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Smith v. Alaska (11/21/97), 948 P 2d 473
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
DOUGLAS LEON SMITH, ) Supreme Court No. S-6613
Petitioner, ) Court of Appeals
) No. A-4054
) Superior Court
STATE OF ALASKA, ) No. 3AN-S90-1097 CR
Respondent. ) O P I N I O N
______________________________) [No. 4909 - November 21, 1997]
Petition for Hearing from the Court of Appeals
of the State of Alaska, on Appeal from the Superior Court of the
State of Alaska, Third Judicial District, Anchorage, Karl S.
Johnstone and Mark C. Rowland, Judges.
Appearances: Walter Share, Seattle, David
Loutrel, Anchorage, for Petitioner. Nancy R. Simel, Assistant
Attorney General, Anchorage, Bruce M. Botelho, Attorney General,
Juneau, for Respondent.
Before: Rabinowitz, Matthews, Compton,
Eastaugh and Fabe, Justices. [Moore, Chief Justice, not
MATTHEWS, Justice, dissenting in part.
EASTAUGH, Justice, concurring in part, dissenting in
In this case we are called upon to decide whether
evidence obtained illegally may be admissible under the "inevitable
discovery"or "independent source"exceptions to the exclusionary
rule. We hold that the "independent source"exception does not
apply, and remand the case for consideration of the "inevitable
discovery"exception, as formulated herein.
II. FACTS AND PROCEEDINGS
Undercover Police Officer Wilbur Hooks made arrangements
to sell a kilogram of cocaine to Edwardo Aragon in an Anchorage
parking lot. [Fn. 1] Aragon inspected the cocaine and stated that
his "money man"would have to see it before the sale could proceed.
When Hooks refused to go to the "money man's"house, Aragon
arranged to have the "money man"join them in the parking lot.
Following a call from Aragon, Douglas Leon Smith arrived
at the parking lot in a truck. Hooks gave Aragon the cocaine, and
Aragon joined Smith in the truck. A short time later, Aragon
returned to Hooks bearing a brown paper bag which contained
When Smith started to leave the parking lot, Anchorage
police officers attempted to arrest him. Following a chase through
city streets, the police captured Smith and recovered the cocaine
from a snow berm on the side of the road down which Smith had fled.
Investigator Linda O'Brien, the officer in charge of the
operation, questioned Smith at the police station in order to
obtain basic booking information. After Smith provided his name
and social security number, he asked if he was entitled to a phone
call. O'Brien told Smith he could make a phone call when he
arrived at the jail. She then asked Smith for his home address.
When Smith asked if he was required to answer, O'Brien replied that
he was, and stated that if he withheld this information she would
ask the magistrate to require him to give his address as a
condition of his release on bail. Smith then provided his address.
After questioning Smith, O'Brien sought to obtain a
search warrant for Smith's residence. During the warrant hearing,
O'Brien told the magistrate that she knew where Smith resided,
because Smith had told her the location. O'Brien also stated that
the residence was located at the address listed on Smith's driver's
license. Based on this testimony, the magistrate issued the
warrant. The police then searched the residence and recovered
records of drug sales, guns, cocaine, drug paraphernalia, and
$100,000 in cash.
At Smith's trial, the State sought to admit the evidence
discovered in the search. Smith moved to suppress that evidence on
the ground that O'Brien violated his right to make a telephone call
immediately following his arrest, by refusing to permit him to make
a telephone call until after he arrived at the jail. Smith also
claimed that the warrant was tainted by the fact that O'Brien told
the magistrate that she had corroborated Smith's statement
revealing his address by referring to Smith's driver's license,
which actually contained a different address.
In response to Smith's motion, O'Brien testified that
initially she had obtained Smith's address from the Anchorage
Police Department following a check on his license plate
information. She testified that when Smith later told her his
address, she remembered that this was the same address which she
previously had obtained. She stated that this information was also
corroborated by the fact that Aragon had given a general location
for Smith's residence. She said she misspoke when she testified
before the magistrate that she had confirmed Smith's address from
his driver's license, and that she had meant to identify Smith's
vehicle license as the source of that information.
The superior court denied Smith's motion to suppress.
The court found that while O'Brien had violated Smith's right to
make a telephone call under AS 12.25.150, O'Brien obtained Smith's
address by checking his license plate number before she questioned
him. The court also found that O'Brien questioned Smith concerning
his name and address only to obtain booking information, rather
than to learn his address so that she could obtain a warrant to
search his residence. [Fn. 2]
Following the denial of his motion, Smith was convicted;
he appealed. The court of appeals held that O'Brien violated
Smith's right to make a phone call, and that any evidence resulting
from this violation, including Smith's statement providing his
address, had to be suppressed unless it fit within the independent
source exception to the exclusionary rule. Smith v. State, Mem.
Op. & J. No. 2641 at 6 (Alaska App., March 10, 1993). The court of
appeals remanded to the superior court for a determination of this
issue. Id. On remand the superior court found that O'Brien had
sufficient evidence from independent, legal sources to determine
Smith's address in the absence of Smith's statement. The court
concluded that the evidence seized during the search of Smith's
home was admissible. The court of appeals affirmed this decision.
Smith v. State, Mem. Op. & J. No. 2956 (Alaska App., July 27,
Smith then petitioned this court for a hearing to review
the decision of the court of appeals. We granted the petition, and
ordered briefing of the following issue: [Fn. 3]
Does the inevitable discovery rule apply
to this case, assuming Officer O'Brien could have readily retrieved
Mr. Smith's address from a vehicle registration check? See State
v. Hazelwood, 866 P.2d 827 (Alaska 1993). If so, should the
inevitable discovery rule be adopted in Alaska? [Fn. 4]
A. The Independent Source Exception Does Not Apply.
The court of appeals held that the independent source
exception to the exclusionary rule applied in this case and thus
suppression was not required.
We first recognized the independent source exception to
the exclusionary rule in Erickson v. State, 507 P.2d 508 (Alaska
1973). Erickson illustrates how the exception is intended to work.
Erickson discussed in the presence of a witness drug sales which he
was about to make. That witness later saw Erickson load a suitcase
with drugs and lock it. The witness took the suitcase to the
police. The police, acting without a warrant, opened the locked
suitcase and discovered the drugs. They then arrested Erickson,
and discovered a small quantity of marijuana on his person. We
held that the opening of the suitcase without a warrant was an
unconstitutional search, and that the drugs found in the suitcase
had to be suppressed under the exclusionary rule. Id. at 516.
However, Erickson's conviction of possession of marijuana was based
on the marijuana found on his person at the time of his arrest.
This conviction was upheld because at the time of the arrest, the
police had sufficient evidence to detain Erickson independent of
the evidence gleaned through the illegal search of the suitcase.
In reaching this conclusion we stated:
It is well settled that the exclusionary rule
renders inadmissible evidence obtained indirectly as a result of an
unlawful search or seizure as well as evidence directly obtained
thereby. [Wong Sun v. United States, 371 U.S. 471 (1963).] The
question for determination is "whether, granting establishment of
the primary illegality, the evidence to which instant objection is
made has been come at by exploitation of that illegality or instead
by means sufficiently distinguishable to be purged of the primary
taint." Id. at 488. Once a causal connection is established
between the proffered evidence and the primary illegality, the
evidence must be excluded unless it falls within the "independent
source,""attenuated connection,"or "inevitable discovery"
Erickson, 507 P.2d at 516 (footnote omitted). We also noted:
The fact that the suitcase was subject to an
illegal search should not taint the evidence of the second search.
Again the test posed by [Wong Sun] was whether the evidence
objected to was obtained by the "exploitation"of the initial
illegality or means "sufficiently distinguishable"to be "purged of
the primary taint." The arrest could have been based on the
"independent source"of the conversations with [the witness]. . . .
[T]here was enough probable cause to arrest defendant before the
search, based on the first hand reports of [the witness]. The fact
that the intervening search of the suitcase was illegal should not
relate back and taint the basis for probable cause existing before
Id. at 519.
We also applied the independent source exception in Cruse
v. State, 584 P.2d 1141 (Alaska 1978). In Cruse, a drive-in
theater was robbed by the occupants of a white Mercury automobile.
A witness wrote down the automobile's license number as it left the
scene and immediately reported the robbery to the police. Shortly
thereafter the Mercury was stopped and its occupants were arrested.
A state trooper opened the trunk in order to inventory its
contents. A city policeman arrived just as the trooper was opening
the trunk and observed a long barreled revolver and a brown paper
bag in the trunk. The city policeman advised the trooper that the
city police would take the car for evidence and closed the trunk
until he could get a warrant. The warrant application did not
mention that the trunk had been opened or a description of its
contents. A warrant was issued and the trunk was then searched,
revealing the proceeds of the robbery. The defendant moved to
suppress the items found in the trunk. His motion was denied in
the superior court. On appeal we affirmed. We assumed arguendo
that the original trunk opening was an illegal search, but held
that because the police had ample independent, lawfully obtained
evidence to obtain a search warrant the items in the trunk did not
have to be suppressed:
We must determine whether the subsequent
search warrant issued as a product of the prior allegedly illegal
trunk search. . . . The controverted evidence here was obtained
through information wholly independent of the initial trunk search.
The evidence presented to the district court in support of the
search warrant was procured without resort to any clue or knowledge
gained from the trunk search. The investigation leading to the
lawful search was not intensified or significantly focused by
reason of any tainted information. Moreover, there was no
exploitation of the alleged misconduct to discover new evidence as
prohibited by [Wong Sun]. The exclusionary rule extends only to
those facts which were actually discovered through a direct process
initiated by the unlawful act. Where the disputed evidence stems
from an independent and lawful source, even though it could have
emerged from the prior unlawful search as well, the evidence is
Cruse, 584 P.2d at 1145 (citations and footnotes omitted).
In the present case the superior court found that, even
though Officer O'Brien violated Smith's rights, Smith's vehicle
registration was an independent source for determining his address.
This information was corroborated by Aragon's statements, and by
the timing of Smith's arrival at the parking lot. The court of
appeals found the superior court's conclusion regarding the
independent source to be supported by the record. Smith v. State,
Mem. Op. & J. No. 2956 at 2-3 (Alaska App., July 27, 1994). We
O'Brien obtained Smith's address from his vehicle
registration, but failed to write it down or remember it. The only
direct source she relied upon for Smith's address was Smith's own
statement, obtained, as we assume, in violation of his rights. It
was this information that was presented to the judicial officer who
issued the warrant. Although there was an independent source
available for Smith's address, O'Brien failed to utilize it. As a
result the warrant was issued solely on information obtained
illegally. The independent source exception requires that the
police know of and act on lawfully obtained independent evidence at
the time they take the challenged action -- here the application
for a warrant. The fact that police could have easily obtained
lawful evidence is insufficient by itself to meet this requirement.
In Cruse we said: "Where the disputed evidence stems from an
independent and lawful source, even though it could have emerged
from the prior unlawful search as well, the evidence is
admissible." Cruse, 584 P.2d at 1145. Here, a nearly opposite
situation exists: the disputed evidence stems from the illegal
conduct, even though it could have been derived from an independent
and lawful source. Accordingly, the independent source exception
is not applicable.
B. The Inevitable Discovery Exception May Apply.
Although we referred to the inevitable discovery
exception in Erickson v. State, 507 P.2d 508 (Alaska 1973), and
applied it in a federal law context in State v. Hazelwood, 866 P.2d
827 (Alaska 1993), we have not previously adopted it as a matter of
state law. We do so in this case. The inevitable discovery
exception was described in Hazelwood, 866 P.2d at 831, 832 as
The doctrine is an exception to the
exclusionary rule in cases where evidence has been obtained in
violation of constitutional protections such as the Fifth Amendment
privilege against self-incrimination. The doctrine is essentially
a variation on the independent source rule, except that the
question is not whether the police actually obtained evidence from
an untainted source, but whether evidence obtained through a
constitutional violation would inevitably have been discovered
through a lawful means.
The Supreme Court noted that the "core
rationale"for the exclusionary rule is "to deter police from
violations of constitutional and statutory protections."[Nix v.
Williams, 467 U.S. 431, 442-43 (1984).] "On this rationale, the
prosecution is not to be put in a better position than it would
have been in if no illegality had transpired." Id. at 443.
However, the rule is not meant to put the prosecution in a position
worse than if no police misconduct occurred. Id. Thus, the
Supreme Court has recognized the inevitable discovery doctrine. If
the prosecution can prove that the challenged evidence "ultimately
or inevitably would have been discovered by lawful means, . . .
then the deterrence rationale has so little basis that the evidence
should be received."
Scholars disagree concerning the advisability of the
inevitable discovery rule. Professor LaFave has summarized the
On the one hand, it is said that it "is a
valuable, logical and constitutional principle,"the continued
application of which will not "emasculate or blunt the force of the
exclusionary rule." So the argument goes, the "inevitable
discovery"test, "if properly administered, serves well the raison
d'etre of the exclusionary rule by denying to the government the
use of evidence 'come at by the exploitation of . . . illegality'
and at the same time minimizes the opportunity for the defendant to
receive an undeserved and socially undesirable bonanza." Others
object that it is "based on conjecture"and "can only encourage
police shortcuts whenever evidence may be more readily obtained by
illegal than by legal means,"and thus "collides with the
fundamental purpose of the exclusionary rule." As one commentator
Such a rule is completely at odds
with the purpose of the exclusionary rule. If the police will only
be deprived of that evidence which the defendant can show they
would not have been able to obtain had they not engaged in the
illegality, they will in no way be deterred from such conduct; all
they will stand to lose is what they would not have otherwise had
and they might gain some advantage if something slips by.
Moreover, the illegal route is often faster and easier than the
legally required route.
5 Wayne R. LaFave, Search & Seizure 11.4(a), at 242 (3d ed. 1996)
(footnotes omitted). However, despite the scholarly debate, many
state courts have adopted some form of the inevitable discovery
exception. [Fn. 5] In our view the inevitable discovery exception
can and should be formulated so that it meets the concerns
expressed in the quoted LaFave excerpt.
To begin with, as to the concern that the exception is
"based on conjecture,"we agree with the Supreme Court of Hawaii
that the prosecution should have the burden of proving by a clear
and convincing standard of proof that the evidence would have been
discovered absent the illegality. State v. Lopez, 896 P.2d 889
(Haw. 1995). The Hawaii court adopted the view taken by Justice
Brennan in the dissent in Nix v. Williams:
In his dissent, Justice Brennan began by
agreeing that "the 'inevitable discovery' exception to the
exclusionary rule is consistent with the requirements of the
Constitution." However, Justice Brennan opined that the majority
overlooked the crucial distinction between the "inevitable
discovery"exception and the "independent source"exception.
When properly applied, the
'independent source' exception allows the prosecution to use
evidence only if it was, in fact, obtained by fully lawful means.
It therefore does no violence to the constitutional protections
that the exclusionary rule is meant to enforce. The 'inevitable
discovery' exception is likewise compatible with the Constitution,
though it differs in one key respect from its next of kin:
specifically, the evidence sought to be introduced at trial has not
actually been obtained from an independent source, but rather would
have been discovered as a matter of course if independent
investigations were allowed to proceed.
Thus, Justice Brennan pointed out that "[t]he
inevitable discovery exception necessarily implicates a
hypothetical finding that differs in kind from the factual finding
that precedes application of the independent source rule." Because
of this distinction, Justice Brennan would have required the
prosecution to satisfy a heightened burden of proof before allowing
evidence to be admitted under the "inevitable discovery"exception
to the exclusionary rule. He explained:
To ensure that this hypothetical
finding is narrowly confined to circumstances that are functionally
equivalent to an independent source, and to protect fully the
fundamental rights served by the exclusionary rule, I would require
clear and convincing evidence before concluding that the government
had met its burden of proof on this issue. Increasing the burden
of proof serves to impress the factfinder with the importance of
the decision and thereby reduces the risk that illegally obtained
evidence will be admitted.
Id. at 906-07 (citations omitted) (emphasis in original).
Also taking the view that proof at least as strong as the
clear and convincing standard is required are the Supreme Courts of
North Carolina, State v. Garner, 417 S.E.2d 502, 506 (N.C. 1992)
(applying clear and convincing standard), and Massachusetts,
Commonwealth v. O'Connor, 546 N.E.2d 336, 339 (Mass. 1989) (holding
that inevitability must be "certain as a practical matter"); see
also R. Bradley Lamberth, The Inevitable Discovery Doctrine:
Procedural Safeguards to Ensure Inevitability, 40 Baylor L. Rev.
129, 145 (1988) (stating that courts should adopt "clear and
convincing"standard to deter police misconduct and diminish chance
of courts admitting tainted evidence). We adopt the same standard
In addition, we perceive a need to safeguard against the
use of the inevitable discovery exception in cases where discovery
by legal means was possible, but not truly inevitable. The
exception should come into play only when the evidence in question
truly would have been discovered through procedures likely to be
employed under the circumstances, rather than through unusual
measures which police would only employ if given the benefit of
hindsight. See LaFave, supra at 247 (warning against
"sophisticated argument aided by hindsight"). Accordingly, in
order to invoke the exception, the prosecution "must establish,
first, that certain proper and predictable investigatory procedures
would have been utilized in the case at bar, and second, that those
procedures would have inevitably resulted in the discovery of the
evidence in question." LaFave, supra at 248 (citation omitted,
emphasis added). We note, however, that "predictable investigatory
procedures"may encompass resourceful investigations which go
beyond mere "standard operating procedures." Such procedures may
also include "a series or chain of standard and routine
investigatory procedures each stage and its results being clear and
predictable,"as well as "saturation investigations"which "leave
no stone unturned." Stephen H. LaCount & Anthony J. Girese, The
"Inevitable Discovery"Rule, an Evolving Exception to the
Constitutional Exclusionary Rule, 40 Albany L. Rev. 483, 494
(1976). Even unusual or unique investigatory techniques may
qualify as "predictable investigatory procedures,"so long as the
need to employ such techniques would have been readily apparent to
the investigator in the absence of any benefits provided by
hindsight. In evaluating whether a particular act qualifies as a
"predictable investigatory procedure,"a trial court must consider
the "experience, ability, and knowledge"of the investigator, as
well as "the quality and value of sources of information . . .
lawfully in his possession." Id. at 496.
Finally, we recognize the potential for the inevitable
discovery exception to encourage police illegality, as noted by
Professor LaFave. LaFave, supra at 244. As he suggests:
Because one purpose of the exclusionary rule
is to deter [unconstitutional] shortcuts . . . the "inevitable
discovery"rule should be applied only when it is clear that "the
police officers have not acted in bad faith to accelerate the
discovery"of the evidence in question.
Id. at 245. This rationale has been adopted by the Supreme Court
of North Dakota. State v. Phelps, 297 N.W.2d 769, 775 (N.D. 1980).
[Fn. 6] We also find this reasoning persuasive. Accordingly, we
believe that the exception should not be available in cases where
the police have intentionally or knowingly violated a suspect's
Taken together, the safeguards outlined above should
ensure that the adoption of the inevitable discovery exception does
not provide an opportunity for the prosecution to benefit from
illegal activity. We conclude that if the prosecution can show, by
clear and convincing evidence, that illegally obtained evidence
would have been discovered through predictable investigative
processes, such evidence need not be suppressed as long as the
police have not knowingly or intentionally violated the rights of
the accused in obtaining that evidence. Accordingly, this case
must be remanded to the court of appeals with directions to remand
it to the superior court for a determination whether facts
necessary for application of the inevitable discovery exception
exist in this case. If such facts exist, Smith's conviction should
stand. If not, the superior court must determine whether the
admission of the challenged evidence was prejudicial. [Fn. 7]
The decision of the court of appeals regarding the
independent source exception to the exclusionary rule is REVERSED.
The case is REMANDED for consideration of the inevitable discovery
exception under the test adopted in this opinion.
MATTHEWS, Justice, dissenting in part.
I agree that we should adopt as a matter of state law the
inevitable discovery exception. Further, I think the prosecution
should have the burden of proving inevitable discovery by clear and
convincing proof, and the exception should not be available in
cases where the police have intentionally or knowingly violated a
My concern is with the additional test imposed by today's
opinion, namely that the evidence must have been discoverable by
"predictable investigatory procedures." In many cases, this test
may be merely surplusage. When the prosecution can show that
evidence would inevitably have been discovered, such a showing will
often necessarily encompass a demonstration that predictable
investigatory procedures would have uncovered the evidence.
However, the court's reference to "a series or chain of standard
and routine investigatory procedures"may assume a standardization
of procedures which does not exist in many police departments in
Alaska. Further, some investigations may not be routine or
standard because of the unique nature of the crime involved.
Nonetheless, even in the absence of standardized procedures and
even in unique investigations it may well be possible to prove
inevitable discovery by clear and convincing evidence.
Finally, requiring discovery through predictable
investigatory procedures may exclude from the coverage of the
exception cases that do not fit the independent source exception
but in which the questioned evidence is actually discovered by
legal means. Assume for example that Officer O'Brien wrote down
Smith's address obtained from the vehicle registration check and
subsequently mislaid the paper on which she wrote this information.
Assume also that she later obtained the address from Smith, as was
done in this case, and used it to obtain the warrant. Finally,
assume that she discovered the missing note soon after the warrant
was issued. Such a case would not fit the independent source
exception for it was the illegally obtained evidence that was used
to obtain the warrant. However, inevitable discovery would be
established by clear and convincing evidence as the evidence was
actually discovered by legal means. Nonetheless, under the
formulation of the inevitable discovery exception propounded by the
court today, the admissibility of that evidence would founder on
the predictable investigatory procedures test.
Similarly, if shortly after the warrant were obtained a
neighbor of Smith's, having observed his arrest, were to call the
police and give them Smith's address, again inevitable discovery of
the address would be established by clear and convincing evidence,
but the discovery would be the product of luck rather than
predictable investigatory procedures. [Fn. 1]
In summary, although the predictable investigatory
procedures test has been suggested by a number of legal
commentators and adopted by the courts of several states, [Fn. 2]
I do not favor its adoption because, in my opinion, it is not
necessary to protect the rights of the accused and it needlessly
narrows the logical scope of the inevitable discovery exception.
EASTAUGH, J., concurring in part and dissenting in part.
Although I agree with the court's discussion of the
independent source exception (Part III.A), and most of its
discussion of the inevitable discovery exception (Part III.B), I
disagree with that portion of its opinion that would require the
prosecution to prove inevitable discovery by clear and convincing
evidence in this case.
The rationale for the clear and convincing standard was
first expressed by Justice Brennan in dissent in Nix v. Williams,
467 U.S. 431 (1984). Imposition of the higher burden of proof is
intended to "ensure that this hypothetical finding [contemplated by
the inevitable discovery doctrine] is narrowly confined to
circumstances that are functionally equivalent to an independent
source, and to protect fully the fundamental rights served by the
exclusionary rule." Id. at 459 (Brennan, J., dissenting) (emphasis
Nix, and the decisions this court cites in support of a
heightened proof standard, involved violation of constitutional
rights. Nix, 467 U.S. at 436; State v. Lopez, 886 P.2d 889, 898,
907 (Haw. 1995) (applying clear and convincing standard in part to
"ensure that the added protection in the Hawai'i Constitution is
not vitiated by a 'bad guess'"); Commonwealth v. O'Connor, 546
N.E.2d 336, 337, 340 (Mass. 1989) ("We think the severity of the
constitutional violation is critical in deciding whether to admit
evidence that it is shown would inevitably have been discovered.").
Here, however, the exclusionary rule is being applied to a
violation of statutory rights conferred by AS 12.25.150. [Fn. 1]
In Zsupnik v. State, 789 P.2d 357 (Alaska 1990), this
court held that the exclusionary rule applies to evidence procured
in violation of AS 12.25.150. However, 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 situation where an officer can calmly reflect on his action
before taking it." Id. at 361. See also Copelin v. State, 659
P.2d 1206 (Alaska 1983), cert. denied, 469 U.S. 1017 (1984). The
exclusionary rule thus deters violation of the statute. However,
the right to a telephone call (especially one to a roommate)
secured by AS 12.25.150 is not in and of itself of constitutional
The rationale supporting the imposition of a clear and
convincing standard of proof is absent where only statutory, non-
fundamental rights have been violated. I would hold that where
only non-constitutional rights are at stake, the prosecution need
prove inevitable discovery by only a preponderance of the evidence.
I also agree with Justice Matthews's view, expressed in
his dissent, that the inevitable discovery exception should not
incorporate a "predictable investigatory procedures"element.
I also write separately to emphasize our rejection of one
of Smith's arguments on appeal.
In his opening brief in this court, Smith argued that the
inevitable discovery doctrine should not apply because, had he not
been unlawfully denied his telephone call, he "could have called
friends or roommates to remove the evidence before police arrived."
In his reply brief, Smith argued that he had ample time to call his
roommate, and that, even if police had been posted outside the
house to prevent destruction of evidence, his roommate inside the
house "could have disposed of evidence before police arrived with
a warrant to enter." This court's prospective rejection of that
argument is contained in a footnote. Op. at 17 n.7.
Several decisions have implicitly recognized that
deliberate efforts to conceal or destroy evidence could prevent its
inevitable discovery. United States v. Roberts, 852 F.2d 671, 676
(2d Cir. 1988); State v. Miller, 709 P.2d 225, 242-43 (Or. 1985).
See also State v. Garner, 621 So. 2d 1203, 1209 (La. App. 1993)
(ruling the evidence inevitably would have been found because the
defendants "did not have a long time to plan disposal"of the
evidence pending a search by warrant).
It bears emphasis that public policy bars any argument by
Smith that, but for the violation of AS 12.25.150(b), he could have
prevented discovery of the evidence by using the telephone to
procure its concealment or destruction. This is especially true
given the non-constitutional rights to which the exclusionary rule
is applied in this case. The trial court, when deciding the
inevitable discovery dispute on remand, may not condone an argument
or admit evidence that Smith would have arranged to have his
roommate destroy or conceal the contraband if such acts of Smith or
his roommate would have constituted new crimes. [Fn. 2]
Smith also argues that he was unable to telephone an
attorney. Public policy precludes any argument or evidence that by
telephoning an attorney Smith could have procured the concealment
or destruction of evidence. Courts must reject speculation that an
attorney would act criminally or unethically in response to such a
telephonic request. Cf. Alaska Rule of Professional Conduct 1.2(d)
(lawyer shall not assist client to engage in conduct the lawyer
knows is criminal).
All facts here set forth are taken from the opinion of the
court of appeals, Smith v. State, Mem. Op. & J. No. 2641 at 2-5
(Alaska App., March 10, 1993). A more detailed factual recitation
may be found there.
The court also accepted O'Brien's claim that she
unintentionally misspoke when she said that she had learned Smith's
address from his driver's license.
We accept as a premise of our analysis in this case the legal
conclusions of the superior court and the court of appeals that
O'Brien violated Smith's rights under AS 12.25.150 by denying Smith
a phone call, and that ordinarily a violation of the AS 12.25.150
right invokes the exclusionary rule under which evidence resulting
from a violation cannot be used in the trial of the accused. See
Zsupnik v. State, 789 P.2d 357, 361-63 (Alaska 1990).
Smith questions this court's decision to address the
inevitable discovery rule, since it was not raised by the State in
the proceeding below. However, Alaska Appellate Rule 304 grants
this court broad discretion in determining what issues will be
reviewed. The circumstances of this case suggest that the
inevitable discovery rule, if adopted in this jurisdiction, would
apply to this case. Furthermore, the order granting review
directed the parties to brief this issue. Smith has not been
See Jones v. State, 615 So. 2d 1293, 1295 (Ala. Crim. App.
1993); State v. Acosta, 801 P.2d 489, 493 (Ariz. App. 1990);
Brunson v. State, 753 S.W.2d 859, 861 (Ark. 1988); Green v.
Superior Ct., 707 P.2d 248, 254 (Cal. 1985), cert. denied, 475 U.S.
1087 (1986); People v. Breidnbach, 875 P.2d 879, 889 (Colo. 1994);
State v. Vargas, 642 A.2d 47, 50 (Conn. App. 1994); Cook v. State,
374 A.2d 264 (Del. Supr. Ct. 1977); Hilliard v. State, 638 A.2d
698, 707 (D.C. App. 1994); Maulden v. State, 617 So. 2d 298, 301
(Fla. 1993); Barnett v. State, 420 S.E.2d 43, 47 (Ga. App. 1992);
State v. Lopez, 896 P.2d 889, 907 (Haw. 1995); State v. Cook, 677
P.2d 522, 529 (Idaho App. 1984); People v. Alvarado, 644 N.E.2d 783
(Ill. App. 1994); State v. Jorgensen, 526 N.E.2d 1004, 1008 (Ind.
App. 1988); State v. Williams, 285 N.W.2d 248, 258 (Iowa 1979),
cert. denied, 446 U.S. 921 (1980); State v. Waddell, 784 P.2d 381,
387 (Kan. App. 1989); Commonwealth v. Elliott, 714 S.W.2d 494 (Ky.
App. 1986); State v. Melbert, 649 So. 2d 740, 744 (La. Ct. App.
1994); State v. Storer, 583 A.2d 1016, 1019-20 (Me. 1990); Oken v.
State, 612 A.2d 258, 271 (Md. App. 1992), cert. denied, 113 S. Ct.
1312 (1993); Commonwealth v. O'Connor, 546 N.E.2d 336 (Mass. 1989);
People v. Thomas, 478 N.W.2d 712 (Mich. App. 1991); Geer v. State,
406 N.W.2d 34 (Minn. App. 1987); State v. Butler, 676 S.W.2d 809
(Mo. 1984); State v. Allies, 606 P.2d 1043 (Mont. 1979); State v.
Houser, 490 N.W.2d 168 (Neb. 1992); Carlisle v. State, 642 P.2d 596
(Nev. 1982); State v. Beede, 406 A.2d 125 (N.H. 1979), cert. denied,
445 U.S. 967 (1980); State v. Boswell, 804 P.2d 1059 (N.M.
1991); People v. Fitzpatrick, 300 N.E.2d 139 (N.Y. 1973), cert. denied,
414 U.S. 1033 (1973); State v. Garner, 417 S.E.2d 502, 507
(N.C. 1992); State v. Johnson, 531 N.W.2d 275 (N.D. 1995); State v.
Kinley, 651 N.E.2d 419 (Ohio 1995), cert. denied, 116 S. Ct. 1324
(1996); McGregor v. State, 885 P.2d 1366 (Ok. Crim. App. 1994),
cert. denied, 116 S. Ct. 95 (1995); State v. Miller, 709 P.2d 225
(Or. 1985), cert. denied, 475 U.S. 1141 (1986); Commonwealth v.
Rudisill, 622 A.2d 397 (Pa. Super. 1993); State v. Trepanier, 600
A.2d 1311 (R.I. 1991); Satter v. Solem, 458 N.W.2d 762 (S.D. 1990),
cert. denied, Rist v. Satter, 490 U.S. 1091 (1989); State v. Coury,
657 S.W.2d 777 (Tenn. Crim. App. 1983); Oliver v. State, 711 S.W.2d
442 (Tex. App. 1986); State v. Palmer, 803 P.2d 1249 (Utah App.
1990), cert. denied, 815 P.2d 241 (Utah 1991); Walls v.
Commonwealth, 347 S.E.2d 175 (Va. App. 1986); State v. White, 888
P.2d 169 (Wash. App. 1995); State v. Hawkins, 280 S.E.2d 222
(W.Va. 1981), cert. denied, 455 U.S. 925 (1982); State v. Kennedy,
396 N.W.2d 765 (Wisc. App. 1986); Wilson v. State, 874 P.2d 215,
225 (Wyo. 1994).
Smith argues that the explicit right to privacy granted by
article I, section 22 of Alaska's Constitution should prohibit the
application of the inevitable discovery doctrine, especially where
the illegal search is of the defendant's home. See State v. Ault,
724 P.2d 545, 551-52 (Ariz. 1986). However the exclusionary rule
should not be applied so as to place the prosecution in a position
worse than if no police misconduct had occurred. Hazelwood, 866
P.2d at 831. Excluding evidence that, by its very definition,
would inevitably have been discovered, would clearly put the
prosecution at a greater disadvantage than if there had been no
Smith argues that any error is prejudicial. The State claims
that any error was harmless, in light of the fact that a quantity
of cocaine was recovered from the side of the road near the
location where Smith was apprehended. We express no opinion on
this matter, but leave this issue for resolution below if the case
We note in passing that Smith has no right to violate the
law by causing the destruction of evidence discovered in the search
of his home. As a matter of public policy, a violation of a
suspect's rights which has the sole effect of denying that suspect
the opportunity to take an illegal action is harmless.
Accordingly, Smith cannot claim that he was prejudiced by the
denial of the opportunity to destroy evidence. On remand, Smith
must confine himself to arguments concerning the potential for
discovery of the evidence, in the absence of any illegal conduct by
himself or others acting on his behalf. A number of other courts,
in construing the federal constitution, have suggested that
discovery inevitability may be refuted by the possibility of
destruction or concealment of evidence by or on behalf of a
defendant. United States v. Cabassa, 62 F.3d 470, 473-74 (2d Cir.
1995); United States v. Roberts, 852 F.2d 671, 676 (2d Cir. 1988);
United States v. Boatwright, 822 F.2d 862, 865 (9th Cir. 1987);
United States v. Owens, 782 F.2d 146, 153 (10th Cir. 1986); State
v. Miller, 709 P.2d 225, 243 (Or. 1985). Because these authorities
concern constitutional violations, we are not persuaded that we
should apply them in the context of a violation of an Alaska
statute. We need not decide in this case whether violation of a
federal or state constitutional provision would require a different
FOOTNOTES (Matthews Dissent)
The Nebraska Supreme Court was confronted with a similar situation in State v.
Andersen, 440 N.W.2d 203 (Neb. 1989). The defendant's house was illegally searched and
the police seized an address book containing the names of persons who, it would turn out, led
the police to B.T., who had been sexually abused by the defendant. Id. at 212. Previously,
a concerned neighbor had given the name of B.T. to other police officers conducting an
independent investigation. Id. at 213. Although it was the evidence in the illegally seized
address book that was used to locate B.T. -- thus precluding the application of the
independent source rule -- B.T. was allowed to testify under the inevitable discovery doctrine.
This conclusion was reached, in part, because B.T.'s name had already been discovered by
legal, though serendipitous, means. Id. at 214.
E.g., Clark v. State, 555 So. 2d 823 (Ala. Crim. App. 1989); State v. Cook, 677 P.2d
522 (Idaho App. 1984); Oken v. State, 612 A.2d 258 (Md. 1992); State v. Sugar, 495 A.2d
90 (N.J. 1985); State v. Barnum, 902 P.2d 95 (Or. App. 1995); State v. Richman, 933 P.2d
1088 (Wash. App. 1997).
FOOTNOTES (Eastaugh Concur/Dissent)
Although Smith argues in his brief that his statement was obtained in violation of his
Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436 (1966), the superior court
and court of appeals held only that Smith's statutory rights were violated. Smith v. State,
Mem. Op. & J. No. 2641 at 2-6 (Alaska App., March 10, 1993). The court does not appear
to hold otherwise.
See AS 11.56.610 (tampering with physical evidence); AS 11.56.770 (hindering
prosecution in the first degree); AS 11.71.040 (misconduct involving a controlled substance
in the fourth degree); AS 11.71.050 (misconduct involving a controlled substance in the fifth
degree); AS 11.16.110 (accountability for causing another to engage in proscribed conduct);
AS 11.31.110 (soliciting criminal conduct by another).
In the Supreme Court of the State of Alaska
Douglas Leon Smith, )
) Supreme Court No. S-06613
v. ) Order
) Petition for Rehearing
State of Alaska, )
Appellee. )Date of Order: 11/21/97
Court of Appeals # A-4054
Trial Court Case # 3AN-90-01097CR
Before: Matthews, Chief Justice, Compton, Eastaugh and Fabe, Justices, Rabinowitz,
Senior Justice, Pro Tem* [Bryner, Justice, not participating].
On consideration of the Petitioner's Petition for Rehearing, filed on August 8, 1997, and the
response filed on September 22, 1997,
it is ordered:
1. The Petition for Rehearing is granted for the limited purpose of adding clarifying
language to footnote 7 on page 17. In all other respects, the petition for rehearing is denied.
2. Opinion No. 4859, issued August 1, 1997, is withdrawn.
3. Opinion No. 4909, is issued on this date in its place.
Entered by direction of the Court.
Clerk of the Appellate Courts
Cheryl Jones, Deputy Clerk
*Sitting by assignment under article IV, section 11 of the Alaska Constitution and Administrative
Supreme Court Order
S-6613, Smith v State
cc: Supreme Court Justices
Trial Court Appeals Clerk
David B. Loutrel
8410 East 32nd Avenue
Anchorage AK 99504
7414 Orin Court North
Seattle WA 98103
Nancy R. Simel
310 K Street #308
Anchorage AK 99501