Mattern v. State

MATTERN, Appellant, James Alaska, Appellee.

STATE

No.

Supreme of Alaska. Court

Aug. produced

and seizure which items admitted appeals evidence in his trial. He also imposed. from the sentence Alaska, May Ketchikan, On Merrell in the Mrs. was awakened middle night of the the sounds of drawers or apartment slamming closets in the below. Mrs. Merrell was startled because she Krebs, occupant of the knew that Carol apartment, away lower was on vacation. police, told them there called the She hers, apartment someone in the below away, occupant and asked for that the calling police, Mrs. assistance. any Merrell did not hear more sounds. the front windows of her She walked to apartment overlooking street and saw a parked seen before vehicle she never car, she iden- across the street. The van, Dodge began to tified as a white slowly northward down the street move again lights Mrs. Merrell no on. van, describing its police, called the direction, lights that the were and the fact turned off. and Preshaw Friedricks

Officers were on Department City Police Ketchikan they received patrol when routine po- from the a. 4:00 m. call around radio burglary awas dispatcher that there lice they As were Avenue. progress on Second address, re- proceeding towards dispatcher from the call second ceived a leaving Dodge van a white A lights off. with its premises burglary spotted two officers later few minutes van, Dodge vehicle, white appellant’s Bookman, Public Defend- Asst. A. Bruce on, on Sec- northbound any lights without Rovins, Pub- Barry Asst. Anchorage, er, J. van, and stopped the They Avenue. ond Soli, Ketchikan, Herbert Defender, lic Edwardson, of the Ketchikan also Sergeant appellant. Defender, Anchorage, for Public began Police, scene and City on the arrived Ketchikan, Atty., Hawley, Dist. H.W. questioning appellant. Gen., Juneau, Havelock, Atty. E. John during the movements appellee. Officer Preshaw’s According interrogation are unclear. RABINOWITZ, BONEY, J., Before C. policemen, went to the three Preshaw ERWIN, CONNOR, and JJ. and, either stand- side of the van driver’s OPINION running the van’s ing in the street or on board, light into the back shone CONNOR, Justice. appeared to be what where he saw van burglary, conviction appeal from a On wig. In an slip blond black woman’s a search validity of contests appellant TO AN EVIDEN- appellant’s FAILURE HOLD motion supporting affidavit TIARY HEARING during legal argu- suppress evidence motion, appellant’s counsel ment on that Appellant urges that the court committed wig had not been slip and stated that evidentiary hear- denying him an error but that on of the officer plain view suppress when factual his motion to being contrary, Mattern was while papers moving raised issues policemen, the by of the two questioned par- conflicting of the the affidavits and general a to conduct van entered the third ties. slip and interior, finding the search of the wig. opposing had and the state discovery of the women’s of the versions officers, the two Leaving Mattern Appellant claimed that apparel in the van. scene of went to the Edwardson Sergeant product illegal an en were the the items the ser- let Mrs. Merrell burglary. the his van conducted one try and search of apartment with Krebs’ geant into Carol police immediately after of the officers There given her. Ser- key her friend being ques and while he was stopped evidence found some geant Edwardson by the two other officers. tioned him told Merrell entry and Mrs. illegal suppress, to as opposed the motion state lingerie were wig and some blond plain serting that the items were sergeant apartment. The the missing from through the windows officers view them to and asked his men contacted then of the van.1 apartment. slip wig and to bring the slip, officers wig and to the In addition re- times Appellant’s counsel several housecoat, yellow brassiere found hearing his mo- evidentiary an on quested All these purse inside the van. empty an the af- suppress. considering tion to to Carol belonging as identified items were Ed- Sergeant appellant fidavits of the counsel, Krebs. hearing argument wardson and appellant’s request for an denied judge requested an evi- appellant trial Before evidentiary hearing. The stated that judge suppress dentiary hearing on his motion unnecessary since he be- hearing a full de- found the van. The the items the evi- lieved the officer’s affidavit grant- suppress without nied the motion plain through the win- dence was in view Appellant hearing. evidentiary ing an dows of the van. dwelling burglary in a convicted of sup law Under Alaska on a motion imprisonment. months’ to 18 sentenced evidence, press judge magistrate or “[t]he Mat- this conviction and sentence From issue of any shall receive evidence on fact points appeal: failure tern raises four 2 necessary to the decision of motion.” evidentiary on his mo- hearing to hold an interpreted the The federal courts have search, ille- suppress, illegal an an tion to evidentiary require above clause3 to an arrest, gal and an excessive sentence. hearing petition alleges facts when a “ [ljooking parked through there no search 1.It is well settled into a car is. objects policeman search, observes when a the windows does not constitute a plain though nighttime Harris fall within his view. it and the items even is States, only United 88 can be seen with the aid of a flash- (1968) ; 992, light.” Klocken- 19 L.Ed.2d 1067 (Alaska State, McMillin, P.2d 961 brink 472 P.2d State v. 206 Kan. (1970). People 1970) ; State, See also Weltz v. 431 P.2d Exum, 382 Ill. 47 N.E.2d 56 (Alaska 1967) ; P.2d Brown v. 37(c). (Alaska 1962). plain 2. Alaska K.Crim.P. Under have almost uni (c) view rationale courts identical Alaska R.Crim.P. is versally 41(e). found that Fed.R.Crim.P. case, anyone if inside. that is the grant is When which, proved, require if if clearly illegal it would be suppress.4 ing of the motion opened doors went further have should not The trial court safety can ensure their vehicle. Since evidentiary hearing on an refused hold windows, through any fur- by looking police offi ground that he believed the into the vehicle’s interior ther intrusion exclusion cer’s affidavit to the purpose conduct- could for the Rule Under Criminal defendant.5 Here structure illegal search. have 37(c) if the state and the defendant that, according such to the of the van was de opposing versions of facts and appellant, police did not have clear supportive of alle is fendant’s version in- view of interior. The its search, gation illegal of an then eviden- vestigating felony and their in- a serious tiary hearing The court’s must be held. did concerning formation the crime harmless, however, error in this case accomplices. preclude possibility of even since have determined that under we therefore, right They, the ensure had to appellant’s description, the search was fact safety briefly stepping their own into valid. purpose seeing van of the for the limited Appellant alleged police that the unoccupied.7 that it was through could see not the evidence the rather, windows; only they van’s discov LEGALITY OF SEARCH police

ered the after evidence one men offi entered the van. We view the error Mattern’s second contention of is entering legiti cer’s in action the van as even under of that the state’s version the danger potential mate of the because the to discovery apparel of the women’s the police possible accomplices officers from van, illegal. According the search was to hiding within Ordinarily the van.6 when police they Mattern the officers stated that police stop a vehicle it sufficient for through only could see the evidence the protection their look they merely that they van’s when the window stood on run- through the windows to order determine weapons persons 751, States, house could for v. Cohen United F.2d 378 Hayden (9th 1967) ; [the arrestee] have that insured v. 760-761 Battle Cir. Unit- only present States, U.S.App.D.C. the 221, was the man and that ed 120 345 police weapons 438, (1965) ; had control all which F.2d 440 v. Hoffritz Unit- of States, against (9th 109, them effect could used or to ed be 240 F.2d 112 Cir. escape.” 1956). an 5. The state conceded error in the trial exception re- warrant to the search 7.This evidentiary failure hold an court’s to hear- exceptions quirement is strict- like all such appellant’s suppress motion to exigency ly allows the limited to recommended that this court remand the arresting protection of- the it —the suppression hearing. for a this ease In California, U.S. v. 395 ficers. Chimel jurisdiction, however, a confession er- 685 L.Ed.2d 23 S.Ct. 89 ap- ror not the does relieve court of its 1,19, ; Terry Ohio, (1969) 88 U.S. pellate function. Marks 496 P.2d 20 L.Ed.2d S.Ct. (Alaska 1972). permissible Therefore, be not it would they Maryland Warden, Penitentiary police a van if to the search In for their lives Hayden, 298-299, to fear cause no reasonable danger: example, (1967) the ar- if for L.Ed.2d were or traffic violation a minor were for stated rest police fear reason to had no Fourth Amendment does not re- if the “The delay accomplice quire police hidden could officers to legitimately may police investigation of an if do so van. Nor course hide: gravely endanger not could where a man their or the search areas lives seats, compartment, glove Speed under was essen- lives of others. here thorough tial, search etc. hardly ordinary burglary. the fruits the ev- Appellant claims

ning board.8 police admitted at plain view The officers themselves officers’ idence was they clothing trial that did consider running board to use the they had since feel, important when it. they first saw We the van. the interior of into to see order however, present factors the evi- other argues that appellant Therefore police were give case sufficient illegal search. product of an was the dence probable appellant stated, cause arrest be- already officer we have As fore discovered that articles of wom- necessary precautions ensure may take apart- clothing missing en’s make stops safety when he a vehicle ment. If it were arrest for serious offense. on the necessary for the officers to stand Probable cause to arrest exists to view the running board in order van’s when “the facts and circumstances before van, legiti- would be interior of the it are the officer such as to warrant man protect them- action of mate prudence believing caution in possible accomplices. against selves the offense has been committed” and that

the defendant it.9 committed Probable LEGALITY OF SEIZURE by any cause is not mathemati determined formula, but by cal the factual context of the evidence Appellant next claims that particular case.10 It has been said that seized, it was illegally as in the van substance all the definitions’ of “‘[t]he illegal For product of an arrest. probable ground cause ‘is a reasonable appellant assumes argument, sake of ” 11 guilt.’ belief of apparel offi- that the women’s was probable The state that the cause asserts stopped they when first plain cer’s view upon to arrest Mattern based was two states, however, ar- that his the van. He police indicating radio a burgla- broadcasts illegal was rest at the scene ry, the fact that Mattern’s van was seen upon probable based cause. since it was not leaving reported burglary the area of the detention, ap- according illegal to This headlights, appel- without fact that and the gave police opportunity to pellant, lant, driving home, who claimed to be seize the evidence in the van when past drove his home. of women’s later discovered that items clothing missing from Carol Krebs’ police dispatcher The told the ar apartment. resting burglary officers that a was in progress reported burglar and then

Appellant is in his correct assertion leaving Dodge was the scene in a white discovery that the clothing women’s relayed lights. van without Information did not add to policemen’s van indi- may police police officer radio probable via the cia of cause to make an arrest. probable provide to arrest.12 How A cause few used items of clothing women’s are denied, 118, 859, cert. 379 85 S.Ct. 8. U.S. Officer Preshaw indicated that he used (1964). running 62 13 L.Ed.2d the van’s in- board to view Sergeant However, terior of the vehicle. Draper 307, States, 10. v. 358 U.S. United Edwardson not did not have to use (1959) ; 313, 329, 3 L.Ed.2d 327 79 running board to his view aid U.S.App.D.C. Bailey States, v. United 128 interior, van’s he the van testified that 354, 305, (1967). F.2d 389 308 running did not have a board. States, Brinegar U.S. 11. v. United 338 132, States, 9. v. United U.S. Carroll 267 175, 1302, 160, L.Ed. 1879 69 S.Ct. 93 280, 161, 288, L.Ed. 45 S.Ct. 69 543 States, (1925) ; Draper see also v. United Whiteley Wyoming 307, 313, 329, of State v. Warden 3 L.Ed. 358 U.S. 79 S.Ct. Penitentiary, (1959) ; Brinegar 91 S.Ct. U.S. 2d 327 United Ward, (1971) ; States, L.Ed.2d 306 State 69 S.Ct. (Mo.1970). (1949) ; 93 L.Ed. Goss 457 S.W.2d (Alaska), State, 390 P.2d 223-224 ever, THE APPEAL officer furnishes evidence SENTENCE when one arrest, which leads to another officer burglary At time of the Mattern prove the reasonable basis the state must old, unmarried, employed as a years and of the former information.13 officer’s school general with the maintenance man dispatch upon based Mrs. Mer- radio Despite burglary district in Ketchikan. police heard nois rell’s call to the that she conviction, persons con- reputable several empty apartment es in her below. friend’s nected the school district adminis- reported She also an unfamiliar teaching capacities came for- trative and lights. leaving the area without hearing testify sentencing ward at the character, open good Mattern’s large city In a Mrs. Merrell’s re manner, friendly dependability and port furtive Mattern’s good work habits. per scene leaving manner Texas, particularly of a belief haps be evocative Longview, Mattern was born in In a burglary had been committed. completed that a He of five children. oldest neighbors often anon large urban area are years has his G. of school and received Ketchikan, however, ymous. relatively is a high left school in 1961 to enter E.D. He likely community people discharge are small where Navy, receiving an honorable neighbors however, interested their are he reenlisting, know An of their unfa year’s and aware movements. and sentenced to a convicted larger city might in a not arouse miliar car of a confinement wilful disobedience suspicion but be noticed in a smaller it will superior he refused to serve officer when community. feel Mrs. Mer- Thus we He con- also received a bad Yiet Nam. report to the someone was rell’s discharge. only previous is his duct This apartment neighbor’s empty in her illegally to have been conviction. The action seems strange subsequent pacifist and the behavior strong, con- prompted by personal, driving away his car defendant victions. night, apartment in the middle of the

this probation told the officer headlights passing benefit of without burglary did intend to commit ' street, although po by he told the his own apartment. at It late Miss Krebs’ was home, going he was are sufficient lice drinking and under night, he had been give police probable cause this case to He unexplained some emotional stress. committed a to that Mattern had believe only partially recall oc- claims what apartment.15 night. not remember burglary14 in Krebs’ curred that He does Carol (Alaska 1964), approves Superior Court, v. 2 Cal.3d which of 13. Remers However, stop practice. Cal.Rptr. 202, note we P.2d and frisk that, many jurisdictions (1970). al- which unlike practice, a have low does not this Alaska part reads AS 11.20.080 forcibly authorizing statute person breaks enters “A who and a probable stop on than cause citizen less a dwelling commit house intent that It be noted to arrest. should also it, having a crime or entered with that members of the United States Su- several dwelling intent, a . breaks house begun preme to reevaluate have Court ” guilty burglary . . . is . of Terry opinion. opinion In a recent expressed concurring con- Brennan same Erwin in his 15. Our brother Justice that, Friendly Judge opinion it is unless that action cern of concludes stop danger legitimate check, that held in there is a in this case under sluicegates “Terry opened the the Su- will have and frisk doctrine enunciated Ohio, Terry preme of the erosion 392 U.S. for and unintended Court serious protection Amendment.” the Fourth 20 L.Ed.2d 889 88 S.Ct. proper Williams, not this do feel that case is a We Adams - and 32 L.Ed.2d for discussion (dissenting question. language (1972) opinion). our frisk There opinion in P.2d 220 Goss suffering tion. said that apartment, nor does Mattern into the She got how he hysterical placed a neurosis and if clothing. His first from on taking the remember probation when would benefit from treatment at memory the event was coherent Gateway Mental of the Health Center. in the van outside he found himself ap- apartment clasping items of women’s sentence, imposing In the 18-month parel. court stated: sentence, “The reasons described the inci- probation officer The you’re present court feels that at the time report: presentence in his dent as follows yourself, you’re danger a unable offense, it particular regards to this “In society. agree to the laws of conform I experiences Mr. Mattern is evident that psychiatrist you with the need some during reality, in that split psychiatric treatment. I that about note crime, experi- he was time of the actual the —near the the bur- same time 5/3/70 en- fantasy and that he encing state of glar dwelling, entered contribut- 6/27/70 apartment with the tered this woman’s minor, delinquency to the of a so it type of seeking some purpose sole you’ve going through like looks been re-enforcement physical or psychological phase may you’re continue unless sense intend in the truest and did not institutionalized and that’s the reason for a criminal offense.” commit in- you the court’s belief that should be Well, stitutionalized. . . . this is probation officer recommended The very you serious offense when break possibility that Mattern because apartment into house or someone’s again, offense commit the the law so considers it.” problems, psychological many of his view 18 months that Mattern incarcerated for find the 18-month sentence We any early parole. The he receive and that too on the facts of this The severe case. sentence, five-year recommended a state court’s asserted reasons for the sentence army conviction indicating that Mattern’s supported are not the record. In addi proved the de- present offense tion, probation penal feel thar and not we willing by the laws to live fendant was particularly appropriate in incarceration is society. light of the circumstances of the offense state of mental the defendant. appellant’s counsel asked that place probation requiring The court based the sentence on three psychiatrist. to a Counsel stated visits going factors: the defendant was Mattern had acted this incident on phase, through a criminal that the defend- moment, spur that he was danger himself, ant was a and that he psychiat- in type criminal and was need of was unable to conform to the laws of soci- help. ric Counsel indicated that Mattern ety. record, had an excellent work and that his finding that community very associates the all The court based its were reputable emphasized going through defendant was a criminal people. He that an incarceration, phase, necessitating upon plan his excellent for Mattern’s rehabilitation community. his belief that the defendant committed the was available in the Clarke Cochrane, contributing delinquency offense of to the director of the rehabilitation Ketchikan, burglary. shortly house in if Mattern a minor after the In stated that of placed probation judge fact the said that the sentences in were he could secure concurrently. run employment through the rehabil- both offenses would immediate Mertz, However, itation ex- the defendant never tried on project. house Dr. the case, contributing amining delinquency the the of a psychiatrist advised good proba- charge, and dismissed that Mattern was a risk for minor the case was apparent that is a man stated It Mattern prosecution.16 have for We lack community who good with a record place a court not should many times community, prior police infringed the laws has on a defendant’s weight undue ordinary predilec- an sentencing process.17 through not criminal during contacts all, through diffi- psychological of its some part, if not tion but court based Here the conclude, therefore, going that incar- culty. the defendant was We findings—that penal phase he was in a would and that ceration institution through a criminal society— inappropriate only in Mattern’s case but conform to laws of be unable to might aggravate present after difficul- upon dismissed even charge ties, making reintegration of alone the eventual sentencing hearing. This fact community into more remand for a new sentenc- the defendant require goals penal difficult. The twin admin- ing hearing. Alaska, of the of- istration reformation finding appellant was The court’s public,19 protect and the need to fender by supported danger to himself is also not best met in if Mattern is will be this case Mertz, examining psy- the record. Dr. placed upon probation which includes chiatrist, specifically Mat- concluded that program regular psychiatric treatment. nor dangerous tern to himself was neither conviction, We affirm but reverse testify at Since Mattern did not others. and alter the sentence a sen- provide hearing, sentencing trial or months, tence of 18 the defendant to court’s observations of Mattern would own probation placed on period be for a to be slight value. court, determined the trial con- with the Finally, finding, the last regu- dition that the defendant submit to a society is cannot conform to the laws of program psychiatric lar treatment to be not altogether borne out the record. approved by the court. convicted of a seri- burglary, Mattern was However, prior ous offense. had no BOOCHEVER, J., participating. particular criminal convictions. this Until incident he had conducted his life a nor- ERWIN, (cid:127) (concurring). Justice respectable mal manner. He in this I concur result reached steady employment and awas hard worker. police con- case because I believe that the reputable people. His were associates legitimate “stop duct amounted to a present product offense was not itself proba- though frisk.” Even there was no typical proba- criminal intent. The to make an the time ble cause arrest at tion stated that not in officer Mattern “did place,1 properly initial took the truest sense intend to a crimi- commit stopped obviously individual suspicious nal offense.”18 jew- apartment, pointed as Appellant’s valuables her such counsel out set, stereo, elry, contributing a television de- court to the charge oí linquency pending articles items taken valueless of a minor awas slip, housecoat, apparel: wig, charge ; women’s and not a conviction however the empty brassiere, purse, tampax. modify and a did not the sentence. Constitu- Griggs State, (Alaska of the Alaska 19.Art. I § 494 P.2d 795 part: 1972) ; reads tion 492 P.2d Robinson 1971) ; State, be based (Alaska shall “Penal administration Peterson v. 107 upon principle 1971) ; and 682, (Alaska of reformation 1 683 n. P.2d 487 public.” protecting State, 686, for the need 484 690 Robinson v. P.2d 441, Chaney, 444 1971) ; State, P.2d (Alaska v. State 477 See v. n. 11 Waters 1970). 1971). (Alaska 199, (Alaska 202-203 483 P.2d Rabinowitz, opinion dissenting 1. See were items which taken The J., typical apartment not the of a were fruits infra. Although burglary. Carol Krebs 236 phone describing proc in identity investigate burglary calls

to determine and to departure burglar’s subsequent and the possible criminal Adams v. ess behavior. Williams, 143, unlighted in an van. The officers then ob 1921, 407 U.S. 92 S.Ct. 32 Ohio, driving lights as Terry served the van without (1972), L.Ed.2d 612 U. 392 1, 1868, phone described in the call. In a small (1968), S. 206 L.Ed.2d 88 S.Ct. 889 State, Community Ketchikan, (Alaska hold 1963), Goss v. P.2d like under our 90 220 235, Maze, ings supra, prudent (Alaska Maze in and P.2d Goss policeman legitimately could then detain 1967). investigate the driver further. Adams, Supreme In Court of van, proper it stopping was for of stop and frisk United States described accomplices ficers to inside for and to look language: doctrine in the following pat appellant weapons protect down for may police appropriate officer in they sought “[A] while themselves reasonable in appropriate circumstances and explanation suspect’s conduct. approach person purposes manner for temporary appel- When the detention of investigating possible criminal behav- lant burgla- resulted confirmation that a though probable ior there is even no ry had been committed that and the wom- U.S., cause make an arrest.” at undergarments en’s seen the van and the 22, Amend- 88 S.Ct. 1868. The Fourth tampax appellant’s pocket found in the policeman' ment does require who probable fruits the burglary, the offi- precise lacks the of information level probable cers had appellant cause to arrest necessary probable arrest to cause to Ohio, seize those items. Beck v. simply shrug his shoulders and allow a 89, 223, U.S. 85 S.Ct. 13 L.Ed.2d 142 crime to escape. occur or a criminal to peculiar Under these circum- the contrary, recognizes On that it Terry stances, agree I sup- the absence of a may good be the police essence of work pression hearing was harmless error be- to adopt an response. intermediate See appellant’s cause even under version of the id., at at A 88 S.Ct. 1881 [1868.] facts, police conduct proper. stop individual, brief suspicious of a order identity to determine his or to RABINOWITZ, (concurring in Justice quo momentarily maintain the status part, dissenting part). obtaining information, may while more light most reasonable the facts agree I cannot that the trial court’s error known to the officer at the time. refusing evidentiary hold an hearing States, Adams v. United in regard U.S. suppression Mattern’s motion 1923, 32 (1972) L.Ed.2d .612 harmless error. According to Mat- bar, In the case at received two documents, tern’s supportive Adams, justices dissenting pro- fenses, In “[tjhere three danger that, is too much strongly majority opin- object tested stop being instead of the protective ion was an unwarranted extension thereto, frisk an incident Terry York, Sibron New the reverse will be true.” Williams v. (1968), Adams, (2nd 88 S.Ct. 20 L.Ed.2d 917 436 F.2d 38-39 Cir. seriously protection 1970). bar, eroded the af- being In the case at the crime persons investigated forded burglary, possession fourth amendment. argued The Moreover, dissenters in contrast of contraband. the inform- Terry, tip where the officer’s reasonable sus- ant’s was corroborated when the of- picion personal was based on his own ob- ficers observed the white van with its suspects, lights extinguished. servation of the stop the officer and frisk tip Adams acted on the Terry, uncorroborated is therefore sustainable under unnecessary of an ques- unnamed informant the de- it is for me to reach the possessed weapon. whether, fendant law, narcotic and a tion as a matter of Alaska addition, persuaded In properly the dissenters were and frisk doctrine is extend- by Judge Friendly’s argument Adams-type if able to situations. Terry possessory were extended to of- assertions, an Mattern’s vehicle tion controverted cursory search of the a “made Thus, I hearing evidentiary required. shining flashlight by from the outside be re that the case should of am of the view than the mention therein.” Other beam pur superior to the court for nothing observed as manded whiskey, juga of hearing. holding evidentiary pose the offi- an by search vof a result of the outside that, con evidentiary hearing should be without This asserts cers. further officers, by judge other “opened superior ducted of the permission, one truck; judge trial in this Reas side) of said than the case. (right door front necessary the trial signment the aid of is because it with climbed and searched credibility is previously determined flashlight; thereupon judge found and affidavits, sues, solely Mat- subject against property which is from seized The suppress.” tern.2 matter of motion

prosecution, opposition to the motion in its court’s that “even I find the conclusion Ketchi- suppress, filed the affidavit of description the search under Mattern’s fact Sergeant Roy The kan Police Edwardson. record. was valid” is warranted this affidavit portion relevant of offered for the of the rationales One “ reads, through the . . . I observed is that court’s harmless error conclusion window, garments and what side women’s into the van was entrance officers’ appeared wig to be a in the defendant’s that his life was lawful because he feared vehicle.1 hiding endangered by accomplices possibly that, Sergeant requires reading A 37(c)

Criminal Rule within van.3 (5) to disclose judge “The . . . receive evi Edwardson’s affidavit fails shall any of the of- any necessary to the the conclusion that dence issue of fact basis for phys- to fear grounds decision Mattern’s ficers had reasonable of the motion.” Since possibly accomplices require danger motion ical from the asserted facts would which Significantly, suppression inside the van.4 prosecution’s opposi and the hidden Sergeant there’s I believe Edwardson’s affidavit reads fendant’s vehicle. testimony. part in this as follows: credence Sergeant suppress Ket- is denied. 1. That I am a on the The motion presented Department. its case-in- chikan Police the state had chief, renewed 2. That I arrived at the scene of the trial counsel Mattern’s alleged burglary approximately suppress. not view this at 4:15 I do motion to any objections question. Mat- a. m. on the date renewal as a waiver con- failure to 3. That I instructed the officers un- the trial court’s tern had to hearing. my charge evidentiary At no time der to advise defendant an duct immediately opportunity rights his constitutional afforded was Mattern apprehended. testifying the events version of after he was as to his observed, through place 4. That I the side after his took window, garments stopped. and what women’s appeared wig in to be a the defendant’s reasoning appears somewhat 3. The court’s vehicle. escapes can me how one It inconsistent. being That I was aware the vehicle failing say erred the trial court prop- operated the defendant was evidentiary hearing, to hold erty District. of the Ketchikan School mov- that Mattern’s breath conclude same I advised the officers under 6. That grant- ing for the basis show no documents my subject charge into to take the stating hearing, suppression after aof custody. subject arrest was under hearing evidentiary be held must have been at that time and would not that, alleges if facts movant when the to leave. allowed granting require proved, the motion. denying sup- judge, 2. The trial Mattern’s yields testimony trial pression at motion, part: of the 4. Review stated in simply no say There Well, result. I a similar let me believe a rea- sergeant the officers indication under oath statement through fear violence basis to sonable he said that I observed where accomplice any Mat- garments hidden hands the side window women’s appeared wig in the de- tern. to be a what Mattern disclosed

pat down The ma- Tampax pads. two

armed with entry into the van

jority asserts also accomplices was protect against hidden the van

required “the structure because that, appellant, according to

was such its clear view did not have out is not borne This

interior.” statement reading the relevant My the record. po- shows that

portions of the record threat from the amply protected

lice were looking potential accomplices, particular of this

through the side windows they vantage points, From these

vehicle. views of floorboard

had unobstructed in- the rear of the No evidence vehicle. officers’

dicates a reasonable basis physical danger. Nor does the evi-

fear of could not have seen

dence show accomplice hidden in the interior by looking through its side win- Therefore, agree cannot

dows. I refusing grant ruling

superior court’s evidentiary hearing was harm- disposi- concur in the court’s

less error.5 I appeal aspect

tion of the sentence of this

case. TAGGARD, Payne Appellant,

Andrew Appellee. Alaska,

STATE of

No.

Supreme of Alaska. Court

Aug. analyz- arrest, is of than an assistance Erwin’s 5. I do not believe that Justice presented issue and seizure the search characterization of the conduct frisk, question bar. in the case at rather here as a

Case Details

Case Name: Mattern v. State

Court Name: Alaska Supreme Court

Date Published: Aug 4, 1972

Citation: 500 P.2d 228

Docket Number: 1409

Court Abbreviation: Alaska