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Rockwell v. State (9/4/2009) ap-2233

Rockwell v. State (9/4/2009) ap-2233

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


MICHAEL ROCKWELL, )
) Court of Appeals No. A-9748
Appellant, ) Trial Court No. 3AN-04-508 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. )
) No. 2233 September 4, 2009
Appeal    from    the
          Superior  Court,  Third  Judicial  District,
          Anchorage,  Michael  L. Wolverton  and  John
          Suddock, Judges.

          Appearances:   Renee  McFarland,   Assistant
          Public   Defender,  Anchorage,  and  Quinlan
          Steiner, Public Defender, Anchorage, for the
          Appellant.  Kenneth M. Rosenstein  and  Eric
          A.  Ringsmuth, Assistant Attorneys  General,
          Office  of Special Prosecutions and Appeals,
          Anchorage,  and  Talis J. Colberg,  Attorney
          General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and Mannheimer
          and Bolger, Judges.

          BOLGER, Judge.

          Following  a two-car collision, Rockwell was  convicted
of  felony driving while under the influence and driving  with  a
revoked  license.1   In his original appeal  to  this  court,  he
argued, among other things, that the police interrogated  him  in
violation  of  Miranda v. Arizona2 and his right to counsel,  and
that, consequently, the superior court should have suppressed the
statements  he  made during that interrogation.  In  our  earlier
decision  in Rockwell v. State, we resolved these claims  largely
in  Rockwells favor, but  remanded the case to the superior court
for additional findings on precisely when Rockwells interrogation
became  custodial  for Miranda purposes.3  We also  directed  the
superior  court  to determine whether Rockwell  was  entitled  to
reversal   of   his  convictions  because  his  statements   were
erroneously admitted at his trial.4
          On  remand,  the  superior court  held  that  Rockwells
interrogation  became custodial as soon as he was seated  in  the
patrol  car  for questioning.  The court then held that  Rockwell
was entitled to reversal of his convictions because he might have
advanced a different defense if he had not been forced to contend
at  trial with all of the conflicting statements he made  to  the
police.
          For  the reasons discussed below, we conclude that  the
error  in  admitting Rockwells statements was harmless  beyond  a
reasonable  doubt.   We therefore reverse  the  decision  of  the
superior court and affirm Rockwells convictions.

     Facts and Proceedings
          The facts of this case are recounted in more detail  in
our  earlier opinion.  Rockwell was involved in a two-car  crash,
and shortly afterwards Anchorage Police Officer Amanda Patton saw
him  get out of the drivers seat of his car.5  Rockwell initially
admitted to Officer Patton that he had been driving, but  quickly
changed this account and said that he had not been driving.6
          Officer  Patton  went to interview the  driver  of  the
other  car and Officer Stephen Busby asked Rockwell to step  over
to  his  patrol  car.  Officer Busby observed that  Rockwell  had
bloodshot,  watery eyes and that he appeared to  be  intoxicated.
Rockwell  admitted that he was intoxicated and that  his  drivers
license  was  revoked.  But he claimed that another  man,  Joshua
Fagg,   had  been  driving  the  car  and  fled  from  the  scene
immediately after the collision.7
          Officer  Busby  then  asked  Rockwell  to  sit  in  the
backseat  of his patrol car; Busby later testified that he  asked
Rockwell  to  do  this  because it was cold  outside  (about  ten
degrees  Fahrenheit)  and to move Rockwell  away  from  traffic.8
Busby  did  not handcuff Rockwell and told him that  he  was  not
under  arrest.9   But before Rockwell got into  the  patrol  car,
Busby searched him for weapons and retrieved the keys to the  car
from  his back pocket.10  Moreover, Rockwell could not leave  the
patrol  car  without Busbys help because the rear doors  did  not
open  from the inside  though there was no evidence that Rockwell
was ever aware of this.11
          In  the patrol car, Busby questioned Rockwell about his
identity and his automobile insurance.  Rockwell admitted that he
had no insurance, but reiterated that his license was revoked and
          that he had not been driving.  Busby asked Rockwell how he could
contact  Fagg,  the man Rockwell had identified as the  driver.12
Rockwell replied that he did not know how to contact Fagg, but he
described  what  Fagg was wearing and told Busby which  direction
Fagg ran after the accident.  Busby then left the patrol car  for
about twenty seconds; when he returned, he told Rockwell that  he
was going to take him to the police substation for field sobriety
tests.13
          Busby continued to question Rockwell in the patrol  car
and  at  the  substation,  where he administered  field  sobriety
tests.14   He  then  arrested  Rockwell  for  driving  under  the
influence and transported him to a second substation for a breath
test,  which  showed  a blood alcohol level  of  .130  percent.15
After  the  breath test, Busby advised Rockwell  of  his  Miranda
rights.16  Rockwell demanded an attorney, but when Busby  offered
him  a  phone  to  call  an attorney, Rockwell  declined.   Busby
continued to question Rockwell.17
          In   our   earlier   decision,  we  divided   Rockwells
interrogation  into four parts: (1) the initial  contact  on  the
street at the scene of the accident; (2) the interrogation in the
patrol  car up until the point Busby announced that he  would  be
transporting Rockwell to the police substation for field sobriety
tests;  (3) the continued interrogation in the patrol car and  at
the two substations, up until Rockwell was advised of his Miranda
rights;  and (4) the interrogation after Rockwell was advised  of
his Miranda rights and asserted his right to counsel.18  We ruled
that  Rockwells questioning on the street was not custodial,  but
that  the interrogation became custodial, at the latest,  several
minutes  into  the patrol car interview, when Busby announced  he
was  transporting Rockwell to the substation for  field  sobriety
tests.19   We  also  ruled that Rockwells right  to  counsel  was
violated after he was advised of his Miranda rights, because  the
police  interrogated  him  after  he  had  already  demanded   an
attorney.20
          Because  we  lacked findings on all  of  the  pertinent
facts,  we  could not determine whether Rockwell was  in  custody
during  the first part of the patrol car interview (before  Busby
announced that he was taking Rockwell to the substation for field
sobriety  tests).  We therefore remanded the case to the superior
court  for  additional  findings on  when  the  interview  became
custodial.21   We also directed the superior court  to  determine
which of Rockwells statements should have been excluded at trial,
and  whether Rockwell was entitled to reversal of his convictions
because   those  statements  were  admitted   or,  alternatively,
whether the courts error in admitting the statements was harmless
beyond a reasonable doubt.22

     The Superior Courts Miranda Custody Analysis
          As   we  discussed  in  our  earlier  decision,  police
officers  are  not  required to give Miranda  warnings  during  a
traffic stop unless and until the initial stop ripens into  full-
blown custody.23  Generally a person is in custody when there  is
some  actual indication of custody, such that a reasonable person
would  feel  he  was  not  free to leave  and  break  off  police
questioning.24   When  we  remanded  this  case,  we  viewed  the
          question of whether Rockwell was in custody during the first part
of  the patrol car interview as hinging on two unresolved factual
questions:   whether  Busby retained Rockwells  keys  during  the
interview,  and  whether Rockwell knew he  could  not  leave  the
patrol  car during the interview because the doors did  not  open
from the inside.25
          Superior   Court   Judge  Michael  L.  Wolverton   made
findings  on  both of these issues.  He found that there  was  no
evidence  to  indicate or suggest that Busby  ever  returned  the
defendants keys while he was sitting in the patrol car.  He  also
adopted  our   observation  that  there  was  no  testimony  that
Rockwell  knew that he was unable to get out of the  backseat  of
the  patrol  car  unless the officer let him  out.   Thus,  Judge
Wolvertons findings on the custody issue were split:  One finding
(that  Busby kept Rockwells keys) suggested that Rockwell was  in
custody,  and the other (that Rockwell was unaware he  could  not
open the rear patrol car doors) suggested that he was not.
          However,   Judge  Wolverton  did  not  rely  on   these
findings,  at least not expressly, when he reversed  his  earlier
decision  and  held that Rockwell was in custody  throughout  the
patrol  car  interview.  Instead, Judge Wolverton relied  on  our
general  discussion in Brown v. State26 about  the  psychological
pressures  inherent in traffic stops.  Judge Wolverton  concluded
that  our  decision  in  Brown   which  was  issued  after  Judge
Wolvertons  initial  order denying Rockwells motion  to  suppress
was instructive, if not decisive, on the [custody] issue.
          Brown  involved a routine traffic stop for an equipment
violation:   A  state  trooper stopped Brown  because  the  light
illuminating her license plate was dirty.27  Brown  had  a  valid
drivers license and there were no warrants for her arrest, so the
trooper  decided to let her go with a warning.28  But the trooper
did not tell Brown why he had stopped her, or that he had decided
not  to issue her a citation; instead, he obtained Browns consent
to  search her person and car for both weapons and drugs.  During
this  search,  he  found a crack cocaine pipe in  the  lining  of
Browns coat, and cocaine in her purse.29
          We  ruled that this search violated article I,  section
14  of  the  Alaska Constitution.30  We cited several factors  to
support  our  conclusion:  The search for weapons and  drugs  was
unrelated  to  the reason for the stop (a traffic violation)  and
was  not  supported by any suspicion of criminal  activity.   The
trooper  never  told  Brown  why she was  stopped,  and  she  was
therefore  ignorant  of the basis for the troopers  assertion  of
authority  over her, with no way of knowing if she had the  right
to refuse his request.  And finally, the trooper never told Brown
that she was, or would soon be, free to go.31
          The  circumstances in Brown, and the  legal  issues  it
raised,  are distinct from this case.  The question here  is  not
whether the police violated the search and seizure clause of  the
Alaska  Constitution by requesting consent to search for  weapons
and drugs during a routine traffic stop, but whether Rockwell was
in  custody  for Miranda purposes when the police questioned  him
after a traffic accident.
          As  Rockwell  points out, however, Judge Wolverton  did
not  rely  on  Brown for its legal holding, but for  its  general
          discussion of the psychological pressures inherent in traffic
stops.   Judge Wolverton quoted our observation in Brown that  an
officer retains the upper hand and the accouterments of authority
during a traffic stop, and that most motorists will not feel free
to  walk  away,  and  do  not know when  the  officer  lacks  the
authority  to detain them.32  Based on these observations,  Judge
Wolverton concluded that, in spite of Officer Busbys low-key  and
quiet  demeanor, these psychological pressures were such  that  a
motorist in Rockwells situation would not feel free to leave.
          Unlike  the defendant in Brown, who was never told  why
she  was  stopped, Rockwell knew why Officer Busby detained  him:
because he was involved in a vehicle collision.  But even  if  we
were  to  assume that Rockwell did not feel free to leave  during
the  early part of the patrol car interview because of  the  same
psychological  pressures present in Brown, or  in  traffic  stops
generally,  that does not establish that Rockwell was in  custody
for  Miranda purposes.  Both the United States Supreme Court  and
the Alaska Supreme Court have recognized that a person who is  in
custody for [F]ourth [A]mendment purposes, i.e., a person who has
been  seized, is not necessarily entitled to Miranda  warnings.33
Miranda  warnings are required only if the motorist  is  detained
under  circumstances substantially more coercive than the typical
traffic  stop,  and  that  coercion  actually  impairs  the  free
exercise of the privilege against self-incrimination ... .34   On
the  question of whether Rockwells circumstances met this  higher
standard, Brown offers no real guidance.
          In  light of Judge Wolvertons findings on remand, it is
arguable  that Rockwell was in custody during the early  part  of
the  patrol car interview.  But we need not resolve that question
because,  even  assuming Rockwell was in custody  throughout  the
patrol car interview, the superior courts error in admitting  his
statements was harmless beyond a reasonable doubt.

     Admission of Rockwells Statements was Harmless Error
          Judge Suddocks ruling
          On  remand, Rockwells case was transferred to  Superior
Court Judge John Suddock, who presided over Rockwells trial,  for
a  decision on whether the error in admitting Rockwells custodial
statements  prejudiced the outcome of his trial.   Judge  Suddock
found  that the error in admitting Rockwells statements  was  not
harmless  beyond  a  reasonable  doubt,  and  that  Rockwell  was
therefore entitled to a reversal of his convictions.
          When  evidence obtained in violation of the  defendants
constitutional rights is improperly admitted at trial,  we  apply
the standard announced in Chapman v. California to assess whether
the error entitles the defendant to a reversal.35  Under Chapman,
constitutional  error is harmless only if the  government  proves
beyond  a  reasonable doubt that the error did not contribute  to
the  verdict  obtained.36  The question is  whether  there  is  a
reasonable possibility that the evidence complained of might have
contributed  to  the  conviction.37  This standard  applies  when
evaluating whether a defendant was prejudiced by the admission of
evidence  obtained in violation of  Miranda38  or  the  right  to
counsel.39
          When   we   previously  remanded  Rockwells  case,   we
          recognized that the superior courts error in admitting Rockwells
statements  was potentially harmless under the Chapman  standard.
We  noted  that  many  of  the statements seemingly  support  the
defense  that  Rockwell offered at trial, and they are  seemingly
redundant  of the admissible statements that Rockwell  made  when
Busby  first  questioned  him  on  the  street   i.e.,  Rockwells
assertion  that Joshua Fagg had been driving the  car,  and  that
Fagg had fled the scene following the accident.40
          Judge Suddock did not apply this analysis.  He did  not
consider  whether  the erroneously admitted statements  supported
Rockwells   defense,  or  were  redundant  of  other   admissible
evidence.  Nor did he base his ultimate conclusion that  Rockwell
was entitled to reversal of his convictions on a finding that the
wrongly  admitted statements contributed to the jurys finding  of
guilt.   Instead, Judge Suddock speculated that if the court  had
properly  excluded Rockwells statements to the  police,  Rockwell
might  have  abandoned  his defense that  Fagg  was  driving  and
claimed  that  he lied to the police about Fagg  to  protect  the
identity  of  the  real  driver.  Judge Suddock  found  that  the
admission of Rockwells statements to the police compromised  this
alternative defense because the many inconsistencies in Rockwells
statements  made him far less credible.  But for the  statements,
Judge  Suddock  reasoned,  Rockwell would  have  been  forced  to
contend with only one lie [that Fagg was driving], understandable
in human terms, but not a panoply of details regarding Mr. Fagg.
          This  analysis  improperly focused  on  a  hypothetical
defense.  Harmless error review looks to the record of the actual
trial to determine if the courts error contributed to the verdict
obtained.41   As  the  United States Supreme Court  explained  in
Sullivan v. Louisiana:
          Harmless-error review looks ... to the basis
          on   which  the  jury  actually  rested  its
          verdict.   The inquiry, in other  words,  is
          not   whether,  in  a  trial  that  occurred
          without  the  error, a guilty verdict  would
          surely  have been rendered, but whether  the
          guilty  verdict  actually rendered  in  this
          trial  was  surely  unattributable  to   the
          error.    That  must  be  so,   because   to
          hypothesize a guilty verdict that was  never
          in  fact rendered  no matter how inescapable
          the  findings to support that verdict  might
          be     would    violate    the    jury-trial
          guarantee.42
          A   harmless   error  analysis  cannot  be   based   on
speculation about how the defendant might have argued his case if
there  had  been  no  error.  Such an analysis  would  entitle  a
defendant  to  reversal  in  any  case  where  the  court   could
hypothesize  an  arguably  more effective  defense  strategy.   A
reviewing  court  cannot  meaningfully  predict  or  assess  what
verdict  a jury might have reached based on a litigation strategy
that  was  never  pursued, testimony that was never  offered,  or
impeachment that never took place.  The Supreme Court  recognized
this principle in Coy v. Iowa, when it held that the state courts
assessment  on  remand of whether a violation of  the  defendants
          constitutional right to confront a witness was harmless cannot
include  consideration of whether the witness[s] testimony  would
have been unchanged, or the jurys assessment unaltered, had there
been  confrontation; such an inquiry would obviously involve pure
speculation.43
          Alaska  courts have similarly recognized that  harmless
error  review cannot be  based on speculation.  For instance,  in
State  v. Wickham, the Alaska Supreme Court held that a defendant
must  testify to preserve a claim that the trial court  erred  in
ruling  that the State could impeach a defendants testimony  with
evidence  of his prior convictions.44  The supreme court reasoned
that  the  factual vacuum caused by the absence of the defendants
testimony  creates  an  unacceptable level  of  speculation  when
making the harmless error determination.45
          Likewise,  in Sam v. State,46 we held that a  defendant
who  abandoned his  diminished-capacity defense could  not  later
claim that the court erred by preliminarily ruling that the State
would  be entitled to call an expert to rebut that defense if  it
was  offered.  Citing Wickham, we noted the inherent  uncertainty
and  artificiality  of applying a harmless error  analysis  in  a
purely  hypothetical or abstract context ... .47   In  Sam,  this
uncertainty  was  pronounced:   There  was  no  offer  of   proof
detailing Sams diminished capacity defense or the States rebuttal
testimony;  nor  did  the State unequivocally  commit  itself  to
calling  the expert.48  We thus concluded that [a]ny  attempt  to
divine   the  likely  effect  of  the  alleged  error  in   these
circumstances would amount to pure speculation.49
          In  this  case, Judge Suddocks harmless error  analysis
hinged  on  the speculative assumption that Rockwell  would  have
presented a different defense if his statements had been properly
excluded  at trial.  But Rockwell never advanced this alternative
defense  in the superior court, and there was no offer  of  proof
detailing  the  evidence  he would have offered  to  support  the
defense, or the evidence the State would have presented to  rebut
it.   We  do not know if Rockwell would have taken the stand  and
testified that someone other than Fagg was the driver, or whether
the  State  would  have  sought  to  admit  Rockwells  suppressed
statements to impeach that testimony.50  As in Wickham  and  Sam,
we  cannot divine the likely effect of the courts error  in  this
purely hypothetical context.
          That  is  not to say that our assessment of  whether  a
defendant  is prejudiced by a trial courts error may  never  take
account  of  the  effect of that error on  the  defendants  trial
strategy.   We considered, but did not resolve, this question  in
Motta  v.  State.51   In  Motta, the  defendants  confession  was
admitted   at   trial,  and  the  defendant  then  testified   to
essentially  the  same  version  of  events  contained  in   that
confession.52   After  we  determined that  the  court  erred  in
admitting  Mottas confession, we asked the parties for additional
briefing on whether our harmless error analysis should take  into
account  the possibility that Motta might not have testified,  or
might  have  testified differently, if the court had granted  his
suppression motion.53  In our subsequent memorandum decision,  we
noted  that  there was some authority holding that  a  defendants
trial  testimony  is  tainted if he is compelled  to  testify  to
          overcome the impact of an illegally obtained confession.54  But
we  reached  no decision on whether to follow that  authority  in
Mottas  case, because we concluded that his testimony was not  so
tainted.55
          There  is  no  indication in this case  that  Rockwells
chosen defense was compelled by the courts error in admitting his
illegally  obtained  statements.   Rockwell  never  asserted   in
superior  court, or in his original briefing on appeal (that  is,
in  the briefing he submitted before his case was remanded), that
he  would  have  argued his case differently had  his  motion  to
suppress  been granted  much less that he would have adopted  the
particular  defense that Judge Suddock proposed.  Any  number  of
factors might have influenced Rockwells defense, not the least of
which is what Rockwell told his attorney about what happened.  As
Rockwell  concedes, there is no hint in the record that  he  told
the  police that Fagg was driving to protect the identity of some
other driver.
          Rockwell  argues that the reason there is  no  evidence
to  support  this alternative defense is that he  was  forced  to
contend  with  his  statements at trial, thus precluding  such  a
defense.  This was also apparently Judge Suddocks view; he  found
that  but for the [wrongly admitted] statements, Rockwells lawyer
could  have  defended  on the basis that  Rockwell  ...  lied  to
protect the actual driver by blaming Josh Fagg (who was in  South
America at the time of the incident).
          We   have  no  doubt  that  Rockwells  credibility  was
seriously undermined by the many inconsistent statements he  made
to  the  police  (which  are well documented  in  Judge  Suddocks
order).   But  those inconsistencies did not undermine  Rockwells
credibility  with  respect to whether Fagg or  someone  else  was
driving.   Rather, they undermined the credibility  of  Rockwells
assertion  that he was not driving.  The evidence  that  directly
challenged Rockwells claim that Fagg was driving was the evidence
that  Fagg  was  in  Peru at the time.  If that  evidence  (Faggs
testimony,  his  passport, and other travel  documents)  did  not
persuade  Rockwell to alter his defense, it is hard  to  see  how
suppression  of  evidence  that went to his  general  credibility
would have.  We find no basis in the record to conclude that  the
admission of Rockwells statements precluded (or even discouraged)
Rockwell  from  arguing that he told the  police  that  Fagg  was
driving to protect the identity of the real driver.
          Because  we  conclude that Rockwells  defense  was  not
compelled by the superior courts error in admitting his illegally
obtained statements, we have no reason to decide whether we would
apply  a  different analysis, or reach a different conclusion  on
the  question of prejudice, if Rockwell had convinced us that his
defense was so tainted.







          Harmless Error Analysis
          Because  Judge Suddock made factual findings on remand,
the  only  issue  before us is one of law:  whether  there  is  a
reasonable  possibility that the erroneously admitted  statements
contributed to the jurys verdicts.56
          The  only disputed issue at Rockwells trial was whether
he  was  driving; he did not contest that he was  intoxicated  or
that his license was revoked.  Judge Suddock found that the State
proved with admissible evidence that Rockwells defense that  Fagg
was  driving  was  demonstrably  bogus.   There  was  substantial
evidence  to  support  this  finding.   Fagg  testified  that  he
traveled  to Peru in December 2003 and did not leave until  March
2004.   (The  offenses  took place on January  16,  2004.)  Faggs
testimony  was  corroborated by his passport, which  was  stamped
when he entered Peru from Ecuador on December 27, 2003, and again
when he departed Peru on March 23, 2004.  The court also admitted
an  immigration  card Fagg filled out when  he  entered  Peru  on
December 27, 2003, and a bus ticket he purchased while there.57
          Rockwell  argues that this evidence was not  conclusive
because there was no specific evidence that Fagg was out  of  the
country  on  the  night of the offenses. Rockwell  observes  that
there  was  no stamp in Faggs passport showing that he  reentered
the  United  States, and yet he appeared in person  at  Rockwells
trial.   But as Fagg testified, the United States does not  stamp
the  passports  of  its  citizens.  And if  Fagg  left  Peru  and
returned  to  the United States before the January  incident,  as
Rockwell suggests, his passport would show that he reentered Peru
sometime  between January and his final departure  from  Peru  on
March  23,  2004.  Rockwell has thus not established  that  Judge
Suddock clearly erred in his finding.
          Moreover,  there  was  other  admissible  evidence   to
undermine Rockwells claim that Fagg was driving.  Officer  Patton
testified  that she saw Rockwell get out of the drivers  side  of
the  vehicle,  and  that Rockwell admitted to having  done  this.
Rockwell  also  initially admitted to Patton  that  he  had  been
driving, though he quickly changed his account and said that Fagg
had  been driving.  Furthermore, Officer Busby testified that  he
retrieved  the  keys to the car from Rockwells back  pocket,  and
that the car was registered to Rockwell.
          The  jury  also heard the grand jury testimony  of  the
driver  of  the  other car, who testified that  he  observed  two
people  Rockwell and a man in a dark suit  get out of the drivers
side  of the vehicle, and that the other man ran from the  scene.
(Officer  Patton partially contradicted this testimony at  trial,
testifying that the driver of the other car told her at the scene
that  Rockwell was driving and that the other man fled  from  the
passenger  side  of  the  car.58)  But given  how  the  case  was
litigated   that  is,  given  Rockwells  defense  that  Fagg  was
driving, and the States evidence that Fagg was in Peru  there  is
no  reasonable  possibility that the jury  would  have  acquitted
Rockwell  based on this grand jury testimony, even if  the  court
had  properly  excluded Rockwells illegally obtained  statements.
We therefore conclude that the superior courts error in admitting
Rockwells statements was harmless beyond a reasonable doubt.

     Conclusion
          For  the foregoing reasons, we REVERSE the decision  of
the superior court and AFFIRM Rockwells conviction.
_______________________________
     1    AS 28.35.030(n) and AS 28.15.291(a)(1), respectively.

     2 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

     3 176 P.3d 14, 22-23 (Alaska App. 2008).

     4 Id. at 23.

     5 Id. at 17.

     6 Id.

     7 Id.

     8 Id. at 17, 20.

     9 Id. at 17.

     10   Id.

     11   Id. at 21.

12   Id. at 20.

     13   Id.

     14   Id. at 17.

     15   Id.

     16   Id.

     17   Id.

     18   Id. at 19.

     19   Id.

     20   Id. at 22.

     21   Id. at 20-21, 23.

     22   Id. at 23.

     23    Id.  at 18 (quoting Blake v. State, 763 P.2d 511,  515
(Alaska App. 1988)).

     24   McCollum v. State, 808 P.2d 268, 269 (Alaska App. 1991)
(quoting Hunter v. State, 590 P.2d 888, 895 (Alaska 1979)).

25   Rockwell, 176 P.3d at 21.

     26   182 P.3d 624 (Alaska App. 2008).

     27   Id. at 626.

     28   Id. at 627.

     29   Id.

     30   Id. at 634.

     31   Id.

32   Id. at 630.

     33   Blake, 763 P.2d at 514 (citing Berkemer v. McCarty, 468
U.S.  420,  437-39, 104 S. Ct. 3138, 3148-50, 82 L.  Ed.  2d  317
(1984)  and  Waring  v.  State, 670 P.2d 357,  366  n.19  (Alaska
1983)); see also Berkemer, 468 U.S. at 436-37, 104 S. Ct. at 3148-
49  (quoting  Delaware v. Prouse, 440 U.S. 648, 653,  99  S.  Ct.
1391, 1396, 59 L. Ed. 2d 660 (1979)) ([W]e have long acknowledged
that   stopping   an  automobile  and  detaining  its   occupants
constitutes  a  seizure  within  the  meaning  of  [the   Fourth]
Amendmen[t], even though the purpose of the stop is  limited  and
the resulting detention quite brief.(alterations in original)).

     34    Blake,  763  P.2d at 515 (emphasis  added);  see  also
McCollum, 808 P.2d at 269.

     35   386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).

     36   Id. at 24, 87 S. Ct. at 828.

     37    Id.  at  23,  87  S.  Ct.  at  827  (quoting  Fahy  v.
Connecticut, 375 U.S. 85, 86-87, 84 S. Ct. 229, 230, 11 L. Ed. 2d
171 (1963)).

     38    See McMahan v. State, 617 P.2d 494, 497 (Alaska 1980);
Scharver v. State, 561 P.2d 300, 303 (Alaska 1977); Kalmakoff  v.
State,  199 P.3d 1188, 1203 (Alaska App. 2009);  Jones v.  State,
65 P.3d 903, 909-10 (Alaska App. 2003).

     39    See  Gunnerud v. State, 611 P.2d 69, 76 (Alaska 1980);
Lewis v. State, 779 P.2d 806, 808 (Alaska App. 1989).

40   Rockwell, 176 P.3d at 23.

     41   Chapman, 386 U.S. at 24, 87 S. Ct. at 828.

     42   508 U.S. 275, 279, 113 S. Ct. 2078, 2081-82, 124 L. Ed.
2d 182 (1993) (emphasis in original) (internal citations omitted)
(quoting  Yates  v. Evatt, 500 U.S. 391, 404, 111  S.  Ct.  1884,
1893,  114  L. Ed. 2d 432 (1991), overruled on other  grounds  by
Estelle v. McGuire, 502 U.S. 62, 72 n.4, 112 S. Ct. 475, 482 n.4,
116 L. Ed. 2d 385 (1991)).

43    487  U.S.  1012, 1021, 108 S. Ct. 2798, 2803,  101  L.  Ed.
2d 857 (1988).

     44   796 P.2d 1354, 1358 (Alaska 1990).

     45   Id.

     46   842 P.2d 596, 598-99 (Alaska App. 1992).

     47   Id. at 599.

     48   Id.

     49   Id.

     50    See  State  v. Batts, 195 P.3d 144, 148  (Alaska  App.
2008).

     51   911 P.2d 34, 41 (Alaska App. 1996).

     52   Id. at 38.

     53   Id. at 41.

     54    Motta  v.  State, Alaska App. Memorandum  Opinion  and
Judgment  No. 4227  at 13 n.24 (June 7, 2000), 2000 WL 727765  at
*7  n.24 (citing Harrison v. United States, 392 U.S. 219, 225, 88
S.  Ct. 2008, 2011, 20 L. Ed. 2d 1047 (1968) (Having released the
spring  by  using the petitioners unlawfully obtained confessions
against him, the Government must show that its illegal action did
not  induce  his  testimony.)) (declining to resolve  the  States
contention  that  Harrison  was no longer  good  authority  after
Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222
(1985)).

     55    Motta,  911 P.2d at 40 n.2; Motta, Memorandum  Opinion
and Judgment No. 4227 at 13-14, 2000 WL 727765 at *8.

     56   See, e.g., State v. Shewfelt, 948 P.2d 470, 471 (Alaska
1997); Motta, 911 P.2d at 39-41.

     57   Rockwell, 176 P.2d at 23.

     58   Id. at 17.

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