Brian WARING, Appellant, v. STATE of Alaska, Appellee. Scott P. ROBINSON, Appellant, v. STATE of Alaska, Appellee.
Nos. 5094, 5110.
Supreme Court of Alaska.
Sept. 9, 1983.
670 P.2d 357
James D. DeWitt, Call, DeWitt & Barrett, Fairbanks, for appellant Scott P. Robinson.
Elizabeth H. Sheley, Asst. Atty. Gen., Anchorage, Wilson F. Condon, Atty. Gen., Juneau, for appellee.
Before BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.
OPINION
COMPTON, Justice.
The primary issue in this petition for hearing from the court of appeals is whether Alaska‘s exclusionary rule, set forth in Evidence Rule 412, contains a standing requirement for search and seizure violations. We affirm the court of appeals’ holding that Rule 412 contains a standing requirement, but hold that under the Alaska Constitution there are exceptions to this requirement. Accordingly, we remand the case to the superior court to determine whether such exceptions are applicable in this case. We also reverse the court of appeals’ holding that none of the initial actions taken by the State Troopers constituted an unlawful seizure.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts relevant to this petition are as follows.1 On April 30, 1979, at about 1:30 a.m., State Troopers McGinnis and Ochs were traveling down Sheep Creek Road outside Fairbanks when they saw three young men standing next to a parked car in a roadside turnout. Before stopping to investigate, McGinnis called in the license number of the car and ascertained that it was properly registered and not stolen. As the Troopers approached the car, two of the men, G.R. and T.C., both minors, got down underneath the car and appeared to be inspecting it. McGinnis asked the man standing, Randy Robinson,2 whether anything was wrong. Randy replied that they had a problem with the tie rods on the car, but that they did not need assistance.
After entering the woods, McGinnis, Ochs and Randy came to a stream. Across the stream, McGinnis saw Appellants Brian Waring and Scott Robinson and saw that one of them was holding a rifle. McGinnis crossed the stream, entered the cabin, and asked Waring and Robinson about the gun. After receiving no helpful information, he went outside and found two guns hidden out of view about twenty feet from the cabin. He radioed in their serial numbers to headquarters and was told that the guns were stolen. McGinnis then asked Waring and Robinson if they knew the guns were stolen; Waring replied affirmatively, but said that he was keeping them for a friend.
All five men were taken to the police station, arriving about 2:40 a.m., and were then questioned separately. Although the Troopers knew that T.C. and G.R. were minors, the parents were not immediately notified that their children were in custody, which violated Children‘s Rule 6(b).
Mr. Bendock, the victim of a recent burglary, arrived at the station about 4:30 a.m. and identified the guns as his. He also brought a knife and lighter that he had found under the window where the burglars had entered his home. When G.R. was shown the items and heard Mr. Bendock‘s story, he confessed to the burglary. Upon learning of G.R.‘s confession, Waring and Robinson both gave statements. The two that were not involved in the burglary, Randy Robinson and T.C., were released sometime between 6:00 a.m. and 8:00 a.m. G.R.‘s parents were first notified that their son was in custody at about 9:15 a.m.
The three defendants, Waring, Scott Robinson, and G.R., moved to suppress most of the evidence against them; the motions were denied. Waring and Robinson were each convicted of burglary in a dwelling under former AS 11.20.080. G.R. was adjudicated a delinquent minor based on the same offense. In G.R. v. State, 638 P.2d 191 (Alaska App.1981), the court of appeals affirmed Waring‘s conviction, but remanded G.R.‘s and Robinson‘s cases for a determination of whether probable cause existed to arrest them at the time they were taken to the police station.3 Only Waring and Robinson petitioned this court to hear their cases. We granted the petition for hearing to review two holdings by the court of appeals: (1) that the Trooper‘s interactions with the three men at the car did not constitute an unlawful seizure; and (2) that Waring cannot have his confession suppressed because he has no standing to assert the violation of his co-defendants’ right against an unlawful seizure.
Waring and Robinson argue that Trooper McGinnis’ initial contact with the three men at the car was an unlawful seizure and that all incriminating evidence obtained thereafter should accordingly be suppressed. Waring also argues that because he confessed only after G.R. confessed, and because G.R.‘s confession is inadmissible if the superior court on remand finds that there was no probable cause to arrest G.R., his confession must also be suppressed. Underlying both of these arguments is the contention
II. STANDING TO ASSERT THE VIOLATION OF A CO-DEFENDANT‘S RIGHTS
In reaching its conclusion that Waring did not have standing to assert the violation of a co-defendant‘s rights, the court of appeals held that the adoption of Alaska Evidence Rule 412,5 an exclusionary rule, did not abrogate the traditional requirement of standing in search and seizure cases. 638 P.2d at 204. We agree with the reasoning behind this holding.
Evidence Rule 412, which became effective on August 1, 1979, superseded Criminal Rule 26(g).6 As we indicated in State v. Sears, 553 P.2d 907 (Alaska 1976), the notes of the Criminal Rules Revision Commission, which drafted Rule 26(g) in 1972, state that Rule 26(g) was proposed “‘to make clear that the protections of the Miranda Rule are not eroded.‘” 553 P.2d at 910.7 There is nothing, however, in these notes or in subsequent case law8 which indicates that Rule 26(g) addressed the standing issue in search and seizure cases.
Evidence Rule 412 did not abolish the standing requirement in search and seizure cases. Although the standing issue is not addressed in the text of the Rule, the Commentary to Rule 412 indicates as much. The Commentary discusses the two exceptions in Rule 412 to the general exclusionary rule, both of which regard the use of illegally obtained evidence in perjury prosecutions. It states, in part:
The second exception governs evidence obtained in violation of the fourth amendment and/or its Alaska counterpart, article I, section 14. Again a limitation is imposed: the evidence . . . must not have been obtained “in substantial violation of rights.” . . . The simple ref-
Alaska R.Evid. Commentary at 104-05 (emphasis added). The express language of the Commentary indicates that Rule 412 has “no bearing“—no effect—on the standing requirement, which implies that some form of a standing requirement remains intact. We believe that the Commentary accurately reflects the conclusion that the scope of Evidence Rule 412 is limited by the standing requirement in search and seizure cases.
The extent to which the standing requirement limits the exclusionary rule is a question of first impression in Alaska. Nevertheless, two previous decisions concerning the scope of the exclusionary rule, Elson v. State, 659 P.2d 1195, 1202 (Alaska 1983), and State v. Sears, 553 P.2d at 912, provide some guidance. In Elson and Sears, we held that the determination of whether the exclusionary rule applies to certain post-trial proceedings required a balancing of the purpose behind excluding illegally obtained evidence and the interest in admitting reliable evidence in those proceedings.
The purpose of the exclusionary rule is two-fold: to deter police from using unconstitutional methods of law enforcement, Mapp v. Ohio, 367 U.S. 643, 656, 81 S.Ct. 1684, 1692, 6 L.Ed.2d 1081, 1091 (1961), and to preserve the integrity of the judicial system by not permitting the courts to be a party to the lawless invasion of a citizen‘s constitutional rights. Terry v. Ohio, 392 U.S. 1, 13, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889, 901 (1968); Sears, 553 P.2d at 912.
In Elson and Sears, we noted that police generally conduct searches and arrests for the purpose of prosecuting and convicting an individual, not to enhance the sentence or revoke the parole of a defendant; therefore, the deterrent effect of excluding evidence in sentencing and probation proceedings would be minimal. Elson, 659 P.2d at 1203-04; State v. Sears, 553 P.2d at 912. In both cases, we concluded that this marginal deterrent value was outweighed by the needs of the probation and sentencing systems. Elson, 659 P.2d at 1202; Sears, 553 P.2d at 913. Nevertheless, we recognized that under some circumstances the deterrent effect of applying an exclusionary rule in probation and sentencing proceedings would be significant, e.g., if the illegal searches and arrests were consciously directed toward those proceedings. In Sears we stated:
In the event the lawless arrest and search or seizure is carried out by enforcement personnel with knowledge or reason to believe the suspect was a probationer, we would then apply the exclusionary rule in the probation revocation proceeding. For, in such a circumstance, the bar of the exclusionary rule would act as a significant deterrent to searches and arrests consciously directed toward probationers.
553 P.2d at 914. Following this reasoning, we held in Elson that if evidence was obtained for purposes of influencing the sentencing court, then it is inadmissible at sentencing. 659 P.2d at 1204 n. 28.
In considering whether a defendant has standing to assert the violation of a co-defendant‘s rights in search and seizure cases, we must also balance the competing interests, i.e., whether the interest in introducing reliable evidence that was obtained in violation of a co-defendant‘s fourth amendment rights outweighs the deterrent effect of excluding such evidence.
Similar to our holdings in Sears and Elson, we believe that law enforcement officers generally conduct searches and seizures of an individual‘s person or property for the purpose of prosecuting that individual, rather than for the purpose of prosecuting a co-defendant. If a search or seizure were unlawful, any resulting evidence would be excluded at the trial of the defendant whose rights were violated.9 To apply the exclusionary rule a second time in a co-defendant‘s trial would not serve any addi-
The deterrent values of preventing the incrimination of those whose rights the police have violated have been considered sufficient to justify the suppression of probative evidence even though the case against the defendant is weakened or destroyed. We adhere to that judgment. But we are not convinced that the additional benefits of extending the exclusionary rule to other defendants would justify further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth.
394 U.S. at 174-75, 89 S.Ct. at 966-67, 22 L.Ed.2d at 187.
Although we agree with the Supreme Court that allowing standing to assert the violation of a co-defendant‘s rights would not deter unlawful conduct in most situations, we believe deterrence would be furthered by such an allowance when the unlawful conduct is intentionally directed toward a particular defendant. The facts of Dimmick v. State, 473 P.2d 616 (Alaska 1970), which discusses the standing rule in the context of fifth amendment violations, illustrate the need for this exception to a standing requirement. Dimmick‘s co-defendant, Herman, requested an attorney after being given Miranda warnings. The police interrogated Herman without complying with his request, and his subsequent statement was used against Dimmick at Dimmick‘s trial. A police officer testified at trial that the violation of Herman‘s rights was directed toward Dimmick: “[T]he decision was made to go ahead and interview [Herman] after he had requested an attorney full-well knowing that then this confession could not be used against him but merely for the value of the confession against Mr. Dimmick.” 473 P.2d at 619. If the police knew that the unlawful confession could not have been used against Dimmick, there would have been no reason to violate Herman‘s rights. Thus, the deterrent effect of applying the exclusionary rule would be significant when a particular defendant is the target of the violation of another person‘s constitutional rights.
Turning to the other purpose of the exclusionary rule, we have indicated that judicial integrity requires the exclusion of evidence if it is obtained by gross or shocking police misconduct:
We can conceive of circumstances which would lead to the application of the exclusionary rule to revocation of probation proceedings. E.g., Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). In short, 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, would lead us to invoke the exclusionary rule.
State v. Sears, 553 P.2d at 914.
Furthermore, we believe that both purposes of the exclusionary rule, deterring misconduct and preserving judicial integrity, require the exclusion of evidence when police knowingly and intentionally violate a co-defendant‘s rights. In Dimmick, two of the four participating justices would have reversed Dimmick‘s conviction on this ground.10 Justice Rabinowitz objected to the deliberate refusal of the police to grant Herman‘s in-custody request for assistance of counsel. 473 P.2d at 623 (Rabinowitz, J., concurring in part, dissenting in part). Justice Connor also sought “to apply the exclusionary rule to police conduct which is intentionally or flagrantly illegal.” 473 P.2d at 629 (Connor, J., concurring in part, dissenting in part). Underlying this exception to the standing requirement is our refusal to condone improper police conduct. If a defendant were not given standing to assert the knowing violation of a co-defendant‘s rights, police could be encouraged to inten-
To summarize, we hold that a defendant has standing to assert the violation of a co-defendant‘s11 fourth amendment rights if he or she can show (1) that a police officer obtained the evidence as a result of gross or shocking misconduct, or (2) that the officer deliberately violated a co-defendant‘s rights.12 In this case, the court of appeals followed the federal rule that a defendant cannot under any circumstances assert the violation of a co-defendant‘s fourth amendment rights. G.R. v. State, 638 P.2d at 204. See Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 424-25, 58 L.Ed.2d 387, 394 (1978); Alderman v. United States, 394 U.S. at 171-72, 89 S.Ct. at 965, 22 L.Ed.2d at 185-86. We therefore find it necessary to remand this case so that a determination can be made whether either exception to the standing requirement is applicable.
III. UNREASONABLE SEIZURE
The remaining issue is whether the initial contact between Trooper McGinnis and Randy Robinson constituted an “unreasonable seizure” as prohibited by the fourteenth amendment to the United States Constitution and article I, section 14, of the Alaska Constitution.13 Determining wheth-
er the Trooper‘s contact with Randy was constitutionally permissible requires the following analysis. First, did the encounter amount to a seizure? Second, if so, is the reasonable suspicion exception to the probable cause requirement applicable?
Not all contacts between police and citizens involve “seizures” of persons. The difference between a permissible encounter and a seizure is explained in Florida v. Royer, — U.S. —, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983):
[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. . . . Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. . . . The person approached, however, . . . may not be detained even momentarily without reasonable, objective grounds for doing so . . . If there is no detention—no seizure within the meaning of the Fourth Amendment—then no constitutional rights have been infringed.
Id. at —, 103 S.Ct. at 1324, 75 L.Ed.2d at 236 (citations omitted). In Terry v. Ohio, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16, 20 L.Ed.2d at 905 n. 16, the United States Supreme Court noted that a seizure occurs “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. . . .” The Supreme Court has
In interpreting article I, section 14, of the Alaska Constitution, we will employ an objective standard to determine whether or not a seizure has occurred, i.e., whether or not a reasonable person would believe that he or she was free to go. We recognize that upon being confronted by a police officer, the average person would feel an obligation to respond to the officer‘s questions and not to walk away. Such a confrontation, therefore, will amount to a seizure “only if the officer added to those inherent pressures by engaging in” “conduct which a reasonable man would view as threatening or offensive even if coming from another private citizen.” 3 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.2, at 53, 54 (1978) (footnote omitted). “[T]he critical inquiry would be whether the policeman, although perhaps making inquiries which a private citizen would not be expected to make, has otherwise conducted himself in a manner consistent with what would be viewed as a nonoffensive contact if it occurred between two ordinary citizens.” Id. (footnote omitted).14
In this case, the trial court did not indicate whether any of the actions of Trooper McGinnis constituted a “seizure,” stating only that his stopping at the vehicle and crossing the stream were both reasonable actions. In its review of the record, the court of appeals found no seizure at any point because the three men “had no reason to feel that their freedom of movement had been restrained by a show of authority by the officer, since they were not moving anyway and were in no way prohibited from going about their business.” 638 P.2d at 196.
After reviewing the record surrounding the initial contact, we conclude that, as a matter of law, the actions of McGinnis constituted a seizure of Randy Robinson.15 As the court of appeals stated, the Troopers were entitled to stop and inquire if the men, who might have been stranded on the deserted road late at night, needed help. G.R. v. State, 638 P.2d at 195, citing Anchorage v. Cook, 598 P.2d 939 (Alaska 1979) (contact with person involved in motor vehicle accident is justified by society‘s interest in furnishing aid to persons). Assuming that a request for identification is not a seizure,16 Trooper McGinnis was also entitled to request identification and retain it briefly for inspection.17 When he instructed Randy to sit in the patrol car, however, he was conducting himself in a way a reasonable person “would view as threatening or offensive even if coming from another private citizen.” LaFave, supra, at 54. Upon such an assertion of au-
Case law in other jurisdictions support our conclusion. In Commonwealth v. Jones, 474 Pa. 364, 378 A.2d 835 (1977), an officer observed Jones walking along the highway, apparently hitchhiking. The officer stopped his police car, asked Jones for identification, and asked him to have a seat in the patrol car. In affirming the lower court‘s finding of a seizure, the court held that the officer “escalated the exercise of force by asking Jones to be seated in the car. This latter request was not merely an attempt to obtain information; rather, while stated as a question, it sought control of Jones’ movement.” Id. 378 A.2d at 840 (footnote omitted). In People v. Kennedy, 66 Ill.App.3d 267, 22 Ill.Dec. 905, 383 N.E.2d 713 (1978), a police officer approached the defendant, who was hitchhiking around one a.m., and asked what he was carrying in a brown paper bag. The defendant said that it contained a gun, at which point the officer ordered the defendant to stand at the rear of the squad car. The court held that a seizure took place when the officer asked the defendant to walk to the rear of the car because this “was [an] attempt . . . to control the physical movement of the defendant . . . .” Id. 22 Ill.Dec. at 911, 383 N.E.2d at 719. See also People v. Boodle, 47 N.Y.2d 398, 418 N.Y.S.2d 352, 354, 391 N.E.2d 1329, 1331 (1979) (seizure occurred when officer asked defendant to get in police car, given facts that officer commanded defendant to keep his hands exposed and that officer without explanation began driving the car); Hughes v. State, 588 S.W.2d 296, 299 (Tenn.1979) (seizure occurred when officer “invited” defendant to sit in the rear of patrol car, which had no inside handles or latches and thus could only be exited with someone else‘s assistance).
Having determined that a seizure did occur, the next issue is whether the seizure was constitutionally permissible. As a general rule, fourth amendment seizures of persons must be based on probable cause to arrest. Terry v. Ohio created a limited exception to this rule when the seizure is substantially less intrusive than a traditional arrest and the interest in crime detection and the police officer‘s safety outweighs the limited violation of individual privacy. 392 U.S. at 20-21, 88 S.Ct. at 1879, 20 L.Ed.2d at 905. See also Dunaway v. New York, 442 U.S. 200, 211, 99 S.Ct. 2248, 2255, 60 L.Ed.2d 824, 834 (1979). Terry applied this balancing test to justify pat-down searches for weapons, and it has since been applied to justify brief investigatory stops in roving border patrols, United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607, 617 (1975), and drug enforcement encounters in airports. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). In such cases, a seizure is permissible only when an officer can “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. at 1879, 20 L.Ed.2d at 906 (footnote omitted). In interpreting article I, section 14, of the Alaska Constitution, we have permitted temporary detention for questioning only when (1) the police officer has an actual suspicion that “imminent public danger exists or serious harm to persons or property has recently occurred,” and (2) this suspicion is reasonable. Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).
The facts in this case do not satisfy the test enunciated in Coleman. Before he approached the men, McGinnis called in the license number of the car and ascertained that it was properly registered and not stolen. After receiving their identification, he ran a record check on their identities. Neither of these procedures confirmed McGinnis’ suspicion of wrongdoing. When McGinnis took Randy Robinson to the patrol vehicle, he knew of no crime in which the men could have been involved and knew of no warrant for the arrest of any of them. No serious crime had been reported in that
Our holdings in other cases are not in conflict with this decision. In cases involving an investigatory stop or pat-down search, Ozenna v. State, 619 P.2d 477, 479 (Alaska 1980), Free v. State, 614 P.2d 1374, 1379 (Alaska 1980), Ebona v. State, 577 P.2d 698, 701 (Alaska 1978), and Coleman, 553 P.2d at 46, we recognized that a seizure had occurred, but held that it was justified because the officer had reasonable suspicion that either imminent public danger existed or serious harm to persons or property had recently occurred. In cases involving custodial interrogations, Hintz v. State, 627 P.2d 207 (Alaska 1981), Castillo v. State, 614 P.2d 756 (Alaska 1980), and Quick v. State, 599 P.2d 712 (Alaska 1979), we held that the defendant was not in custody and thus Miranda warnings were not required under the fifth amendment.19 In Henry v. State, 621 P.2d 1 (Alaska 1980), we held that the defendant was not “in custody” and thus probable cause to arrest was not required.20 In each of these cases, the issue of seizure was not discussed. Furthermore, in these cases the police specifically asked the defendant to come to the police station for questioning, and the defendant voluntarily agreed to do so. Henry, 621 P.2d at 2-3; Castillo, 614 P.2d at 764; Quick, 599 P.2d at 717.
IV. CONCLUSION
We hold that the seizure of Randy Robinson was unreasonable and accordingly pro-
If, however, on remand Waring and Robinson do not prevail on the seizure issue, the court must determine whether probable cause existed to arrest G.R. or Scott Robinson. If not, Robinson‘s conviction must be reversed. Furthermore, Waring‘s conviction must also be reversed if the court determines that he has standing to assert the unconstitutional arrest of G.R. or Scott Robinson and that there was no attenuation between the unconstitutional seizure and Waring‘s confession.
For the reasons discussed above, the case is REMANDED.
MATTHEWS, Justice, dissenting, in part.
I agree that in determining whether a seizure has taken place it is proper to ask whether the policeman has “conducted himself in a manner consistent with what would be viewed as nonoffensive contact if it occurred between two ordinary citizens. . . .” The trial court made no finding on this point, and the parties did not focus on it in eliciting evidence. I would therefore include in the order of remand directions to the trial court to hold a supplemental evidentiary hearing and to make findings as to whether a seizure of Randy Robinson occurred, using the standard announced in today‘s opinion.
In all other respects I agree with the majority opinion.