justice. them, car and frisked while trooper another covered him shotgun. with a Trooper Leo Appellant Tim appeals Michael Cruse J. Brandlen reached into the Mercury to the judgment and commitment of the ignition turn off the and scanned the interi- superior finding guilty court him of rob- or of weapons, the car for money or other The presented by issue bery.1 appeal is evidence robbery. He saw some whether the trial erred in denying jackets, gloves, and, area, the back seat a suppress appellant’s motion to shopping bag containing baggies of materi- seized, warrant, pursuant to a from his thought marijuana. al he was pre- automobile trunk when the trunk had viously been without a searched warrant. Brandlen, believing suspects the were un- der although yet arrest words no had been September 30,1976, Stephan Pittman, On spoken effect, to called for a wrecker field man at the Drive-in Thea- Sundowner impound to Following the vehicle. stan- with Anchorage, ter in an altercation had trooper dard policy inventory the con- young men car who three in a white were impounded tents of all vehicles for other disturbing patrons. got other Pittman his opened than he evidentiary purposes, the eject supervisor’s permission trouble- trunk to inventory its contents. makers, but then that the car noticed was already leaving the He theater. watched it Sergeant Hutchinson arrived as Brandlen stop briefly gate at the theater and then opening was He a trunk. observed the next 1 n to 2 depart. spent revolver, long-barreled garden hose, a a and stand, at the minutes theater’s concession paper brown then bag. He advised Brand- area, upon leaving approached len Anchorage Department Police cashier, the theater Peck. Randall Peck the case and he charge would take just said he had robbed. Pittman wanted He closed the the car for evidence. occupants, described the white car and its get a trunk until warrant. An- he could agreed description and Peck fit his impounded chorage police inventory do not assailants. vehicles as a of course. Hutchinson matter later made the car was secure in sure that Anchorage Sergeant Police Archie Hutch- police keys turned the over garage and responded robbery call. inson After police to a investigator. Peck, interviewing Pittman he describ- suspects police ed the over the radio: a investigator The an affidavit to prepared 230; white car with ADF license number secure a He and an assist- search warrant. hair; young white without facial three men agreed attorney ant district not to tell the jacket; wearing one a one brown prior district about wearing jacket; blue down vest one judge signed until after the the warrant hair; brown, long, with another wavy because there was other sufficient bushy hair. cause to warrant. The warrant A in a Trooper, participating troop- State issued and full was made of the robbery er stakeout of stores in the car. several
1. AS 11.15.240.
fleeing suspects.
suppress
Cruse filed a motion to
all
store
of the items seized in the search.2 After a
stopped
quite
where the
hearing, the motion was denied and Cruse
very
close to
theater and
little time had
plea, reserving
entered'his nolo contendere
passed since
was broadcast.
right
appeal
ruling
the unfavorable
It makes no difference that the information
suppression
appeal,
his
motion.3 On
supplying
cause came from a
challenges only
propriety
Cruse
radio rather than
direct con-
long-bar
search of the trunk from which a
tact
arresting
between the victim and the
gun
approximately
reled
were
$990
long
officer as
the transmitting
as
officer
argues
seized. He
that his arrest and
had a reasonable basis to believe the de-
original
Brandlen’s
warrantless
scription
given.
Mattern v.
and,
search of the trunk were
there
(Alaska 1972).
Al-
fore, all
from that search
gleaned
though
posi-
Peck
stated
he could
*4
subsequent
and the
warrant search must be
assailants,
tively identify
provide
his
he did
suppressed.
general description
Hutchinson with a
of
Appellant
body
their
It
clothing.
contends
there was
sizes and
is true
insufficient
cause to arrest him that Pittman did not witness the actual
robbery
description
robbery,
very
sus
but the
short time interval
.because
pects
broadcast over the
radio was
stop
between
time he saw the white car
provided primarily by
inconclusive and was
gate
at the
and Peck’s announcement that
eyewitness
who was not
an
to the
occupants
robbed
of
robbery.
“suspi
He also stresses that the
car,
description
renders Pittman’s
of
activity” reported
cious
at the
store
suspects trustworthy.
We believe that
support
was insufficient to
an arrest.4
there
was sufficient
cause to ar-
appellant.
rest
The test for
cause to sus
tain an arrest
in Brinegar
was stated
v.
dispute
There is no
States,
160, 175-176,
338
69
U.S.
Brandlen’s initial search
the trunk
1302, 1311,
S.Ct.
93 L.Ed.
1890 conducted without a warrant. Warrantless
(1949):5
se,
per
searches are considered unreasonable
“Probable cause exists where ‘the facts
“subject only
specifically
to a few
estab
and circumstances within .
.
.
[the
exceptions.”
lished and well-delineated
knowledge,
they
and of which
officers’]
States,
347, 357,
Katz v. United
389 U.S.
88
information,
trustworthy
had reasonably
507, 514,
(1967);
19 L.Ed.2d
585
S.Ct.
sufficient in themselves to warrant
[are]
State,
(Alaska
v.
544 P.2d
838
Schraff
a man of reasonable caution in the belief
1975);
State,
v.
507 P.2d
514
Erickson
being
that’ an offense has been or is
(Alaska 1973). Appellant and the state de
committed.”
applicability
recognized
bate the
of various
exceptions
requirement
The white
was first noticed be-
to the warrant
cause it matched the radio
may may
which
not validate Brandlen’s
jack-
suspicious activity
2. The items seized were two
brown
4. The
consisted of the Mer-
ets,
jacket,
gun, approximately
cury occupants speaking
occupants
a blue
$990
of an
paper
Camino,
bag,
baggies marijuana.
putting something
a brown
and 4
El
in the trunk of
car,
entering
their
the store.
Appellant
appeal
right
reserved the
follow-
ing
plea
Cooksey
States,
Quoting
his nolo contendere
from
v. United
Carroll
State,
(Alaska 1974);
132, 162,
280, 288,
necessary
investigator’s
to address
hold that
warrant,
ure to
that
inform
district court
concealment would invalidate
already
Appel-
conducted.
information would
we must find
argues
prior police
lant
if
misconduct
materially
the district
have
influenced
court,
can be
from the
there-
concealed
judge
issue a warrant
by protect
might
otherwise
analysis is analo-
otherwise denied. Such
inadmissible,
be
there will be no deterrent
to the
where
gous
many cases
both tainted
against illegal
agree
We
searches.
presented
has been
and untainted evidence
concealment
of relevant material
magistrate
In
to a
in
of a warrant.
warrant
be
issuing the
cannot
con-
cases,
reviewing
those
has excised
However,
doned.
we
cannot find
such
unlawfully gained
pass-
evidence before
validity
concealment
vitiated
ing
validity
warrant.
warrant
case.
the lawfully obtained information
“[I]f
While there was sufficient inde
amounts to
cause and would
pendent probable
presented
justified
warrant,
issuance of the
warrant,
district court
issue the search
information,
apart
the tainted
we
protec
must note
constitutional
pursuant
seized
to the warrant
tion against
priva
warrantless invasions
is admitted.”
10cy
endangered by
the concealment of
James v.
U.S.App.D.C.
relevant facts from the district court issu
(1969).12
ing the
ex parte
warrant. Warrants issue
is logically possible,
urged by appel-
It
as
and the issuing
rely upon
court must
lant, to extend
the deterrence rationale
trustworthiness
the affidavit before it.
exclusionary
argue
any
rule
See also
illegality
in the
conduct nullifies the
(Alaska 1973). We believe
must
the court
entire
war-
investigatory process so that no
have all the
pertinent
facts before
can
rant
issue.
such an extension
order to determine whether there is suffi
cient,
would in our view exceed the sound limits
properly
providing
obtained evidence
*6
rule
exclusionary
cause
a
and deterrence
for warrant
to issue. Po
lice
prosecutors
principle by excluding
owe a
relevant
duty of candor to
and trust-
court,11
worthy
particularly in
of
the ex
evidence.
James v. United
See
parte
4;
proceedings,
supra,
nature of these
must
418 F.2d
1152 n.
Allen
756,
not
Cupp,
(9th
1970);
withhold
may
information which
taint
v.
F.2d
Cir.
they
595,
source of the
put
People
Stoner,
Cal.Rptr.
v.
Cal.2d
forth.
585,
897, 900-901,
(1967).13
422 P.2d
588-589
Const,
IV;
principle
10.
underlying
U.S.Const. amend.
Alaska
art.
13.Nor
does the second
exclusionary rule,
imperative
judicial
§ 14.
in-
tegrity,
require a
result
in
case.
different
this
Sears,
(Alaska
generally,
Relating
11.
See State v.
See
ABA
Standards
1976). Although
par-
2.8(a)
3.1(b) (Ap-
Prosecution
the courts should not be
Function
§§
conduct,
ty
proved
1971);
State,
illegal
to the use of the fruits of
we
Draft
Roberts v.
458 P.2d
1969).
(Alaska
have held
above that
not
was
product. Furthermore,
a
such
the initial trunk
search which we
assumed
not
have
was
Accord,
Capra,
United States v.
501 F.2d
egregious
judicial
integrity.
so
as to
267, 280-81,
offend
(2d
1974)
n. 12
Cir.
inventory
beginning
Brandlen was
an
95 S.Ct.
the search warrant.14
AFFIRMED.
RABINOWITZ, J., participating. not Justice,
BURKE, concurring.
I agree superior did not err appellant’s suppress, denying motion WOZNIAK, Appellant, Donald L. and that his conviction should be therefore reaching affirmed. that cor- apply clusion I the rule Chambers Alaska, Appellee. STATE of Maroney, U.S. (1970), that Trooper L.Ed.2d and hold No. 3589. Brandlen’s initial search of the automobile’s Supreme Court of Alaska. Daygee trunk was lawful.1 See (Alaska 1973)(Fitz- Oct. gerald, J., concurring). MATTHEWS, Justice, concurring. opinion majority fault with the finds
prosecutor police and the omitting for gained questioned
information supporting affidavit
request for warrant. the same At time
the opinion relies on the omission as a dem-
onstration warrant based on agree
untainted I information.
warrant not issued as a result of the search,
arguably illegal but I am pre-
pared prosecutor to criticize the and the filing affidavit did not gained
set forth the information which
in that to search. That was done eliminate
any contention that
the warrant was the
spot,”
express
opinion
We do not
as to whether
mobile “could have
searched on
demonstrably
saying:
an omission
with the delib
made
erate
intent mislead the court
vitiate a
purposes,
For
no differ-
constitutional
we see
warrant otherwise issued on sufficient facts.
seizing
ence between
the one hand
opinion
We also reserve
as to the effect of a
holding
presenting
before
car
deliberate false statement
in an affidavit for a
magistrate
cause issue to a
the other
and on
search warrant. See State v.
carrying
hand
out an immediate search with-
(Alaska 1973);
82 n. 6
Franks v. State
out a warrant. Given
cause to
Delaware,
-,
- U.S.
search, either course is
under the
reasonable
Tucker,
Commonwealth
Fourth Amendment.
Contra,
(Pa.Super.1978).