exclusionary rule in Alaska

2022In D.E.D. v. State we explained that “even if the procedural and jurisdictional defects . . . existed in the earlier temporary custody hearings, they were cured by the subsequent procedurally correct final disposition hearing.”10 After Green’s attorney was appointed at the temporary custody hearing, the court held a subsequent 9 See State v. Sears, 553 P.2d 907, 911-12 (Alaska 1976) (explaining that the exclusionary rule in criminal proceedings aims to deter unconstitutional actions by law enforcement and to protect the judiciary from participating in “lawless invasions of the constitutional r

2014Under the exclusionary rule, “evidence obtained from an unconstitutional search or seizure is inadmissible and must be excluded.”6 In Nevers v. State we considered for the first time whether the exclusionary rule should apply to search and seizure violations in license revocation proceedings.7 Citing State v. Sears,8 we balanced the costs of applying the rule against its benefits.9 On the cost side, we noted that “application of the exclusionary rule to license revocation hearings will in some cases frustrate the important state interest in keeping drunk drivers off the road by excluding perti

2025The evidence was not admissible based on the independent source exception to the exclusionary rule “[T]he exclusionary rule renders inadmissible evidence obtained indirectly as a result of an unlawful search or seizure as well as evidence directly obtained thereby.” 25 Given our holding that the search warrant was constitutionally infirm, evidence directly or indirectly obtained from the unlawful search of Lookhart’s and Cranford’s cell phones must be suppressed, unless an exception to the exclusionary rule applies. 26 On appeal, the State argues for the first time that an exception to the exc

2025The evidence was not admissible based on the independent source exception to the exclusionary rule “[T]he exclusionary rule renders inadmissible evidence obtained indirectly as a result of an unlawful search or seizure as well as evidence directly obtained thereby.” 25 Given our holding that the search warrant was constitutionally infirm, evidence directly or indirectly obtained from the unlawful search of Lookhart’s and Cranford’s cell phones must be suppressed, unless an exception to the exclusionary rule applies. 26 On appeal, the State argues for the first time that an exception to the exc

2021And second, the exclusionary rule should be 9 See, e.g., Copelin v. State, 659 P.2d 1206, 1214-15 (Alaska 1983) (holding that an exclusionary remedy is appropriate to deter future illegal conduct by police or when the statutory violation at issue had an effect on the defendant’s ability to present a defense at trial); Farrell v. Anchorage, 682 P.2d 1128, 1131 (Alaska App. 1984) (failure of police to make even a minimal effort to accommodate the right to communicate with an attorney required suppression of breath test result); Whisenhunt v. Dep’t of Pub.

1990In Ward , we reasoned that "the breathalyzer test... provides time for reflection before action and ... consists of intentional efforts by the police to obtain evidence," and therefore "application of the exclusionary rule will serve to deter future illegal police conduct." Id., quoting Copelin at 1214.

2020Ass’n, 279 P.3d 589, 595 (Alaska 2012)). 23 Heller v. State, Dep’t of Revenue, 314 P.3d 69, 74 (Alaska 2013) (quoting City of Dillingham v. CH2M Hill Nw., Inc., 873 P.2d 1271, 1276 (Alaska 1994)). -21- 7444 but the ‘plain meaning rule’ is not an exclusionary rule; we will look to legislative history as a guide to construing a statute’s words.”24 C.

2001Bd., 664 P.2d 547, 552 (Alaska 1983), cert. denied, 464 U.S. 937 , 104 S.Ct. 346 , 78 L.Ed.2d 312 (1983) ("[S]tatutory construction adopted by those responsible for administering a statute should not be overruled in the absence of `weighty reasons.'"). [11] See Matanuska-Susitna, 726 P.2d at 175 . [12] Id. at 176 . [13] See id. [14] Borg-Warner Corp. v. Avco Corp., 850 P.2d 628 , 633 n. 12 (Alaska 1993). [15] State, Dep't of Natural Resources v. City of Haines, 627 P.2d 1047 , 1049 n. 6 (Alaska 1981) (internal citations omitted); see also Dillingham v. CH2M Hill Northwest, 873 P.2d 1271, 1276

2003Cf. Sundberg, 611 P.2d at 52 ("In the event a history of excessive force arrests is shown, demonstrating that existing deterrents are illusory, we will not hesitate to reexamine the question of whether an exclusionary deterrent should be fashioned...."); Nathan, 955 P.2d at 533 (noting, in declining to apply the exclusionary rule, the absence of evidence of persistent, purposeful violations of the statute). 22 .

1987In State v. Sundberg, 611 P.2d 44 (Alaska 1980) we decided not to apply the exclusionary rule to an excessive force arrest because we noted that there are other deterrents and at that time there was no history of excessive force arrests.

1996See Rakas v. Illinois, 439 U.S. 128 , 132 n. 2, 99 S.Ct. 421 , 425 n. 2, 58 L.Ed.2d 387 (1978) ("[A] person whose Fourth Amendment rights were violated by a search or seizure, but who is not a defendant in a criminal action in which the illegally seized evidence is sought to be introduced, [has no] standing to invoke the exclusionary rule to prevent use of that evidence in that action."); Wayne R.

1996See Rakas v. Illinois, 439 U.S. 128 , 132 n. 2, 99 S.Ct. 421 , 425 n. 2, 58 L.Ed.2d 387 (1978) ("[A] person whose Fourth Amendment rights were violated by a search or seizure, but who is not a defendant in a criminal action in which the illegally seized evidence is sought to be introduced, [has no] standing to invoke the exclusionary rule to prevent use of that evidence in that action."); Wayne R.

1983The 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.

1983The 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.

2020See Moreau v. State, 588 P.2d 275, 280 (Alaska 1978) (“The exclusionary rule is not the type of doctrine designed to protect against conviction of the innocent.

2012In Moreau, the supreme court held that claims involving the exclusionary rule are "not appropriately raised for the first time on appeal." Id. at 280 .

2008Rather, as used by our supreme court in Sears, Hilson, and Waring, this phrase refers to "intentional", "gross", or "shocking" police misconduct. 34 See also the concurring opinion of Justice Connor in Dimmick v. State, 473 P.2d 616, 629 (Alaska 1970), where he advocated the position that, regardless of the normal limits on the application of the exclusionary rule, the rule should still be applied to all cases of "police conduct which is intentionally or flagrantly illegal".

1983Justice 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).

1985Previously we have identified two purposes of the exclusionary rule: (1) to deter unconstitutional methods of law enforcement and (2) to insure judicial integrity by prohibiting courts from becoming party to "lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions.” Sears, 553 P.2d at 912 (quoting Terry v. Ohio, 392 U.S. 1, 13 , 88 S.Ct. 1868, 1875 , 20 L.Ed.2d 889, 901 (1968) and J.M.A. v. State, 542 P.2d 170 (Alaska 1975)).

1985Previously we have identified two purposes of the exclusionary rule: (1) to deter unconstitutional methods of law enforcement and (2) to insure judicial integrity by prohibiting courts from becoming party to "lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions.” Sears, 553 P.2d at 912 (quoting Terry v. Ohio, 392 U.S. 1, 13 , 88 S.Ct. 1868, 1875 , 20 L.Ed.2d 889, 901 (1968) and J.M.A. v. State, 542 P.2d 170 (Alaska 1975)).

2025The evidence was not admissible based on the independent source exception to the exclusionary rule “[T]he exclusionary rule renders inadmissible evidence obtained indirectly as a result of an unlawful search or seizure as well as evidence directly obtained thereby.” 25 Given our holding that the search warrant was constitutionally infirm, evidence directly or indirectly obtained from the unlawful search of Lookhart’s and Cranford’s cell phones must be suppressed, unless an exception to the exclusionary rule applies. 26 On appeal, the State argues for the first time that an exception to the exc

2012LaFave, Search and Seizure: A Treatise on the Fourth Amendment (4th ed. 2004), § 11.4(a), Vol. 6, p. 265, n. 55. 1 This distinction was also addressed by the Alaska Supreme Court in Smith v. State, 948 P.2d 473 (Alaska 1997); [PJroperly applied, the "independent source" exception [to the exclusionary rule] allows the prosecution to use evidence only if it was, in fact, obtained by fully lawful means....

1980As to the origins and development of the exclusionary rule, see, e. g., Weeks v. United States, 232 U.S. 383 , 34 S.Ct. 341 , 58 L.Ed. 652 (1914); Olmstead v. United States, 277 U.S. 438 , 48 S.Ct. 564 , 72 L.Ed. 944 (1928); Elkins v. United States, 364 U.S. 206 , 80 S.Ct. 1437 , 4 L.Ed.2d 1669 (1960); Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961); Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968); United States v. Janis, 428 U.S. 433 , 96 S.Ct. 3021 , 49 L.Ed.2d 1046 (1976).

1980As to the origins and development of the exclusionary rule, see, e. g., Weeks v. United States, 232 U.S. 383 , 34 S.Ct. 341 , 58 L.Ed. 652 (1914); Olmstead v. United States, 277 U.S. 438 , 48 S.Ct. 564 , 72 L.Ed. 944 (1928); Elkins v. United States, 364 U.S. 206 , 80 S.Ct. 1437 , 4 L.Ed.2d 1669 (1960); Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961); Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968); United States v. Janis, 428 U.S. 433 , 96 S.Ct. 3021 , 49 L.Ed.2d 1046 (1976).

2014See Alvarez v. State, Dep't of Admin., Div. of Motor Vehicles, 249 P.3d 286, 296 (Alaska 2011) (holding, in part, that whether the police have reasonable suspicion to stop a driver is irrelevant in a license suspension proceeding because the exclusionary rule does not apply); Nevers v. State, Dep't of Admin., Div. of Motor Vehicles, 123 P.3d 958, 966 (Alaska 2005) (holding that the exclusionary rule does not apply to license revocation hearings as a general rule). 4 .

2014Under the exclusionary rule, “evidence obtained from an unconstitutional search or seizure is inadmissible and must be excluded.”6 In Nevers v. State we considered for the first time whether the exclusionary rule should apply to search and seizure violations in license revocation proceedings.7 Citing State v. Sears,8 we balanced the costs of applying the rule against its benefits.9 On the cost side, we noted that “application of the exclusionary rule to license revocation hearings will in some cases frustrate the important state interest in keeping drunk drivers off the road by excluding perti

1996State v. Alex, 646 P.2d 203 , 208-09 n. 4 (Alaska 1982) (citing State, Dep't of Natural Resources v. City *788 of Haines, 627 P.2d 1047 , 1049 n. 6 (Alaska 1981)); see also North Slope Borough v. Sohio Petroleum Corp., 585 P.2d 534 , 540 n. 7 (Alaska 1978) ("We reject the so-called `plain meaning' rule as a strict exclusionary rule.").

1996State v. Alex, 646 P.2d 203 , 208-09 n. 4 (Alaska 1982) (citing State, Dep’t of Natural Resources v. City of Haines, 627 P.2d 1047 , 1049 n. 6 (Alaska 1981)); see also North Slope Borough v. Sohio Petroleum Corp., 585 P.2d 534 , 540 n. 7 (Alaska 1978) (“We reject the so-called ‘plain meaning’ rule as a strict exclusionary rule.”).

2014This Court recognized in Harker v. State, 637 P.2d 716 (Alaska App.1981), that it is sometimes appropriate to apply the exclusionary rule to violations of a statute (as opposed to violations of the constitution), and *961 Harker sets forth the factors that a court should consider when making this assessment.

2008While the majority and dissenting opinions in Hudson may have persuasive value, our ultimate duty is to employ the test set forth in Harker v. State, 637 P.2d 716, 719 (Alaska App.1981), 3 to independently determine whether a violation of our state statute triggers the exclusionary rule.

2008Later that same year, in Waring v. State, 670 P.2d 357 (Alaska 19883), the supreme court decided that evidence obtained in violation of one co-defendant's Fourth Amendment rights could be used in the prosecution of the other co-defendants.

1984In 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. 670 P.2d at 362 , quoting State v. Sears, 553 P.2d 907, 914 (Alaska 1976).

2005Winfrey v. State, 78 P.3d 725, 729 (Alaska App.2003), citing Smith v. State, 948 P.2d 473, 477 (Alaska 1997), quoting Erickson v. State, 507 P.2d 508, 516 (Alaska 1973): “Once a causal connection is established between the proffered evidence and the primary illegality, the evidence must be excluded unless [it] falls within [some exception to the exclusionary rule]". 41 . 903 P.2d 1090 (Alaska App.1995). 42 .

1997We first recognized the independent source exception to the exclusionary rule in Erickson v. State, 507 P.2d 508 (Alaska 1973).

1989Relying on the same statutes, the Zelin-ski court further reasoned that a security guard who arrests and searches a suspected shoplifter, or who detains a suspect for delivery to the police, is acting “pursuant to statutory authority to promote a state interest in bringing offenders to public accounting,” and that the exclusionary rule is the appropriate means for enforcing the proper exercise of that statutory authority. 155 Cal.Rptr. at 581-582 , 594 P.2d at 1006-07 .

1989Relying on the same statutes, the Zelin-ski court further reasoned that a security guard who arrests and searches a suspected shoplifter, or who detains a suspect for delivery to the police, is acting “pursuant to statutory authority to promote a state interest in bringing offenders to public accounting,” and that the exclusionary rule is the appropriate means for enforcing the proper exercise of that statutory authority. 155 Cal.Rptr. at 581-582 , 594 P.2d at 1006-07 .

1982Cf. United States v. Janis, 428 U.S. 433, 446-60 , 96 S.Ct. 3021, 3028-34 , 49 L.Ed.2d 1046, 1056-64 (1976), reh'g denied, 429 U.S. 874 , 97 S.Ct. 196 , 50 L.Ed.2d 158 (1976); United States v. Calandra, 414 U.S. 338, 347-53 , 94 S.Ct. 613, 619-22 , 38 L.Ed.2d 561, 571-74 (1974).

1982Cf. United States v. Janis, 428 U.S. 433, 446-60 , 96 S.Ct. 3021, 3028-34 , 49 L.Ed.2d 1046, 1056-64 (1976), reh'g denied, 429 U.S. 874 , 97 S.Ct. 196 , 50 L.Ed.2d 158 (1976); United States v. Calandra, 414 U.S. 338, 347-53 , 94 S.Ct. 613, 619-22 , 38 L.Ed.2d 561, 571-74 (1974).

1997Here, however, the exclusionary rule is being applied to a violation of statutory rights conferred by AS 12.25.150. 1 In Zsupnik v. State, 789 P.2d 357 (Alaska 1990), this court held that the exclusionary rule applies to evidence procured in violationof AS 12.25.150.

1997However, the court did so not because it determined the right secured by that statute was of a fundamental or constitutional nature; rather, it applied the exclusionary rule because “the refusal 'of a telephone call after the arrestee is in custody at a station involves an intentional act in a situátion where an officer can calmly reflect on his action before taking it.” Id. at 361 .

2021Safety, 746 P.2d 1298, 1300 (Alaska 1987) (excluding breath test result in a civil license revocation hearing where police violated the arrestee’s right to consult with an attorney before taking the test); Zsupnik v. State, 789 P.2d 357, 361 (Alaska 1990) (holding that a person arrested for DUI had a statutory right to contact both a lawyer and a relative during the observation period and that violations of this statutory right for purposes related to the defense process requires exclusion of the breath test).

1988See also Whisenhunt v. State, Department of Public Safety, 746 P.2d 1298, 1299 (Alaska *91 1987) (violation of statutory right to consult counsel before being required to decide whether to submit to breathalyzer test requires suppression of breathalyzer results in a civil license revocation proceeding).

1996State v. Alex, 646 P.2d 203 , 208-09 n. 4 (Alaska 1982) (citing State, Dep't of Natural Resources v. City *788 of Haines, 627 P.2d 1047 , 1049 n. 6 (Alaska 1981)); see also North Slope Borough v. Sohio Petroleum Corp., 585 P.2d 534 , 540 n. 7 (Alaska 1978) ("We reject the so-called `plain meaning' rule as a strict exclusionary rule.").

1996State v. Alex, 646 P.2d 203 , 208-09 n. 4 (Alaska 1982) (citing State, Dep’t of Natural Resources v. City of Haines, 627 P.2d 1047 , 1049 n. 6 (Alaska 1981)); see also North Slope Borough v. Sohio Petroleum Corp., 585 P.2d 534 , 540 n. 7 (Alaska 1978) (“We reject the so-called ‘plain meaning’ rule as a strict exclusionary rule.”).

1980As to the origins and development of the exclusionary rule, see, e. g., Weeks v. United States, 232 U.S. 383 , 34 S.Ct. 341 , 58 L.Ed. 652 (1914); Olmstead v. United States, 277 U.S. 438 , 48 S.Ct. 564 , 72 L.Ed. 944 (1928); Elkins v. United States, 364 U.S. 206 , 80 S.Ct. 1437 , 4 L.Ed.2d 1669 (1960); Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961); Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968); United States v. Janis, 428 U.S. 433 , 96 S.Ct. 3021 , 49 L.Ed.2d 1046 (1976).

1980As to the origins and development of the exclusionary rule, see, e. g., Weeks v. United States, 232 U.S. 383 , 34 S.Ct. 341 , 58 L.Ed. 652 (1914); Olmstead v. United States, 277 U.S. 438 , 48 S.Ct. 564 , 72 L.Ed. 944 (1928); Elkins v. United States, 364 U.S. 206 , 80 S.Ct. 1437 , 4 L.Ed.2d 1669 (1960); Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961); Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968); United States v. Janis, 428 U.S. 433 , 96 S.Ct. 3021 , 49 L.Ed.2d 1046 (1976).

2025The addendum cited Cranford’s consent and stated that evidence found on Cranford’s phone “showed Lookhart used his iPhone during the commission [of the crimes], and to facilitate the said crimes.” The court granted the State’s request to conduct a second search of Lookhart’s phone. 30 27 Kalmakoff v. State, 257 P.3d 108, 125 (Alaska 2011) (quoting Wong Sun, 371 U.S. at 417 ). 28 Cruse v. State, 584 P.2d 1141, 1145 (Alaska 1978) (quoting Wong Sun, 371 U.S. at 488 ). 29 Id. 30 The State did not file this addendum in the superior court until several months after the jury returned its verdicts.

1992However, Alaska law on this issue is defined by Cruse v. State, 584 P.2d 1141 (Alaska 1978).

2020Requiring such an election is “inconsistent with [our] constitutional values.”47 As in McCracken we conclude that, for cases in which AS 47.12.100(c)(2) applies, it is necessary to exercise our “inherent supervisory powers” to create an exclusionary rule preventing the State — over the juvenile’s objection — from using a minor’s juvenile waiver hearing testimony,48 and the fruits of that testimony, at a 46 See AS 47.12.100(c)(2)(B); Resek v. State, 706 P.2d 288, 294 (Alaska 1985) (“In a forfeiture proceeding the danger of self-incrimination is even greater than in a parole revocation hearing,

1980Similarly, the Coleman court fashioned an exclusionary rule whereby "upon timely objection the testimony of a probationer at a probation revocation hearing held prior to the disposition of criminal charges arising out of the alleged violation of the conditions of his probation, and any evidence derived from such testimony, is inadmissible against the probationer during subsequent proceedings on the related criminal charges ..." 120 Cal. Rptr. at 402 , 533 P.2d at 1042 .