State v. Sears

Alaska, Petitioner, STATE Respondent.

Timothy SEARS,

No. 2446. of Alaska.

Aug. 20, 1976. Hawley, Dist. Jr., Asst.

William H. Balfe, Atty., An- Atty., Dist. Joseph D. Gen., Gross, Atty. Avrum chorage, M. Ju- neau, petitioner.. for Weaver, Weidner, Mark A. Phillip D. Soil, Defenders, D. Herbert Public Asst. respon- Anchorage, Defender, Public dent. BOOCHEVER, Justice, Chief

Before RABINOWITZ, and ER- CONNOR WIN, Justices.

OPINION RABINOWITZ, Justice. questions petition for review This may be illegally obtained evidence whether proceeding. used purposes dispute for The state does not this review that the sei- illegal search and the fruit zure. placed interim,

Respondent Timothy was Sears the was Sears indicted for April possession after hav- probation marijuana on purpose on for the charge ing pleaded guilty to the of accesso- sale and distribution2 on the basis of the burglary.1 ry the fact to the crime of same ground after facts that constituted the for prescribed general petition the usual the probation.3 The court to revoke Sears probаtion, including suppress the con- moved to the conditions in question, evidence comply marijuana, all munici- arguing dition that Sears that product it was the pal, illegal state and federal laws ordinances. Judge search. Kalamarides to run until ruled in suppressed Probation was October Sears’ favor and the the sentencing was deferred for on 1975. That case January subsequently later was period of time. Probation was dismissed. same days. for an additional extended At the hearing 4, 1974, January 1975,Judge On November Sears’ Burke stated that petitioned Judge the to revoke he believed officer court Kalamarides’ decision on impose legality on probation and sentence of the Sears’ October 6th search was one ground binding upon Therefore, that Sears had violated him. he refused probatiоn, specifically his to question reconsider the whether the conditions provided that he was legally evidence was He condition seized. went on municipal, fed- state and to state comply to with all that under the terms of Criminal accompa- affidavit that eral In the of the Alaska laws. Rules of Crimi- petition, alleged Procedure, the officer that nal nied the he believed the state was 16, 1974, precluded com- making any on or about Sears from October use of the evi- possession mari- offense of hearing. mitted the dence at the revocation After juana of sale and distribu- for submission of additional authority on the allegations denied the ap- tion. Sears properly issue of whether Rule 26(g) petition situation, was petition, hearing plies Burke, and a on the Judge to the instant 11, 1974, Judge before set December petition ordered the January on motion, court, on its con- ruling own this Burke. revoke dismissed.4 From hearing January until 1975. dismissing tinued the state seeks review. The order 12.15.020. radio and found AS The officer checked time. suspended. At had been that license Sears’ 2. AS 17.12.010. up car, point Kaas went that Officer substantially follows. light inside, Those facts are and saw brown flashed his evening unopened Officer bag top On the of October cans of beer of several on Department Anchorage Police Kaas of He the driver’s seat.' the floor front of on patrol people door, inspected was on when he saw several opened the contents alley alight respondent’s appeared in an be- bag, car mari- be what and found carrying people finding marijuana, hind a juana. bar. One these was the of- After Kaas, According can. Officer beer the car and found ficer searched the rest of speed marijuana pipes. car was limit, slower than the pipes, three believed to suspicious charging him that Sears, which made him with arrested Kaas then possession might marijuana driver be under the of in- influence intent to sell toxicating liquor. charges He the car also noted filed with No were and distribute. respect missing light. light a tail He directed the violation. The rec- to the tail pull over, point driver of the car to at which reflect and the state makes no ord does not got proceeded respondent to- Sears out Officer Kaas knew of Sears’ claim that bationary car, patrol meeting ward Officer Kaas status at time. halfway. Apparently Sears walked without alleged marijuana stumbling staggering, breath did offense was the his 4.Since Although seeking ground not smell of alcohol. the officer’s on which the state was sole preliminary investigation probation, Judge that Sears revoke Burke’s decision showed deprived posses- did not have a driver’s license his exclude the evidence the state of registered proof required petition to sustain the sion and that the car was not name, Sears’ no arrest was made at revoke. petition stayed pending criminal proceeding to revoke from which it is to be excluded, prohibited. review. or the which are uses asserts, however, despite whether the exclusion The state ary apply seemingly unequivocal rule should revoca language of tion has been 26(g), never decided context which the rule this court.5 It is is the state’s contention that found indicates rule is that the intended preclude 26(g) apply only proceedings, Criminal Rule does not the to to trial and not in illegally probation admission of a to proceedings. seized evidence revocation Rule probation proceeding. 23-31) revocation Criminal 26 falls within (Rules Part VI of Procedure, 26(g) Rule states: the Rules of Criminal which is argues entitled Petitioner “Trial”. illegally Evidence obtained shall not be section titles of the criminal rules denomi- any including purpose used for the im- purposes nate the various of the different peachment of a witness. rules, and that therefore Moreover, argues state as matter a Rule 26 is limited trial to situations. In policy, illegally seized addition, petitioner points Rule out that 26 be admitted in In revocation begins in (a), itself subseсtion with a refer- considering question find this we ourselves its at trial.7 applicability ence to unique position. have re- Counsel Rules 1 and which concern Criminal jurisdiction vealed to has ex- us no scope, general and construction pressed rule in terms as rules, provide part criminal as of the broad as Alaska’s Rule Proce- Criminal follows: goes beyond 26(g).6 26(g) dure Rule what have hitherto been considered minimum Scope. govern Rule These rules 1. requirements constitutional for an exclu- superi- practice procedure and in the sionary The is far it rule. how proceedings or court all criminal reaches. turn now an examination We language, history of context and Purpose Rule and Construction. 2. 26(g). Rule provide are intended to These rules Respondent argues language of every just criminal dеtermination of 26(g) explicit prohibition Rule is [emphasis . proceeding. . added] illegally the use of seized within evidence: together 26(g), with Rule apparent- When read the terms of the rule itself there support respondent’s 2 tend to Rules and ly no limitation on the kind of is gen- excluded, argument 26(g) Rule is rule type.of seized evidence to be presented (a) In trials the testi- all us in Himni In General. Question 5. The orally (Alaska 1974), mony taken shall be cutt witnesses P.2d 1292 provided by pro court, open unless otherwise further case was remanded for but admissibility by question having ceedings The these rules. been statute or without by governed Rule shall be Civil of evidence resolved. rules, by or in' the absence of and these pri Exclusionary developed doctrine judicial has principles rule, by common law See, g., marily through e. decision. interprеted by they may courts States, Weeks v. United light of reason and in the the state Olmstead L.Ed. 652 S.Ct. rule, experience. the absence according presented evidence shall be (Holmes, J„ L.Ed. by prescribed com- method most convenient opinion). separate was formulated It principle principles, and the mon law extended United States reception shall of the evidence favors Ohio, Mapp the states privileges govern. competency and L.Ed.2d 1081 governed Rule Civil witnesses shall be rules, or in the absence of these Criminal Procedure Alaska Rule of [emphasis principles, part: rule, common law vides added] applied process. point party po- which is applicability,8 eral to be At the where proceedings except tentially subject proceeding whеre to such a he all criminal provide pa- already adjudicated If has rules or statutes otherwise. been criminal hearings already passed role revocation- and a court has sentence. or proceedings” meaning pa- within “criminal hold that We therefore rules, proceedings a conclusion that Criminal role are not crimi- applies meaning them man- 26(g) would be our nal within the dated. Rules of Criminal-Procedure. However, important recog policy history behind nize that a add to our conclusion distinguishable normal apply proba- meant to was not

adjudications guilt at In Martin trial. hearings. parole Rule tion or revocation State, 1389, v. 517 P.2d (Alaska by 26(g) presently as exists was drafted 1974),we said: in Rules Revision Commission Criminal However, probation hearing a revocation by in 1973. adopted and this court prosecution lоoking is not a criminal to- committee, July chaired On adjudication guilt ward an of inno- Gross, proposed by Avrum submitted . cence. changes report addressed to then rule in a Boney.10 The committee’s Chief I, interpret section do not Article Justice We rules, and ac- proposed notes on the Alaska Constitution to extend of transmittal, contain companying letter right bail to revocation inquiry into comments material to our proceedings. the Alaska Constitu- While 26(g). The and Rule policy intent behind in insure to tion and statutes the accused Rule proposed committee’s of a Miranda violation. proposed by Rabinowitz at test as it clear that Rule page 622 in Dimmick. The comments make designed apply to the Harris 26(g) It should be Proposed that emphasized in- situations and can be Dimmick 26(g) Rule is change. a substantial parole apply probation or ferred not to majority policy pro- consider the of the First, drafters revocation posal can be decided the abstract best professed contemplated such never to have pressure since the publicity of an ac- In- proceedings in the rule. promulgating tual defendant might whose conviction . actual deed, reference to the “. be reversed are absent. might be re- conviction defendant whose petitioner Both respondent refer to the drafters contem- indicates that versed” the committee’s comments to their subject could plated proceedings where respective positions concerning the intent is not “convicted” Yet one be convicted. policy underlying the formulatiоn of proceed- probation revocation or 26(g). Petitioner asserts that Rule deterrence Second, ing. the concern 26(g) was primarily drafted to counter the expressed in the com- police misconduct promulgated York, rules in Harris v. New not, in- as we demonstrate mittee notes is L.Ed.2d 1 case. We the instant applicable to fra, and Dimmick v. un- the rationales proceed examine now therefore, 1970); rule, exclusionary twin derlying the scope be limited in questions (cid:127) that deterrence demonstrating purposes of addressed in those cases. Petitioner bases carry not police does misconduct its assertion on the circumstance these this it would were force as same specific were the questions about which the adjudication looking ceeding towards expressed committee concern in its com- rules that, Alaska’s criminal guilt and mentary to Rule 26(g). Petitioner also re- aside, does constitution Alaska’s cites to following the note the draft ver- exclusionary rules application of quire rule, sion of the which states: instant situation. Subsection is (g) regard intended to offset In ex of the clusionary rule, erosion of permit- precedent the Miranda Rule federal and our York, ted in Harris v. New own decisions establish that the rule has is twin rationales. of these rationales the police One are not even aware a sus- pect parolee, deterrence unconstitutional is a supplemental methods deter- is, course, other rationale is law enforcement.11 The rent factor completely ab- integrity imperative sent. requires that the courts nоt be made “party recently, More the Ninth answered Circuit to lawless invasions constitutional question in a similar manner. Unit- permitting of citizens unhindered Winsett, (9th ed States v. 518 F.2d governmental use fruits of invasions.” of the such 1975),Judge Cir. Choy wrote: 12 Application exclusionary rule to analysis goal An of the deterrence probation revocation exclusionary Alas- rule and relation to this case would a deterrent ef achieve system probation appropriate ka’s is speculative marginal fect at best. here. This court answer the must police miscon Whatever deterrence of whether extension of the illegal duct results from the exclusion of hearings would ly trials, seized evidence from criminal goal (of further the of deterrence unlawful unrealistic to assume enforcement) sufficiently methods of law pro of the rule to outweigh the need for use of the evi- ceedings significantly would further promote dence thus secured to the enforce- Hill, goal. See 447 F. United States probation system. a rational The- ment'of 2d 1971); oretically, any time seized evi- Fitzpatrick, ex Sperling States rel. impact excluded, the deterrent dence F.2d (2d Such presently rule as adminis- only police extension would deter search However, invocation tered is incremented. consciously es and arrests directed to exclusionary rule in revo- probationers, ward omitted] [footnote only mini- yield cation would Both the California mal deterrent effect which additional further concluded and the Ninth Circuit probation outweighed by of our the needs any marginal which deterrent effects system. the exclu- would flow from Whеn faced with this question, the Su by the sionary outweighed far rule were preme California, Court of in In re Marti consequences potentially disastrous nez, 641, 1 Cal.Rptr. 382, Cal.3d 83 463 P. imposition would of the exclu- follow 734, 740, 2d denied, 851, cert. 400 91 U.S. probation pro- sionary parole or rule 71, S.Ct. 27 L.Ed.2d (1970), 88 concluded ceedings. As the Ninth Cir- articulated cuit, purpose probation is primary promote

. rehabilitation of the incremental deterrent effect him inte by allowing that will realistically the criminal achieved indi shielding grate society as a constructive Authority the Adult from into ille- gally procured vidual, ‍​‌‌​​​​‌‌‌‌‌​‌​‌​‌‌​‌‌​‌​​‌‌‌‌​​‌‌​​‌​‌​​‌​‌‌​‌​‍for the being confined slight; evidence is without Mor bungling police imposed. likely term of the sentence Cf. officer is not to be 477, 471, Brewer, 92 halted thought rissey that his v. unlawful 2593, prevent conduct 33 L.Ed.2d 484 the termination S.Ct. will probation parole because сannot . Because violation authority con- proba may sider the indicate unlawfully evidence that conditions he re- procures. incapable of When, case, ready is not or is as in the instant tioner 1, 13, Mapp Terry Ohio, Ohio, 643, 1684, S.Ct. 88 v. v. 367 81 U.S. S.Ct. ; ; 901 6 L.Ed.2d L.Ed.2d v. 20 1081 Elkins State, 206, 217, 542 P.2d 170 A. v. J. U.S. M. S.Ct. (1960) ; L.Ed.2d M. A. J. (Alaska 1975). 542 P.2d 170 society protected furthered and by integration society, habilitation into to be conduct, important it is ra- extremely that all reliable antisocial then crucial to significant shedding light probation- decision-making tional that this on the very during proba- er’s conduct not be denied the court be available information imposed probation. initially Here proceedings.13 tion revocation [footnote system clearly original] probation the needs of the [emphasis omitted] outweigh possible deterrence of unlaw- 518F.2d at 54-55. ful methods of law enforcement. pled guilty In the case at bar had Sears probation that a or our conclusion Given accessory to the crime of after the fact to is not hearing a criminal burglary. As was mentioned previously, reasoning of the we find the proceeding, probation, sentencing a condition of and the Supreme of California required mu- court abide all Sears Appeals persuasive Ninth Circuit Court of nicipal, state, and federal and ordi- laws led the conclusion and are petition Subsequently, nances. for revo- signifi- probation system needs Alaska’s cation of Sears’ was filed on the would outweigh any benefits which cantly ground that had the of- Sears committed mandating that the exclu- our flow from possession marijuana fense of for the applicable to rev- sionary rule is of sаle and distribution viola- proceedings.14 ocation express probation. tion of terms of his that considera- Further, think Clearly, pur- we do not it would be destructive of the integrity imperative pose to hold that sentenc- tions of First, recog- we contrary result. dictate a ing court forbidden to consider relevant marijuana is illegally seized nize that the possession of concerning facts Sears’ any prosecution Sears suppressible in marijuana in whether determining Sears possession possession proba- for the crimes should be allowed to continue on Second, im- tionary If rehabilitation status. Sears’ intent to sell.15 with the Martinez, gain problematical In re Cal. 13. In de- Cal.3d siderations of denied, Rptr. 382, cert. P.2d terrence. 851, 91 27 L.Ed.2d 88 Farmer, F. also United States v. 14. See Court of California denied, (6th 1975), cert. 2d 160 Cir. adoрted parallel position: Brown, 3305; United States U.S.L.W. hand, On the social conse- other 1973) ; (5th United States F.2d 94 quences imposing Hill, F.2d 817 Authority] upon dis- [Adult can be Fitzpatrick, Sperling v. States ex rel. United Conceivably, improperly if the astrous. People (2d ; 426 F.2d 1161 for evidence were the sole basis Bowery, Ill.App.3d 738, 312 682 20 N.E.2d revocation, authority might find the (1974), aff’d, N.E.2d 62 Ill.2d 340 pa- in itself unable to act the ease of Shea, (1975) ; Crim.L.Rep. Stone 18 2268 police improper- murderer whom the roled ; Com 113 N.H. 304 A.2d armory ly had cached a minor discovered Kates, A.2d monwealth v. Pa. paroled use or narcotics future Turner, (1973) ; 2d Reeves v. 28 Utah peddler quantity had collected a who Kuhn, State v. P.2d 1212 Although rec- for future sale. we heroin ognize, Wash.App. course, evidence would such law, adopted precisely we be admissible court of course not This is duty agency response superior an whose delicate believe that court in Sears’ motion conjunction suppress can in with decide a convicted offender the evidence is to when possession safely prosecution return and remain be allowed to his for the crime of society posture marijuana than sale and distribu- in is in a different for the original guilt. which decides his the court tion. authority previously, is not contested to relevant facts indicated blind the As To marijuana illegally, special risk was seized is to incur a here that in this context required pass public which, danger on at least as therefore we not outweighs competing date, con- of this issue. initially ary integrity rule in the judicial perative of For, circumstance, charge ceeding. a pled guilty to the such when Sears met exclusiоnary bar of the a accessory the fact to the crime of rule would act as after significant intimation in this deterrent searches and ar- burglary. There is no part consciously proba- rests toward guilty plea on directed record that the Sears’ regard a law- In this we are in accord any engendered tioners. manner opinion the Ninth less invasion of constitutional Circuit’s Winsett, the fruits of such States n. government’s use of F.2d Third, 1975), context of where the court stated: special invasion. it is our proceeding, a violation police . when the at the moment belief, balance, this that the facts of on suspect proba- search know that impera- threat to the present case no such tioner, in- they may significant have outweigh the integrity as to judicial tive of carry illegal centive to search out sentencing to know court clear need of though knowing that evidence even his conducting probationer whether the any would be inadmissible criminal warrants continua- life in a manner which proceeding. police nothing have status, or present probationary his tion of suppress in the If the motion to risk: conduct because of antisocial whether denied, proceedings criminal were de- being fur- is not goal of rehabilitation a new fendant would stand convicted of thus, change in the either a thered and crime; granted, and if the were motion incarceration, is probation, or conditions of find the defendant would still himself protect society. necessary in order to proba- behind bars due to revocation of Thus, circumstances, in such ex- tion. We can conceive of circumstances tension of rule to would lead to the may be exclusionary rule to proba revocation of necessary to effectuate Fourth Amend- tion g.,E. Rochin v. Califor safeguards. ment nia, 96 L.Ed 183 (1952). short, police In misconduct reasons, foregoing For the we reverse conscience, shocks the or is of a na’ superior court’s determination ture that calls judiciary, for the as a mat suppressed ter of integrity, to disassociate it proba- and remand the matter for further self therefrom, benefits derivable conformity tion revocation would lead us to invoke the opinion.16 with this See, rule. g., e. People v. Dowery, 20 Ill. App.3d 738, 312 N.E.2d (1974), aff’d, ERWIN, J., concurs. Ill.2d 340 N.E.2d 18 Crim.L.

Rep. CONNOR, J., dissents.

One additional comment is neces BURKE, J., participating. sary here. the event the lawless arrest and search or seizure is carried out en ERWIN, (cоncurring). personnel forcement knowledge or reason to believe suspect agree that the Alaska Constitu- proba was a While I tioner, we would then exclu- apply require application tion does exclusion- rights any parolees’ 16. Since we are not confronted fourth amendment has been ‍​‌‌​​​​‌‌‌‌‌​‌​‌​‌‌​‌‌​‌​​‌‌‌‌​​‌‌​​‌​‌​​‌​‌‌​‌​‍is- regarding probationer’s recently sue a examined the Ninth waiver of fourth Circuit rights rights Fitzharris, (9th I, amendment v. under Latta 521 F.2d 246 Article Constitution, section of the Alaska and United States v. Consuelo-Gon we do appropriate 1975). zalez, not consider this an See also occasion for a 521 F.2d 259 problem. State, detailed discussion of this Tamez v. Crim.L. We note 534 S.W.2d though, probationers’ Rep. 1976). (Tex.Cr.App., that the extent of bar, Harris, sionary sig- prohibit in the at I have rules case was not intended to majority illegal prоba- nificant reservations with the collateral use of evidence for scope opinion’s language concerning purposes. tion revocation I find do not 26(g). light Criminal Rule of this deci- merit in the distinction that the state would sion, strongly draw, urge I the Criminal history either on the basis of grounds Rules Revision Committee re-examine Rule the rule or on of policy. 26(g) and determine whether it was fact Examination of the rules committee’s promulgated to cover situations than other comments reveals that the committee’s con- proceedings.

criminal specific cern was not much so with' the cir- present cumstances Harris and Dim- CONNOR, (dissenting). mick, pervasive problem as with the more respectfully

I must dissent. rights. the erosion of constitutional The committee’s notes not indicate that do 26(g) I do not believe that Rule its mеmbers illegally Alaska found the use ob- Rules of Criminal was Procedure tained impeachment purposes evidence for designed apply only situations addressed, presented only problem except to be the York, in Harris v. New 401 U.S. insofar as it rights. affected constitutional L.Ed.2d The committee’s attention was focused on Dimmick protections by the erosion of constitutional persuaded I am not decisions, the Harris and and on the rule should be Dimmick interpreted barring as general exclusionary notions policy exception one collateral use to the exclu- rule, e., (Connor, enunciated in the dissent sionary impeachment, J.) i. and not State, supra, Dimmick v. at e., another such exception, i. rev- proceedings. ocation exclusionary remedy primary is the effectuating meаns consti- certain basic works, minimum, at 26(g) bar rights. tutional scope When the illegally the use of obtained evidence for remedy curtailed, protection of those of directly guilt. proving Fur- rights is likewise To establish limited. thermore, as the Alaskan expression of the exception collateral use revo- constitutionally exclusionary mandated cation means that the constitu- rule,1 it necessarily operates remedy in- protection tional for which violation of federal Fourth Amendment adoption of drafting tended rights as well as the Fifth and Sixth 26(g) again subject to erosion. Amendment rights addressed in Miranda v. Arizona, 16 L. Moreover, pol- general I believe Ed.2d illegally icy underlying the "exclusion of ob-

The commentary pertaining 26(g) tained evidence merits clearly indicates the committee’s intent to

guarantee, by means of the of the exclu- new criminal function rule, an exclusionary remedy sionary rule is two-fold: the deter- which would prohibit eliminating collateral as well as direct use rence of official lawlessness such prosecutorial benefits of lawless evidence—at least regard to its impeachment behavior, use for furtherance purposes. The urges imperative judicial integrity, state us which de- to distin- guish between “party one illegal collateral use of not made mands the courts evidence and another. argues The state invasions of the constitutional to lawless although designed unhindered by permitting to extin- rights of citizens guish the collateral in- exception use of such governmental use of the fruits 12-13, Ohio, rule that Terry was established vasions.” Mapp Ohio, 1875, (1968).2 1868, L.Ed.2d 889 There nothing S.Ct. peculiar inherent in or development

A recurring theme system to the justifies which cir emphasis exclusionary has been the doctrine cumvention “imperative aspects placed on these two of the rule.3 integrity”, Elkins v. United As the trial court noted in its decision Some courts have found that below, because of small number of in order for the rehabilitative function of trial, actually criminal cases reach fostered, to be judge at the the deterrent effect of the hearing revocation should know all of the severely illegally if rule is limited him, circumstances of the case before only inadmissible at trial pertinent whether or not ‍​‌‌​​​​‌‌‌‌‌​‌​‌​‌‌​‌‌​‌​​‌‌‌‌​​‌‌​​‌​‌​​‌​‌‌​‌​‍the information Furthermore, proceedings.4 the use of was by illegal uncovered These means.5 pro- such evidence at decisions, however, explain failed to have cеedings substantial provides incentive satisfactorily goals how the rehabilitative unconstitutional searches and seizures. probation would, fact, furthered be persuaded I am Thus that the deterrence by the admission of obtained evi practices be police unconstitutional will Moreover, reasoning dence. such flies adoption furthered the exclusion- Gault, the face of decisions such as In re ary proceed- in probation ings. certainly 18 L.Ed.2d 527 persuaded by I am (1967), emphasize that rehabilitative what has been before presented the case therapeutic goals longer can no us that the deterrent incremental effect used as an excuse for a slight procedural lack applying the rule is so safeguards deprivation and the of constitutional outweighed it is thе needs of our righ probationary system. ts.6 (a parole revocation) ; J.) (Connor, 2. The dissent in Dimmick Heyd, supra, ex States rel. Lombardino v. 318 F. contains an extensive discussion Supp. 648, per origins development (E.D.La.1970), of the sionary of the exclu- aff'd curiam, 1971). repeat rule. There is need 438 F.2d 1027 no point However, discussion one here. balancing be clarified. The test discussed at Gault, highly 6.In was imply 473 P.2d at should not be read to critical of the constitutional and theoretical that a defendant’s own Fourth Amendment juvenile justice administration, par- bases of rights may any way be eroded. In Dim- ticularly respect traditional re- balancing only applied mick dissent parens patriae. It liance on the doctrine of standing of whether a defendant has phrase proved noted: “The Latin to be of to raise the Miranda of another. great help sought to those to rationalize who juveniles the exclusion of from the constitu- Undoubtedly, greater emphasis 3. far has been scheme; meaning murky tional but placed on the deterrence function of the ex- and its historic creditials are of dubious rele- clusionary rule. But see dissent of Bren- vance.” 387 at nan, at 1437. S.Ct. Calandra, inJ. United States v. join- 38 L.Ed.2d 561 One commentator has stated: by Douglas JJ., ed Marshall, in which pointed perfectly predeces- it is “Gault clear out made the historical sors of the rule in court is relucant to be hemmed such its current form were based grounds ‘civil,’ ‘criminal,’ on other than artificial ‘quasi-administrative.’ labels as deterrence. primary If Gault’s Respondent points that, according out to a procedural concern niceties study recent Council, conducted the Alaska Judicial entry deprivation process, vel non into a felony disposed eases 94% the court also demonstrated that a desire in Alaska pro- 1973 were resolved non-trial help longer rehabilative ideal—no will —the ceedings. Cutler, Sentencing See B. in Alas- serve as the incantation before which Description ka : A of the Process and Sum- safeguards Cohen, cedural must succumb.” mary of Statistical Data for “Sentencing, Probation, and the Rehabilita- Council, Judicial March Mempa tive Ideal: the View from e, See, g., Sperling United States ex Rhay," rel. 47 Texas L.Rev. Fitzpatrick, (2nd 426 F.2d 1163-64 positive greater significance Of even im- the organic law, utterances our the pact integrity government of before us the case on the could not be trusted to abstain judicial of Historically frоm process. obliterating very rights and free- merely did not arise doms for which the American Revolution from the need to deter official had fought. misconduct. been designed keep Rather was intact cer- perceived It was by the framers that the tain sys- values basic to our constitutional role of the judiciary was pres- vital to the government. of tem ervation of the guarantees fundamental of the Bill Rights. of The Fathers Founding did believe In an address to Con- gress, any government one branch of could Madison stated: James upon be relied to honor or make effective “[Independent justice tribunals of will guarantees fundamental contained consider peculiar themselves in a man- Rights. Constitution and the Bill of ner guardians rights; those hoped they interplay What be- they impenetrable will be an bulwark tween government branches of several against every assumption power in the keep protections would alive the Legislative Executive; they will be they incorporated had into basic docu- naturally every led resist encroach- ment permanently which was to set the or- upon rights ment expressly stipulated for ganic pattern government. of American It in the Constitution by the declaration of guarantees must be remembered that the rights.” 1 Cong. Annals Rights Bill regarded were im- so By very judiciary nature the has nei- portant they were considered as a nec- power machinery ther the nor the to direct essary precondition acceptance operations everyday govérnment. It the Constitution itself The citizens of only upon can act justiciable brought issues unwilling the several states to dеle- wfcre before it the form of actual cases and power gate a strong government central Moreover, protection controversies. positive guarantees without of individual fundamental constitutional is often which, and liberty thought, freedom it was accomplished by i.e., negation, by a refusal against would stand as a barrier the tend- part on the validate courts to uncon- ency any op- strong government toward stitutional behavior the other branches pressive mastery itsof citizens. government.7 Hence The Rights emerge Bill of did not as an rule as to obtained evidence.8 governmen- abstract statement of desirable tal values in an ideal world. What it did Many if jurists have observed that represent positive was a expression of re- permit courts unlawful action other against straint governmental the abuse of government they par- branches of become power. Bill Rights reflected a sus- wrong. they permit ties to the When picion part on the states and several unconstitutionally use of obtained that, citizenry their unless restrained they the con- render States, As Mr. Justice Brandéis noted in his dis Harris v. United States, (Frankfurter, J., sent Olmstead v. United 91 L.Ed. 1399 S.Ct. (1947) ; dissenting) 72 L.Ed. 944 United v. Rabino State unconstitutionally witz, the exclusion of 94 L.Ed. necessary respect dissenting) (1950) ; (Frankfurter, J., evidence is to maintain preserve judicial process Lasson, History Development law and to one, contamination. “The rule is not of ac Amendment States Fourth United tion, but of inaction.” 277 U.S. at opin See also own Constitution our S.Ct. at 575. State, in Fresneda v. P.2d 139- ion (Alaska my 1969), background in Dim dissent 8. For the historic of the Fourth Boyd Amendment see mick v. 624-26 L.Ed. 746 and, nullity guarantee engage governmental stitutional in ef- hypocrisy of the fect, approval of lawless con- most indicate their serious kind. For dealing we are not merely ordinary legalities duct. but with fundamental constitutional values of first As Brandeis in his Mr. observed Justice magnitude. Freedom from unlawful classic dissent Olmstead v. goes very searches and seizures core 564, 575, 48 S.Ct. of our heritage, constitutional encompass- 72 944 : L.Ed. ing right as it privacy does our and to laws, government “In a of of existence protection arbitrary governmental in- government imperilled will be if it trusion into our lives. scrupulously. fails the law to observe meaningful Unless some consequence fol- omni- government potent, is the Our lows from the violation constitutional ill, present good For or for it teacher. rights, merely those become a form example. people tеaches the its whole of words without substantive content. To contagious. government If the Crime is the extent that condone official lawless- we contempt lawbreaker, it breeds becomes a parties ness we become subversion law; every man become for it invites rights, constitutional and we fail to himself; anarchy.” law unto invites constitution, and defend the which we are In that Holmes said: same case Mr. Justice sworn to do.9 must consider objects the two “[W]e When rule is viewed of desire both of which we cannot have light imperative judicial integrity, up make our minds which to choose. it is no moment that the case before us It is desirable that criminals should be proceeding. detected, and to that end that all availa- nothing nature does ble evidence should be used. It also is remove the constitutional taint at- desirable that government should not proffered taches to the evidence. itself foster pay crimes, for other principle party to refusal to be a when they are the means by which the wrongdoing remains the same.10 evidence is to be obtained. . . We observed, As Mr. dissent- Grimes choose, have to my part I think Shea, 174, ing in 304 Stone v. N.H. A. it a less evil that some criminals should 647, 2d 649-50 use escape government than that should proceedings of evidence ob- play ignoble part. tained in Fourth Amend- violation of the If the existing code does not dependent upon society ment results in a permit attorneys district to have a hand transgressing very charter own in such dirty business permit it does not in the existence.11 Recent historical events judge iniquities allow such taught us United States have succeed.” importanсe adhering to basic constitu- commands,

Unless applied fraught rule is tional and how against all peril expediency forms of official lawlessness are the claims that we opinions Brennan, J., (dissent See, g., Plymouth 9. See the e. One Sedan v. s ing) 1246, Calandra, Pennsylvania, in United v. State 338, Associates, (1965) ; Knoll Inc. L.Ed.2d (1974) ; People Cohan, Commission, 44 Cal.2d v. Federal Trade 397 F.2d 530 (majority opinion Tray ; Leogrande Liquor P.2d 905 v. State nor, J.), dissenting opinion Peters, Authority, and the N.Y.S.2d A.D.2d J., Martinez, grounds, Re reversed on other 19 N.Y.2d Cal.3d 83 Cal. Rptr. 382, 463 P.2d ‍​‌‌​​​​‌‌‌‌‌​‌​‌​‌‌​‌‌​‌​​‌‌‌‌​​‌‌​​‌​‌​​‌​‌‌​‌​‍741-45 N.E.2d 302 N.Y.S.2d 10. It is notable that some courts exclude il- 11. Accord: Michaud legally (Okl.1973). obtained evidence even in adminis- proceedings, trative not criminal in nature. necessity should override

governmental personal liberty guarantees

fundamental society. a free basic to State, supra, urged I in Dimmick

As

(dissenting), close we must the courthouse in violation

door evidence obtained rights. Our

fundamental constitutional gov- to do the role of

failure so validates lawbreaker, betrays it obli- our

ernment defend the constitu-

gation and Alaska, and and

tions of States im- most renders one of the ineffective necessary main-

portant guarantees society.

tenance of a free ruling Judge

I would affirm

Burke, illеgally ob- exclude the would the trial of this case.

tained evidence at HAGER, Appellant,

Jack O. HAGER,

Marguerite Appellee. A.

No. 2361. Alaska.

Aug. 20, 1976. & Schlereth, Peter Walton

Ernest appellant. Assoc., Anchorage, for Aaron- Ashley Dickerson M. John Dickerson, Inc., Anchor- son, Ashley of M. appellee. age, for BOOCHEVER, Justice, Chief Before CONNOR, RABINOWITZ, ERWIN BURKE, Justices. OPINION ERWIN, Justice. presented appeal

In this we are proper- the trial court of whether statute ly applied AS 09.55.210(6), be- property dealing with the division action, in deter- parties tween divorce notes bail, prosecutions right all a criminal are 26(g) as follows: Martin was not the accused in a criminal prosecution requested at the time he bail proposed to (g) is Rule 26—Subsection from the trial court.9 omit- [footnotes protections make clear ted] Har- Miranda are not eroded. See Rule parole proceedings York, [, Probation or 222 91 SCt. ris v. New 401 U.S. part then 643, are not a of the normal criminal . . . 28 L.Ed.2d 1] superior holding found lan- The court the broad to our in Martin adds Our highly persuasive guage conclusion, infra, in deter- of Rule 26(g) applicable mining was that Rule “criminal revocation proceedings” meaning of our Rules within the there Our decision Procedure. Criminal Stevens, 9. See also v. McGinnis 543 P.2d Alaska made with awareness 1221, (Alaska 1975), concerning where provides 41(a), Criminal Procedure prisoners’ prison rights disciplinary hear- part: ings McDonnell, v. we relied on Wolff Admission to Bail. The defendant 2963, L.Ed.2d 935 proceeding ad- entitled to be criminal is (1974), and stated: mitted bail .... agreement we are with Wolff de- Martin a Had we concluded that disciplinary hearing that a is not a criminal proceeding, there would fendant a criminal charged trial. The inmate is not with a to reach a con- have beеn in that case no need statute, violation of criminal nor is the analysis. stitutional liberty inmate’s as a free eitizen threatened by potential Thus, Report curtailment. Rules Re- 10.The the Criminal ac- Wolff, cord with we hold a letter addressed an in- vision Commission includes major Boney George disciplinary mate F. to The Honorable proposed panoply not entitled to the full criminal comfnittee’s notes upon request proceeding, due an accused in a criminal rules. It available [footnote is the omitted] Law Also included State Librarian. Compare Gagnon changes. Scarpelli, proposed copy” v. rule “voted 1756, 781-82, 93 S.Ct. (1973) ; Morrissey Brewer, 92 S.Ct. 33 L.Ed.2d 484 standing problem discussed in Dim 28 L.Ed.2d 1 . . State, (Alaska mick 473 P.2d 616 standing problem dis- 1970). emphasized State, Note: It must cussed in Dimmick v. 473 P.2d 616 [jíc] split (Alaska that a exists within our committee proposed concerning the inclusion of The holdings of Harris and Dimmick which reads: imposed upon serious scope restrictions illegally Harris, ‘Evidence shall not exclusionary remedy. any purpose including the be used for upheld the United States impeachment impeachment of witness.’ his of a defendant prior statement obtained in violation police minority can be believe Arizona, Miranda v. disciplined turning properly without Harris .The ‍​‌‌​​​​‌‌‌‌‌​‌​‌​‌‌​‌‌​‌​​‌‌‌‌​​‌‌​​‌​‌​​‌​‌‌​‌​‍L.Ed.2d adopt majority criminals free. excep- decision established a use collateral reasoning in Dimmick Connor authorizing tion to the particular use of obtained evi- important government it is proof purposes dence than direct other obey the as enforce it and law well guilt. Dimmick holds that the exclu- probative excluding otherwise sionary remedy cannot be utilized a de- The mi- official misconduct deterred. victim fendant not the immediate who was objective nority would at want least

Case Details

Case Name: State v. Sears

Court Name: Alaska Supreme Court

Date Published: Aug 20, 1976

Citation: 553 P.2d 907

Docket Number: 2446

Court Abbreviation: Alaska