Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


Anderson v. State (1/28/2011) ap-2294

Anderson v. State (1/28/2011) ap-2294

                                                 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 

KEVIN J. ANDERSON,                                ) 
                                                  )         Court of Appeals No. A-10297 
                            Appellant,            )       Trial Court No. 3AN-07-6537 CR 
                                                  ) 
             v.                                   )                   O P I N I O N 
                                                  ) 
STATE OF ALASKA,                                  ) 
                                                  )        No. 2294 - January 28, 2011 
                            Appellee.             ) 
                                                  ) 

                 Appeal     from    the  District    Court,    Third   Judicial    District,
 
                 Anchorage, Alex Swiderski, Judge.
 

                 Appearances:      Rex    Lamont    Butler,   Rex   Lamont     Butler   and
 
                 Associates, Inc., Anchorage, for the Appellant.          Ann B. Black,
 
                 Assistant Attorney General, Office of Special Prosecutions and
 
                 Appeals, Anchorage, and Daniel S. Sullivan, Attorney General,
 
                 Juneau, for the Appellee.
 

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

                 COATS, Chief Judge.
 
                 BOLGER, Judge, concurring.
 
                 MANNHEIMER, Judge, dissenting.
 

                 While     driving   on   a  snowy     day,   Kevin    J.  Anderson     hit  and   killed   a 

pedestrian. The police investigated the accident but did not suspect Anderson of any 

----------------------- Page 2-----------------------

wrongdoing. An officer told Anderson that he was required by statute to provide blood 

and urine samples for testing because he had been involved in an accident that caused 

death or serious physical injury to another person. They transported Anderson to a police 

substation. 

              At the substation, the police allowed Anderson to contact his attorney. After 

discussing the matter with his attorney, Anderson provided the requested samples. Based 

on the test results, which showed that Anderson's blood alcohol level was .08 percent 

and that he had consumed marijuana, the State charged Anderson with driving under the 
influence.1 

              Anderson filed a motion to suppress the evidence from his blood and urine 

samples. Anderson pointed out that the police had incorrectly advised him about their 

authority:  the police could only require him to submit the blood and urine samples if 
they had probable cause to believe he had committed a crime.2 

              District Court Judge Alex Swiderski agreed that the police did not have 

statutory authority to seize Anderson's blood and urine samples.  Because the police had 

misrepresented their authority to collect the samples, Judge Swiderski concluded that 

they had illegally detained Anderson when they transported him to the police substation. 

However Judge Swiderski concluded that Anderson's consultation with his attorney 

before providing the samples had insulated Anderson's consent from the officers' prior 

illegal conduct, and the consent was voluntary. 

              Anderson filed motions for reconsideration, arguing that he had not had a 

meaningful conversation with his attorney. Judge Swiderski denied the motions, finding 

       1   AS 28.35.030(a). 

       2   State v. Blank, 90 P.3d 156, 162 (Alaska 2004). 

                                            - 2 -                                        2294 

----------------------- Page 3-----------------------

that the evidence at the suppression hearing supported the conclusion that Anderson was 

able to meaningfully consult with his attorney. 

                 After his motions for reconsideration were denied, Anderson had a bench 

trial based on stipulated facts.       Judge Swiderski found him guilty of driving under the 

influence.    Anderson appeals. We affirm his conviction. 

                 Discussion 

                 When   an   illegal   seizure   or   arrest   by   the   police   precedes   a   defendant's 

consent to search, the State must show that the defendant's subsequent consent was 
voluntary   and   not   tainted   by   the   illegal   police   conduct.3   As   just   explained,   Judge 

Swiderski ruled that Anderson's consultations with his attorney dissipated the taint from 

the   officer's   prior   illegal   conduct,   and   that   his   consent   was   voluntary.    Anderson 

challenges both of these conclusions.  Viewing the evidence in the light most favorable 
to the trial court's rulings, the record supports Judge Swiderski's decision.4 

                 Judge Swiderski found that the officer's misrepresentation of authority was 

not intentional.   Anderson does not challenge this finding on appeal, and it is supported 

by the record.     The officer testified that he did not believe Anderson had committed a 

crime, and that when he requested the blood and urine samples, he was not investigating 

        3    Skjervem v. State, 215 P.3d 1101, 1108-09 (Alaska App. 2009); Moore v. State, 119 

P.3d 1018, 1020-21 (Alaska App. 2005); see also Halberg v. State, 903 P.2d 1090, 1094 (Alaska 
App. 1996) (citing Brown v. Illinois, 422 U.S. 590, 602, 95 S. Ct. 2254, 2261, 45 L. Ed. 2d 416 
(1975)) (other citations omitted). 

        4    See Brown, 422 U.S. at 602, 95 S. Ct. at 2261; Frink v. State, 597 P.2d 154, 168 

(Alaska 1979); McBath v. State, 108 P.3d 241, 243-44 (Alaska App. 2005); Crawford v. State, 
100 P.3d 440, 444 (Alaska App. 2004); Halberg, 903 P.2d at 1094. 

                                                   - 3 -                                               2294
 

----------------------- Page 4-----------------------

a crime or looking for evidence.   He requested the samples because he believed he was 

required to by state law. 

               Anderson was a forty-five-year-old lawyer and the police did not suspect 

him of any wrongdoing. The police were polite and courteous throughout the contact, 

and Anderson was not arrested at gunpoint, handcuffed, or surrounded by police officers. 

After he was   transported to the police substation, Anderson was allowed to call his 

attorney, who was not immediately available.  The police allowed Anderson to wait for 

the attorney to call back.     They also permitted Anderson to call his wife and insurance 

adjuster, and offered to let him call anyone else he wanted to talk with. 

               When Anderson's attorney, Rex Lamont Butler, returned Anderson's call, 

Butler   spoke   with   Anderson.    Butler   then   discussed   the   implied   consent   law   with 

Anchorage   Police   Officer   Thomas   Gaulke.       Officer   Gaulke   directed    Butler   to   his 

supervisor, Lieutenant Nancy Reeder.  After his conversation with Reeder, Butler spoke 

with Anderson again. After talking with his attorney a second time, Anderson consented 

to providing the blood and urine samples. 

               The record thus shows that the police did not limit Anderson's   time to 

consult with his attorney, and they allowed him to make other personal phone calls. 

There was an interval of approximately forty minutes between   when the police first 

incorrectly asserted they had the legal authority to collect the blood and urine samples 

and when Anderson consented to provide the samples.  Although this time interval was 

not great, the record supports Judge Swiderski's finding that Anderson had time to reflect 

on his decision to consent. 

               We note that Anderson initially declined to provide the breath and urine 

samples when the officers told him he was statutorily required   to do so.              Anderson 

continued to refuse to cooperate with the police's assertion of authority until after he had 

                                               - 4 -                                          2294
 

----------------------- Page 5-----------------------

consulted with Butler. And it was not until after his second conversation with Butler that 

Anderson consented to provide the samples of his blood and urine.                   These facts lend 

substantial support to Judge Swiderski's conclusion that Anderson's consent was not 

tainted by the police's incorrect assertion of authority. 

                Although Anderson contends   he   was not fully able to consult with his 

attorney because of a lack of privacy, Judge Swiderski found that the attorney's side of 

the conversation was not overheard and that neither Anderson nor his attorney asked for 

more privacy.     Judge Swiderski also noted that the record did not reveal the content of 

Anderson's conversation with his attorney. 

                The parties do not dispute that Butler is an experienced criminal defense 

attorney, and Anderson has not challenged the advice Butler gave him. Butler may have 

accurately   advised   Anderson   that   he   was   not   required   to   provide   blood   and   urine 

samples.    But there were also significant advantages in having Anderson provide the 

samples if Anderson believed he was not impaired.               Anderson had just hit and killed a 

pedestrian.    It was in his interest to prove that he was not impaired at the time of the 

accident. 

                Why would Anderson provide the samples if there was a risk they would 

incriminate him? Anderson may have underestimated his level of impairment. Anderson 

told the police he had consumed one beer a little more than an hour before the collision. 

The    officer   investigating   the  accident    only   detected   a  "faint"  odor   of  alcohol   on 

Anderson's breath and did not observe any signs of impairment. If Anderson told Butler 

he was not impaired, Butler might have advised Anderson to provide the samples to 

protect himself against possible later criminal charges or a civil lawsuit.             Or Anderson 

could have reached this conclusion on his own.   Therefore, on the record before him, it 

was reasonable for Judge Swiderski to conclude that Anderson's consent to provide the 

                                                 - 5 -                                            2294
 

----------------------- Page 6-----------------------

samples was based upon his consultation with his attorney rather than on what he was 

told by the police. 

                 In   his   dissent,   Judge   Mannheimer   finds   it   implausible   that   Anderson 

received correct advice from his attorney.  It is certainly possible that Anderson received 

incorrect advice.  Butler is an experienced attorney, but determining whether Anderson 

was   required   by   law   to   submit   blood   and   urine   samples   required   knowledge   of   the 
supreme court's decision in State v. Blank.5 

                 On its face, AS 28.35.031(g) requires a person to provide blood and urine 

samples   if   he   "is   involved   in   a   motor   vehicle   accident   that   causes   death   or   serious 

physical injury to another person."  But in Blank, the Alaska Supreme Court held that for 

this statute to be constitutional, the State must also show that "probable cause to search 
exists and the search falls within a recognized exception to the warrant requirement."6 

As Judge Mannheimer points out, Butler had little chance to do independent research on 

this issue.  Therefore, it is certainly possible that Butler made the same legal mistake that 

the police made and advised Anderson that he was required to provide the samples.  Or, 

as we have previously pointed out, Butler might have concluded, based on Anderson's 

representations, that the samples would tend to exonerate Anderson.                    It might not have 

been important for Butler to know definitively what the law required if he thought the 

evidence would be exculpatory and that providing it would be in Anderson's interest. 

                 So it is certainly possible that, had Anderson and/or Butler testified, Judge 

Swiderski might have faced a different legal question in resolving Anderson's motion 

to suppress.    But Anderson never produced this evidence; he never asserted that Butler 

        5    90 P.3d 156, 162 (Alaska 2004). 

        6    90 P.3d at 162. 

                                                   - 6 -                                                2294 

----------------------- Page 7-----------------------

gave him the wrong legal advice, or that he was coerced. In the absence of this evidence, 

there was no reason for Judge Swiderski to presume that Anderson received bad advice. 

We conclude that Judge Swiderski could properly find, on the record before the court, 

that   the   State   carried   its   burden   of   proving   that   Anderson's   conversations   with   his 

attorney dissipated the taint from the police's illegal conduct, and that Anderson made 

the voluntary choice to provide the blood and urine samples. 

                 Conclusion 

                 Based   on   the   record   before   us,   we   AFFIRM   the   trial   court's   denial   of 

Anderson's motion to suppress. 

                                                   - 7 -                                              2294
 

----------------------- Page 8-----------------------

BOLGER, Judge, concurring. 

                I am writing separately to emphasize the factors we have applied in the past 

to determine whether a suspect's consent to a search is tainted by an earlier illegal arrest. 

In Brown v. Illinois, the United States Supreme Court suggested the following factors for 

determining whether a confession is tainted:           (1) "the temporal proximity of the arrest 

and   the   confession,"   (2)   "the   presence   of   intervening   circumstances,"   and   (3)   "the 
purpose or flagrancy of the official misconduct."1           We have applied the same factors to 

determine whether a suspect's consent to a search is tainted.2                In my opinion, Judge 

Swiderski's decision was based on a proper application of these factors. 

                The first factor focuses on the time between the illegal detention and the 

suspect's consent.      Anderson consented to provide the blood and urine samples only 

forty minutes after he was initially detained.   This factor weighs in favor of suppression 

of the evidence obtained from the samples Anderson provided. 

                The second factor focuses on the presence of intervening circumstances. 

One intervening circumstance that may dissipate the taint of an illegal detention is an 
opportunity to contact counsel.3       Indeed, the opportunity to actually consult with counsel 

is widely recognized as an important intervening circumstance.4                  I agree with Judge 

        1   Brown v. Illinois, 422 U.S. 590, 603-04 (1975). 

        2   See McBath v. State, 108 P.3d 241, 244 (Alaska App. 2005). 

        3   See Kalmakoff v. State, 199 P.3d 1188, 1201 (Alaska App. 2009); Halberg v. State, 

903 P.2d 1090, 1098 (Alaska App. 1995); see also Frink v. State, 597 P.2d 154, 169 (Alaska 
1979) (noting that consultation with counsel was a factor supporting a voluntary consent to 
search). 

        4   See Brown, 422 U.S. at 611 (Powell, J., concurring); United States v. Wellins, 654 

F.2d 550, 555 (9th Cir. 1981); People v. Boyer, 133 P.3d 581, 609 (Cal. 2006); State v. Jones, 

                                                 - 8 -                                             2294
 

----------------------- Page 9-----------------------

Swiderski's conclusion that Anderson's consultation with counsel was an important 

circumstance dissipating the taint of his illegal detention.               This factor weighs against 

suppression. 

                 The    third   factor   focuses    on  the   purpose    or  flagrancy     of  the  official 

misconduct. We have described flagrant police misconduct as conduct that is "obviously 
illegal" or "particularly egregious."5         In this case, the fact that the investigating officers 

detained Anderson in good faith reliance on a statute suggests that their conduct was not 

obviously   illegal.     The   fact   that   the   officers   treated   Anderson   patiently   and   politely 

suggests that their conduct was not particularly egregious.  There is no evidence that the 

officers threatened to force Anderson to provide samples; they planned to apply for a 

search warrant if he refused.        This factor also weighs against suppression. 

                 Ultimately,   the   question   of   whether   a   suspect's   consent   to   a   search   is 

voluntary or the product of duress is a question of fact to be determined by the trial court 
based on the totality of the circumstances.6          Under the circumstances of this case, Judge 

Swiderski   could   reasonably   conclude   that   Anderson's   opportunity   to   consult   with 

counsel sufficiently dissipated the taint arising from the officers' good faith demand for 

blood and urine samples. 

558 S.W.2d 233, 238 (Mo. App. 1977); State v. Graf, 721 N.W.2d 381, 386-87 (N.D. 2006) 
(collecting similar cases). 

        5   McBath, 108 P.3d at 248. 

        6    Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973); Frink, 597 P.2d at 167-68; 

Punguk v. State, 784 P.2d 246, 247 (Alaska App. 1989). 

                                                   - 9 -                                               2294
 

----------------------- Page 10-----------------------

MANNHEIMER, Judge, dissenting. 

                Kevin Anderson was convicted of driving under the influence based on the 

results of chemical testing of his blood and urine. Anderson "consented" to let the police 

take the blood and urine samples only after the police unlawfully transported him to a 

police station for this purpose, and only after the police repeatedly - and erroneously 

-   told   both   Anderson   and   his   attorney   that   the   police   had   the   legal   right   to   force 

Anderson to give these samples, even if he was otherwise unwilling. 

                My     colleagues     conclude    that,  under    these   circumstances,      Anderson 

"voluntarily" consented to give the blood and urine samples to the police - and, thus, 

the test results were admissible against Anderson. 

                According to the majority opinion, we can tell that Anderson's decision was 

"voluntary" because the officers treated Anderson politely, because the officers were 

acting in good faith (that is, the officers honestly but wrongly believed that they had the 

authority to force Anderson to provide the blood and urine samples), and because the 

officers gave Anderson an ample opportunity to speak with his attorney before Anderson 

acquiesced in the officers' demand.         I find these rationales unconvincing. 

                My analysis of this case begins with the fact that Anderson was subjected 

to an illegal arrest when the police told him that he was required to submit to blood and 

urine testing, and when the police then transported him to the police station for this 

purpose. 

                The pertinent statute, AS 28.35.031(g), does not authorize the police to 

demand blood or urine samples from a motorist unless the police have probable cause 

to believe that the motorist has committed a crime.  State v. Blank, 90 P.3d 156, 161-64 

(Alaska 2004).      As both my colleagues and the State concede, when the officers told 

                                                 -  10 -                                           2294
 

----------------------- Page 11-----------------------

Anderson that he was required to accompany them to the police station and submit to 

blood and urine testing, the officers did not have probable cause to believe that Anderson 

had committed any crime.          Therefore, even though Anderson peaceably acquiesced in 

the   officers'   demand,   Anderson's   transportation   to   the   police   station   constituted   an 

unlawful arrest. 

                 There may have been no formal announcement of arrest, but the police 

restrained Anderson's freedom of movement to a "degree which the law associates with 
formal arrest". 1    As this Court noted in Haag v. State, 117 P.3d 775, 779 (Alaska App. 

2005), "[if a person] is involuntarily transported a lengthy distance, or if the [person] is 

detained at another location for a lengthy period of time, the detention will be deemed 

an arrest." 

                 The fact that the police honestly believed that they were entitled to take 

Anderson   into   custody   for   this   limited   purpose,   and   the   fact   that   the   police   treated 

Anderson politely when they ordered Anderson to accompany them to the police station, 

do not change the fact that the arrest was illegal. 

                 Because Anderson was illegally arrested, any evidence stemming from that 

arrest   must   be   suppressed   unless   the   evidence   was   obtained   in   a   way   sufficiently 

independent of the illegal arrest that we can fairly say it was "purged of the primary 

taint" of that arrest.    Wong Sun v. United States, 371 U.S. 471, 488; 83 S.Ct. 407, 417; 

9 L.Ed.2d 441 (1963). 

                 My colleagues assert that, even though Anderson was illegally arrested, his 

post-arrest decision to surrender blood and urine samples to the police was nevertheless 

"voluntary" and untainted by the unlawful arrest.               In support of their conclusion, my 

        1   Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (4th ed. 

2004),  5.1(a), Vol. 3, p. 12. 

                                                  -  11 -                                               2294 

----------------------- Page 12-----------------------

colleagues cite the facts that (1) the officers treated Anderson politely, (2) the officers 

were acting in good faith when they told Anderson that they had the authority to force 

him to give these samples, and (3) the officers gave Anderson an ample opportunity to 

speak with his attorney before Anderson acquiesced in the officers' demand.                       Here are 

the   reasons   why   I   conclude   that   these   factors   are   insufficient   to   purge   the   taint   of 

Anderson's illegal arrest: 

                 In his treatise on the law of search and seizure, Professor LaFave discusses 

the question of whether an arrestee's consent to a search of their person is tainted by the 

preceding unlawful arrest.         See Wayne R. LaFave, Search and Seizure:                 A Treatise on 

the Fourth Amendment (4th ed. 2004),  8.2(d), Vol. 4, pp. 79-84. 

                 Professor LaFave notes that "an illegal arrest bears uniquely on the question 

of [the] voluntariness [of a person's ensuing decision to allow the police to conduct the 

search]" - because an unlawful arrest "constitutes a false claim of authority over the 

person in much the same way that reliance upon an illegal search warrant constitutes a 
false claim of authority over the premises named in the warrant." 2 

                 Thus,     just  as  a  [person's]    "consent"     to  search    premises 
                 prompted by an illegal warrant is not voluntary, a "consent" 
                 to   [a]   search   of   the   person   following   an   illegal   arrest   is 
                 likewise      not   voluntary.       The      making      of   the   arrest 
                 communicates an assertion of authority to maintain custody 
                 of the individual and, by common understanding, to also the 
                 search the person incident to that custody. 

LaFave,  8.2(d), Vol. 4, p. 80. 

         2   Id. at 79-80. 

                                                   -  12 -                                               2294 

----------------------- Page 13-----------------------

                 This reasoning applies even more forcefully to the facts of Anderson's case 

-     because,   here,   the   officers   did  not   merely   impliedly    assert    the  right   to  search 

Anderson's   person;   rather,   the   officers  explicitly   asserted   that   they   had   the   right   to 

demand body samples from Anderson.                  This was the officers' stated justification for 

taking   Anderson   into   custody   in   the   first   place.    And   when,   at   the   police   station, 

Anderson expressed uncertainty about whether to cooperate, the officers repeatedly told 

him that he was required by law to give them the blood and urine samples. 

                 The fact that the officers made their demand politely does nothing to alter 

the   involuntariness      of  Anderson's      decision    to  acquiesce     in  the  officers'   demand. 

Likewise, the fact that the officers were operating under a good-faith mistake about their 

authority (or, rather, their lack of authority) to demand the body samples does nothing 

to alter the involuntariness of Anderson's decision. 

                 This brings me to the last factor that my colleagues rely on:               the fact that 

Anderson had an opportunity to consult his attorney before he made his decision. 

                 It is true, as Judge Bolger notes in his concurrence, that courts often treat 

a defendant's consultation with counsel as an intervening event that will dissipate the 

taint of an earlier unlawful arrest.  But the cases that Judge Bolger relies on all involved 

situations where a defendant, after consultation with counsel, made a post-arrest decision 

to submit to a police interview, or to consent to a search, with full understanding that the 

defendant had no obligation to cooperate with the police investigation. 

                 The courts in these cases naturally assumed that, during the defendant's 

consultation with counsel, the attorney advised the defendant that he or she could refuse 

to be questioned, or could refuse to consent to the search.                 But there can be no such 

assumption in Anderson's case.            Both Anderson and his attorney were repeatedly told 

that Anderson had no right to refuse the police request for blood and urine samples. 

                                                   -  13 -                                             2294
 

----------------------- Page 14-----------------------

              There is, perhaps, some small possibility that Anderson's attorney might 

have fully and accurately informed Anderson that the police officers were wrong, and 

that Anderson did in fact have the right to refuse their demand for body samples.  Under 

this scenario, Anderson (after receiving this legal advice, and acting with full knowledge 

of his Fourth Amendment rights) might have voluntarily decided to waive his rights and 

to cooperate with the police by giving them the body samples. 

              But although my colleagues apparently subscribe to this view of the matter, 

I find this scenario implausible.   There is nothing in the record to show that Anderson 

received correct legal advice from his attorney. Indeed, the record strongly suggests the 

opposite. 

              After Anderson advised his attorney of the situation (i.e., that Anderson had 

been taken into custody, and that the police were demanding body samples from him), 

Anderson's attorney spoke to the officer who had taken Anderson into custody.            This 

officer told the attorney that, under the law, Anderson was obliged to furnish the body 

samples.   Anderson's attorney then asked to speak to the officer's supervisor, a police 

lieutenant.   The lieutenant told the attorney the same thing:    Anderson was required to 

surrender the body samples. 

              There is no indication, from the police testimony, that Anderson's attorney 

ever contradicted the officers' assertions of authority.   Indeed, the testimony of Thomas 

Gaulke (the officer who took Anderson into custody) indicates that Anderson's attorney 

acquiesced in the officers' assertions of authority and directed his client to provide the 

body samples: 

                      Officer   Gaulke:     [Anderson's    attorney]  talked  to 
              Lieutenant Reeder.     Based upon [the] conversation that he 
              had with Lieutenant Reeder - as far as the [im]plied consent 

                                            -  14 -                                      2294
 

----------------------- Page 15-----------------------

                law goes, [and] whatever questions he and Lieutenant Reeder 
                had   amongst   one   another   -   [the   attorney]   then   informed 
                Mr. Anderson to provide [the] blood sample and [the] urine 
                sample ... . 

                The   record   also   demonstrates   that   Anderson's   attorney   had   little   or   no 

chance to independently research the law on this issue.               These conversations occurred 

on the afternoon of Saturday, December 23, 2006 - that is, on the Saturday afternoon 

of a three-day Christmas weekend - and the attorney was not in his office. 

                It is true that neither Anderson nor his attorney presented testimony to the 

district court concerning the content of their conversation, so we do not know exactly 

what was said during that conversation. However, once it was established that Anderson 

was subjected to an unlawful arrest, it was not Anderson's burden to affirmatively prove 

that his decision to give the body samples was tainted by the preceding illegal arrest. 

Rather, it was the State's burden to affirmatively show that Anderson's decision was not 

tainted by the preceding illegal arrest. 

                Because the State bore the burden of proof, we are not allowed to assume 

the facts most favorable to the State from a silent record.   It was improper for the district 

court    -    and  it  is  improper    for  this  Court    -   to  assume     that  the  content    of  the 

conversation between Anderson and his attorney somehow dissipated the taint of the 

illegal arrest, or somehow made Anderson's decision to surrender the body samples 

voluntary. 

                For    these   reasons,    I  dissent  from    my   colleagues'     decision    to  affirm 

Anderson's   conviction.        The   test   results   from   Anderson's   body   samples   should   be 

suppressed, and Anderson's conviction should be reversed. 

                                                  -  15 -                                            2294
 
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC