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Brown v. State (4/18/2008) ap-2157

Brown v. State (4/18/2008) ap-2157

     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

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878

) Court of Appeals No. A-9529
Appellant, ) Trial Court No. 4FA-04-4084 Cr
v. )
) O P I N I O N
Appellee. ) No. 2157 April 18, 2008
          Appeal  from the Superior Court, Fourth  Judi
          cial   District,   Fairbanks,   Douglas    L.
          Blankenship and Charles R. Pengilly, Judges.

          Appearances:   Sharon Barr, Assistant  Public
          Defender,   and   Quinlan   Steiner,   Public
          Defender,   Anchorage,  for  the   Appellant.
          Kenneth  M.  Rosenstein,  Assistant  Attorney
          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 Stewart, Judges.

          MANNHEIMER, Judge.
          COATS, Chief Judge, concurring.

          The defendant in this case, Susan S. Brown, was stopped
by  a  state  trooper  for  a  traffic  infraction  (insufficient
illumination of her rear license plate).  However, Brown was  not
informed of the reason for the stop.  The trooper asked Brown  to
produce her drivers license, and then he took the drivers license
back  to  his patrol car to see if the license was valid  and  if
there  were  any outstanding warrants for Browns  arrest.   After
assuring  himself that Brown was validly licensed and that  there
were  no  warrants for her arrest, the trooper decided to  simply
issue  a warning to Brown.   The trooper then returned to  Browns
          But rather than explaining the reason for the stop, and
announcing  his  decision to let Brown off with  a  warning,  the
trooper  instead asked Brown for permission to search her  person
and  her  vehicle for weapons and drugs.  Brown gave  permission,
the  search was conducted, and the trooper found a crack  cocaine
pipe in the lining of Browns coat.
          In  this  appeal, Brown concedes that she was  properly
stopped  for  the traffic infraction.  However, she asserts  that
the circumstances surrounding her encounter with the trooper were
implicitly  coercive,  and that her consent  to  the  search  was
therefore not valid.
          The United States Supreme Court has declared that, even
when  a  traffic  stop  is supported by probable  cause,  routine
traffic stops should be viewed as a species of investigative stop
rather than a formal arrest.  Berkemer v. McCarty, 468 U.S.  420,
440-41  &  n.  29; 104 S.Ct. 3138, 3150 & n. 29; 82  L.Ed.2d  317
(1984).   For  this  reason, traffic stops are  governed  by  the
principles  expounded in Terry v. Ohio1 limiting  the  scope  and
duration of investigative stops.  Id.
          (See Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484,  142
L.Ed.2d 492 (1998), where the Supreme Court held that, even  when
an  officer might lawfully subject a motorist to a full custodial
arrest  for  a  traffic  offense, the officer  can  not  lawfully
conduct  the kinds of searches incident to arrest that  would  be
authorized under the Fourth Amendment unless the officer actually
performs a full custodial arrest.  If the officer instead decides
to conduct a routine traffic stop, then the officers authority to
search  is  limited by the rule of Terry v. Ohio.   Knowles,  525
U.S. at 114, 118-19; 119 S.Ct. at 486, 488.)
          Applying  the principles of Terry, a traffic stop  must
be  temporary  and  [must] last no longer than  is  necessary  to
effectuate the purpose of the stop.  Florida v. Royer,  460  U.S.
491,  500;  103  S.Ct.  1319,  1325-26;  75  L.Ed.2d  229  (1983)
(plurality opinion).  Moreover, a police officers conduct  during
the stop must be reasonably related in scope to the circumstances
that  justified  the stop in the first place.  United  States  v.
Brignoni-Ponce,  422  U.S. 873, 881;  95  S.Ct.  2574,  2580;  45
L.Ed.2d  607 (1975) (quoting Terry, 392 U.S. at 29, 88  S.Ct.  at
1884).   The stop becomes unreasonable  and thus constitutionally
invalid   if  the duration, manner, or scope of the investigation
exceeds  these boundaries.  Royer, 460 U.S. at 500, 103 S.Ct.  at
          But  federal  and  state courts have reached  different
conclusions regarding how these principles apply when an  officer
asks  a  motorists permission to conduct a search for  controlled
substances or other contraband during a traffic stop.
          As  we  explain in more detail below, many courts  have
reasoned that the mere asking of questions  even a question  such
as,  May I search you and your vehicle for drugs?  does not alter
the  duration or scope of the intrusion upon a motorists  freedom
          and privacy that normally accompanies a traffic stop.  According
to these courts, even when there is no reason to suspect that the
motorist  is  carrying drugs, it is nevertheless proper  for  the
officer to question the motorist about drugs, and to request  the
motorists  permission to conduct a drug search, so  long  as  the
officers questioning does not extend the duration of the  traffic
stop  beyond  what would normally be required to investigate  and
respond to the observed traffic infraction.
          Moreover, when these courts assess the validity of  the
motorists  ensuing  consent,  they employ  the  totality  of  the
[objective]  circumstances  test  enunciated  in  Schneckloth  v.
Bustamonte,  412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854  (1973),
and  Ohio  v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 136  L.Ed.2d
347   (1996).    This   means  that,  absent  specific   coercive
circumstances  beyond those that normally attend a traffic  stop,
the motorists ensuing consent to search will be deemed voluntary.
          Other  courts,  still working within the  framework  of
federal law,  have tried to clarify the application of the  Terry
principles  to traffic stops by placing more specific limitations
on  a  police officers authority to request permission to search.
For  example, the Tenth Circuit follows the bright-line rule that
forbids  officers  from requesting consent to  search  until  the
officer has returned the motorists license and registration (thus
impliedly alerting the motorist that the stop is nearing an  end,
and  that  the motorist will soon be free to go).2  In a  similar
vein, the Ohio Supreme Court attempted to regulate these requests
by  requiring the officer to first expressly advise the  motorist
that they would be free to go even if they did not consent to the
search.3  However, on petition for writ of certiorari, the United
States  Supreme  Court  held that the Fourth  Amendment  did  not
require this type of advisement.4
          Finally,  some state courts have turned  to  their  own
state   law  to  regulate  these  situations   either  forbidding
outright  any  request for permission to search unless  there  is
reasonable  suspicion to support the request, or else restricting
the  circumstances  in which such requests can  be  made  without
reasonable suspicion.
          For  the reasons explained in this opinion, we join the
state  courts  that  have decided that their state  constitutions
require   greater  restrictions  on  police  authority  in   this
situation  than the restrictions imposed by the Fourth  Amendment
to the United States Constitution.
          We reject the notion that, as long as a police officers
questions  do  not  extend the expected temporal  duration  of  a
traffic stop, the legal nature of the stop remains unaltered even
when an officer questions a motorist about other potential crimes
and  seeks permission to search the motorist and/or the  vehicle.
As  shown by the facts of the present case, and as shown  by  the
experiences of other states, motorists who have been stopped  for
traffic  infractions do not act from a position of  psychological
independence when they decide how to respond to a police officers
request  for  a  search.  Because of the psychological  pressures
inherent  in  the  stop,  and  often  because  of  the  motorists
ignorance of their rights, large numbers of motorists  guilty and
innocent alike  accede to these requests.
          Moreover,  because traffic regulations are so  numerous
and  detailed, most motorists will violate these regulations from
time  to  time.  In the present case, for instance, the defendant
was stopped because the light illuminating her rear license plate
was dirty.
          Because  the  violation of traffic  regulations  is  so
frequent,  and  because  motorists who are  stopped  for  traffic
infractions  often  accede  to  a  police  officers  request  for
permission  to  search,  the  Fourth  Amendment  rules  governing
traffic  stops  create  the potential risk that  law  enforcement
officers  will  compromise the privacy of many  citizens.   These
Fourth  Amendment rules potentially allow Alaska law  enforcement
officers  to search dozens, and perhaps hundreds, of  people  and
vehicles  each day even though the officers lack any  grounds  to
justify these searches.
          For these reasons, we hold that the Alaska Constitution
imposes  greater restrictions on a police officers  authority  to
request  a  motorists permission to conduct  a  search  during  a
routine  traffic  stop.  We conclude that an  officers  questions
about  other  potential  crimes, and  an  officers  requests  for
permission to conduct a search, are significant events under  the
search  and seizure provision of the Alaska Constitution, Article
I,  Section 14.  More specifically, we conclude that,  under  the
circumstances presented in this case, the officer conducting  the
traffic stop was prohibited from requesting Browns permission  to
conduct a search that was (1) unrelated to the basis for the stop
and  (2)  not  otherwise supported by a reasonable  suspicion  of

     The facts of the traffic stop in this case
               At  about  3:00  a.m. on November  24,  2004,
     State  Trooper  Maurizio Salinas  stopped  the  vehicle
     driven  by Susan S. Brown because the trooper  observed
     that  the  vehicles rear license plate was not properly
     illuminated.5  Traffic at that time of the morning  was
     sparse;  in  fact, Salinass vehicle and Browns  vehicle
     were the only cars on the road.
               Salinas  informed Brown who he  was,  and  he
     asked  Brown for her drivers license.  However, Salinas
     did not tell Brown why he had stopped her.
               Salinas  then asked Brown if she was carrying
     any  weapons or drugs in her car.  Brown responded that
     she did not have any such items in her car.
          Carrying  Browns  drivers  license,   Salinas
walked  back to his patrol car.  He ran a check on  the
validity of Browns drivers license, and he also checked
to  see if there were any outstanding warrants for  her
arrest.   These checks showed that Brown  was  properly
licensed  and  that  there were  no  warrants  for  her
          Having   performed  these   checks,   Salinas
decided  that  he  would simply give  Brown  a  warning
rather  than  issuing her a citation for  the  license-
plate-illumination violation (of which Brown was  still
          assumedly ignorant).
          Salinas walked back to Browns vehicle, but he
still did not inform her of his reason for stopping her
car,  or of his decision to let her off with a warning.
(Indeed,  it  is  not apparent, from either  the  audio
recording  of the encounter or Salinass later testimony
at  the evidentiary hearing, that Salinas handed Browns
drivers  license back to her.)  Instead, Salinas  asked
Brown  where  she was headed, and then he  again  asked
Brown  if  she  had any weapons or drugs.   When  Brown
again   denied  possessing  either  weapons  or  drugs,
Salinas  asked her if she would mind if he performed  a
search for these items. Brown consented to this search.
          Salinas  directed Brown to step  out  of  her
vehicle,  and  then  he conducted a  search  of  Browns
person.   Inside  the  lining of Browns  coat,  Salinas
found  a crack pipe.  Salinas then arrested Brown  and,
incident  to  this  arrest, he  searched  Browns  purse
(which  was sitting on the passenger seat of her  car).
Inside  the purse, Salinas found cocaine in a cigarette
          The  entire  duration of  Salinass  encounter
with  Brown, from the time he stopped her  car  to  the
time she consented to the search, was less than two and
a  half  minutes.   (Of  course, the  encounter  became
longer after Brown consented to be searched.)
          During  the  court proceedings in this  case,
Salinas  testified that he worked traffic  patrol  from
11:00  p.m. to 7:00 a.m., and that it was his  practice
to  try  to  conduct a few consent searches each  night
during  traffic  stops.  In other words,  when  Salinas
conducted traffic stops, he would randomly ask  drivers
for permission to search for drugs and/or weapons.
          When  Salinas  asked Brown for permission  to
conduct  the  search  in  this  case,  he  was   simply
following  this practice of randomly seeking permission
to  search.  Salinas had no grounds for suspecting that
Brown was carrying drugs on her person or in her car.
          Brown  asked  the superior court to  suppress
the  fruits  of  the two searches (the  search  of  her
person  and  the  search  of  her  purse).   After  the
superior  court upheld these searches,  Brown  and  the
State reached a plea agreement under Cooksey v. State:6
     Brown   pleaded   no  contest   to   fourth-degree
controlled   substance   misconduct   (possession    of
cocaine), upon the understanding that she would be able
to appeal the superior courts ruling on her suppression

The States position in this appeal

          The State acknowledges that traffic stops are
governed  by the same Terry principles that  limit  the
duration  and scope of investigative stops.   That  is,
the State acknowledges that a traffic stop may last  no
          longer than necessary to accomplish its purpose and
must   be  conducted  by  the  least  intrusive   means
[available] to accomplish its purpose.
          Based on these principles, the State contends
that  the underlying issue in this case is not  whether
Trooper Salinass questions about drugs, and his request
for  permission to conduct a drug search, were  related
to the reason for the traffic stop.  Instead, the State
argues, the issue is whether Salinass questions and his
request for permission to conduct a search unreasonably
extended the stop.  The State contends that the  answer
to this question is no for three reasons.
          First,  according to the State,  the  traffic
stop  had  not  yet  ended  for  although  Salinas  had
completed  his  investigation concerning  the  unlawful
dimness  of  Browns license plate light,  and  although
Salinas  had verified that Brown was properly  licensed
and  did  not have any warrants for her arrest, Salinas
had not yet informed Brown of the reason he had stopped
her,  nor  had  Salinas issued either a citation  or  a
warning to Brown.
          Second,  according  to  the  State,  Salinass
decision  to  seek Browns permission for a drug  search
did  not  unreasonably extend the temporal duration  of
the  stop.   Obviously, any question that  the  trooper
asked  would extend the duration of the stop by  a  few
seconds; here, for instance, the record indicates  that
Salinass   question   and  Browns   response   consumed
approximately  twelve seconds.  But the  State  asserts
that the test under Fourth Amendment law is whether the
troopers questions extended the duration of the traffic
stop to an unreasonable degree  and there are plenty of
federal  and state cases to support the States position
that  a brief extension of a traffic stop does not make
the  stop unreasonable, so long as the total length  of
the  stop does not exceed the amount of time reasonably
needed to accomplish its purpose.7
          Third,   the  State  contends  that  Salinass
questions  to  Brown about drugs, and his requests  for
permission  to  conduct a search, did not significantly
alter the scope or intensity of the traffic stop.   The
State relies on cases such as Muehler v. Mena, 544 U.S.
93,  100-01;  125  S.Ct. 1465, 1472;  161  L.Ed.2d  299
(2005), and United States v. Childs, 277 F.3d 947,  949
(7th  Cir.  2002)  (en banc), for the proposition  that
questions  [by  themselves] are  neither  searches  nor
seizures8  and that, for this reason, a police officers
act  of  engaging  a motorist in brief  questioning  on
other  subjects and requesting permission to conduct  a
search  does  not alter the reasonableness  (i.e.,  the
lawfulness) of a traffic stop.9
          Under  the  States analysis (i.e., under  the
assumption  that the troopers questions  about  weapons
and  drugs,  and his request for permission to  search,
did  not unlawfully alter the scope or duration of  the
          traffic stop), the final question is whether Browns
consent to the search was voluntary.
          Under the Fourth Amendment, the voluntariness
of  a  persons consent to search is assessed using  the
totality   of   the   [objective]  circumstances   test
enunciated in Schneckloth v. Bustamonte, 412 U.S.  218,
93  S.Ct.  2041,  36  L.Ed.2d 854 (1973).   The  Alaska
Supreme Court adopted this test in Frink v. State,  597
P.2d 154, 167 (Alaska 1979).
          In  the  present  case, when Trooper  Salinas
requested  permission to perform a drug  search,  Brown
had  not been told the reason for the traffic stop, nor
had  she been informed of Salinass decision to let  her
go  with  a  warning.  Indeed, it is not clear  if  the
trooper had even returned Browns drivers license.   The
State    nevertheless   maintains   that   the   record
demonstrates Browns voluntary consent to the search.
          The  State  notes  that the entire  encounter
between  Salinas  and Brown was quite short,  and  that
Salinas  was cordial and polite throughout.  The  State
further notes that, in Frink, the Alaska Supreme  Court
held that a persons consent to search can be valid even
though  the  police do not inform the person  of  their
right to refuse consent.  Finally, the State notes that
in  Robinette, 519 U.S. at 39-40; 117 S.Ct. at 421, the
United  States  Supreme  Court ruled  that  a  motorist
temporarily  detained for a traffic  stop  can  validly
consent to a search even though the police never inform
the  motorist that they will be free to leave  even  if
they refuse to consent.
          For  all of these reasons, the State contends
that  the  traffic  stop  was lawful  and  that  Browns
consent to search was voluntary.
          The  States  position is eminently defensible
under  federal law.  But for the reasons  explained  in
the  next  section  of this opinion, we  conclude  that
federal  law  does not afford sufficient protection  to
motorists who are asked to consent to a search of their
person,  their  vehicle, or their belongings  during  a
traffic stop.

Why  we  conclude that federal law does not  adequately
protect motorists

          In  times past, a routine traffic stop for an
equipment  violation (such as the  one  in  this  case)
would  normally include an investigation of the vehicle
and/or  questioning of the motorist to verify that  the
suspected  equipment  violation in  fact  existed.   It
would   also  generally  include  a  request  for   the
motorists drivers license, registration, and  proof  of
insurance;  a  computer or radio check  to  verify  the
validity  of  these documents; and the issuance  of  an
appropriate  citation  or warning.   Wayne  R.  LaFave,
Search and Seizure:  A Treatise on the Fourth Amendment
(4th  ed. 2004),  9.3(c), Vol. 4, p. 378.  To this list
of  routine  investigative measures might  be  added  a
computer  or  radio check for outstanding warrants  for
the  arrest of the motorist, as long as this check  was
done  expeditiously, so as not to significantly  extend
the duration of the stop.  Id. at pp. 381-82.
          Questions  concerning the  drivers  potential
possession  of  drugs, or requests  for  permission  to
search  either  the drivers person or the  vehicle  for
drugs,  were  not  traditionally part of  an  equipment
violation  traffic stop.  But as part  of  the  war  on
drugs,  police officers have been encouraged to include
such  questions and requests as a routine component  of
traffic stops.  As Professor LaFave explains,
          In recent years[,] more Fourth Amendment
     battles   have   been  fought  about   police
     activities incident to [investigative  stops]
     for a traffic infraction, what courts call  a
     routine  traffic  stop,  than  in  any  other
     context.  There is a reason why this  is  so,
     and  it  is  not  that police have  taken  an
     intense  interest in such matters as  burned-
     out  taillights and unsignaled  lane  changes
     per  se.  Rather, the renewed interest of the
     police in traffic enforcement is attributable
     to  a  federally-sponsored initiative related
     to the war on drugs.
     LaFave,  9.3, Vol. 4, pp. 358-59 (emphasis in
     the original) (footnotes omitted).
               Professor  LaFaves  observation  is
     confirmed  by  the testimony in  the  present
     case.   Trooper Salinas testified that, every
     night  he  was  on traffic patrol,  he  would
     randomly  ask motorists if they were carrying
     weapons  or drugs, and if they would  consent
     to a search.
          Cases  from other states show  that
this  police  practice  is  not  an  isolated
phenomenon.  See State v. Ready,  565  N.W.2d
728,  731  (Neb. 1997) (an officer  testified
that  he  routinely asked for  a  consent  to
search  when he made a traffic stop);  United
States  v. Lattimore, 87 F.3d 647,  649  (4th
Cir.   1996)  (an  officer  stated  that   he
requests  and  obtains permission  to  search
97  percent of the cars [he] stop[s]);  State
v.  Retherford, 639 N.E.2d 498, 502-03  (Ohio
App.  1994)  (an  officer testified  that  he
requested to search 786 vehicles involved  in
traffic  stops  in a single  year;  the  Ohio
court,   extrapolating  from  this   officers
testimony,   expressed   concern   over   the
staggering numbers of Ohio citizens who  must
be affected by this police practice.)
          As   LaFave  summarizes,  [c]onsent
searches are no longer an occasional event in
which people who are actively suspected of  a
crime   may  advise  the  police   of   their
willingness to submit to a search.   Instead,
consent searches are now a wholesale activity
accompanying  a  great  many  traffic  stops.
LaFave,  9.3(e), Vol. 4, p. 397.
          These   searches   result   in    a
substantial    interruption   of    motorists
travels.   Because drugs are easily concealed
in crevices, behind paneling, and under seats
and  carpeting, a search for drugs can  be  a
painstaking business.  Motorists  often  wait
by  the  roadside [while] their vehicles  are
ransacked   a  process that  typically  takes
twenty  to forty minutes.  Id. at  p.  397  &
n. 214.
          In all but exceptional cases, these
consent  searches are held to be valid  under
the  Fourth  Amendment.  The federal  law  in
this area is premised on the assumption that,
all  things being equal, a motorist who  does
not  wish  to  be subjected to a search  will
refuse   consent  when  the   officer   seeks
permission   to   conduct  a   search.    But
experience has shown that this assumption  is
          Studies   reveal  that   the   vast
majority  of  motorists who are subjected  to
this  type  of  request will  accede  to  the
officer  and allow the search.  As  Professor
LaFave  notes,  [G]uilty  or  innocent,  most
motorists  [who  are] stopped  and  asked  by
[the]  police  for consent  to  search  their
vehicles  will  expressly give permission  to
search.  Id. at p. 395.
          One  study showed that consent  was
given  90 percent of the time.  See Illya  D.
Lichtenberg,  Voluntary Consent or  Obedience
to Authority:  An Inquiry Into the Consensual
Police-Citizen  Encounter  (1999),  cited  in
LaFave,   9.3(e), Vol. 4, p. 395,  n.  200.10
In State v. Carty, 790 A.2d 903, 910-11 (N.J.
2002),  the  New Jersey  Supreme Court  cited
empirical studies showing that 95 percent  of
motorists consented to searches  and that  80
percent  of these motorists were innocent  of
any   wrongdoing  (other  than  the   traffic
infraction that led to the stop).
          The  result is that thousands  upon
thousands   of  motor  vehicle  searches   of
innocent travelers [are conducted] each year.
LaFave,   9.3(e), Vol. 4, p. 395  &  n.  201,
          citing Robert H. Whorf, Consent Searches
Following   Routine   Traffic   Stops:    The
Troubled  Jurisprudence  of  a  Doomed   Drug
Interdiction  Technique,  28  Ohio   Northern
Univ. L. Rev. 1, 2 (2001).  As the Ohio Court
of Appeals noted in Retherford, 639 N.E.2d at
503,  these  motorists  are  being  routinely
delayed   in  their  travels  and  asked   to
relinquish  ...  their right  to  privacy  in
their automobiles and luggage[.]
          How   are   we   to   explain   the
willingness  of  thousands  of  motorists  to
agree  to searches of their persons and their
vehicles  at the request of a police officer?
One   explanation  was  offered  by   Justice
Stevens   in   his  dissenting   opinion   in

Most people believe that they are validly  in
a  police  officers custody as  long  as  the
officer  continues to interrogate them.   The
police officer retains the upper hand and the
accouterments of authority.  That the officer
lacks  legal  license to continue  to  detain
them  is  unknown  to most  citizens,  and  a
reasonable person would not feel free to walk
away [while] the officer continues to address

519 U.S. at 47, 117 S.Ct. at 425 (quoting the
Ohio Supreme Court in State v. Robinette, 653
N.E.2d 695, 698 (Ohio 1995)).
          This helps to explain the seemingly
inexplicable behavior of those motorists  who
agree  to a search of their persons or  their
vehicles   when  they  know  that  they   are
carrying drugs.  But it also helps to explain
why  innocent  motorists   who  comprise  the
great  majority of those searched  also agree
to  have  their persons and/or their vehicles
searched,  even  though this  will  entail  a
delay of twenty to forty minutes.  As Justice
Stevens noted in his dissent,

     [I]t   is  fair  to  presume  that  most
drivers  who have been stopped for [a traffic
infraction]  are in a hurry to get  to  their
destinations; such drivers have  no  interest
in  prolonging  the delay occasioned  by  the
stop just to engage in idle conversation with
an  officer, much less to allow a potentially
lengthy search.  I also assume that motorists
even  those  who are not carrying  contraband
have an interest in preserving the privacy of
their  vehicles  and  possessions  from   the
prying eyes of a curious stranger.  The  fact
that  [the]  officer [in  a  companion  case]
successfully used [this] method of  obtaining
consent  to search roughly 786 [vehicles]  in
one year, State v. Retherford, ... 639 N.E.2d
498,  502 ([Ohio App.] 1994), indicates  that
motorists generally respond in a manner  that
is contrary to their self-interest.  Repeated
decisions  by ordinary citizens to  surrender
that   interest   cannot  satisfactorily   be
explained  on  any hypothesis other  than  an
assumption  that  they believed  they  had  a
legal duty to do so.

Robinette,  519 U.S. at 47-48, 117  S.Ct.  at
425 (footnote omitted).
          A second reason why motorists might
agree  to  be  searched is  that,  even  when
motorists  know their constitutional  rights,
they still have a strong interest in catering
to  the  officers  wishes until  the  officer
announces their decision whether to  issue  a
citation  or  only  a warning.   As  the  New
Jersey Supreme Court noted in Carty, 790 A.2d
at 908, it is virtually impossible to drive a
motor   vehicle  in  this  country  and   not
unwittingly  commit some  infraction  of  the
motor  vehicle  laws.   Thus,  a  substantial
number of drivers are at risk of being pulled
over   and, during these traffic stops, being
asked  to  allow  police officers  to  search
their  persons or their vehicles.   In  these
circumstances,  motorists   may   decide   to
sacrifice  their right to privacy  and  grant
consent to the requested searches in order to
escape with only a warning.
          This type of psychological pressure
would only be accentuated in situations  like
Browns case.  Brown was never informed of the
reason  why Trooper Salinas pulled her  over.
In other words, Brown was never told that she
was  the  subject of a routine  traffic  stop
(rather  than  the target of a  more  serious
criminal investigation).  For all that  Brown
knew,  Salinas requested her license so  that
he could verify her identity before making  a
full  custodial  arrest.   Moreover,  because
Salinas  never apprised Brown of  the  reason
for  the stop, Brown had no idea when, or if,
she would be free to leave.
          Whatever  the  exact  reasons   for
motorists  willingness  to  accede   to   the
requests of law enforcement officers,  it  is
clear  that  large numbers of  motorists  are
consenting to be searched each year   indeed,
each  month,  and each week.   Motorists  are
giving consent in such large numbers that  it
is  no longer reasonable to believe that they
are  making the kind of independent  decision
that  lawyers  and judges typically  have  in
mind when they use the phrase consent search.
          On  November 23, 1880,  at  Harvard
Law  School,  future  Supreme  Court  Justice
Oliver Wendell Holmes Jr. delivered a lecture
in which he proclaimed:

     The  life of the law has not been logic;
it has been experience.  The felt necessities
of  the time ... have had a good deal more to
do  than  the  syllogism in  determining  the
rules  by which men should be governed.   The
law   embodies   the  story  of   a   nations
development  through many centuries,  and  it
cannot be dealt with as if it contained  only
the  axioms  and corollaries  of  a  book  of

(Later  published as The Common Law,  Lecture
I,    Early   Forms   of   Liability,   first
          Holmess observation rings most true
at  those times when it becomes obvious  that
legal rules developed in former years, and in
former circumstances, no longer strike  their
intended   balance  of  competing  interests.
This is one of those times.
          The traffic stop was intended to be
a seizure of limited duration and scope for a
limited   purpose.   Instead,  because   most
people need to travel by car, and because  of
the   near-inevitability  that  people   will
commit   traffic  infractions,  the   routine
traffic  stop  has  become  the  doorway   to
widespread  and probing searches of  persons,
vehicles, and luggage.
          The     Fourth    Amendment,     as
interpreted  by  the  United  States  Supreme
Court,  and  as  applied by  various  federal
circuit  courts  and  state  courts,   offers
little  protection   to  motorists  in   this
situation.   Indeed, legal commentators  have
been  widely  critical of the  United  States
Supreme Courts consent-search jurisprudence.
          See,   e.g.,  Daniel  R.  Williams,
Misplaced  Angst:  Another Look  At  Consent-
Search  Jurisprudence, 82 Ind. L.  Jrnl.  69,
69-71  (2007) (No one seems to  have  a  good
word     to    say    about    consent-search
jurisprudence; it is a problematic  realm  of
Fourth  Amendment  law.);  Note,  The  Fourth
          Amendment and Antidilution:  Confronting the
Overlooked  Function of  the  Consent  Search
Doctrine, 119 Harv. L. Rev. 2187, 2188 (2006)
(Most  commentators  agree  that  the  Courts
current  approach is flawed, and  even  those
commentators  who defend the Courts  holdings
criticize  its reasoning.); Ric Simmons,  Not
Voluntary  But  Still  Reasonable:    A   New
Paradigm   for  Understanding   the   Consent
Searches Doctrine, 80 Ind. L. Jrnl. 773,  773
(2005)  (consent-search paradigm is a  triple
inconsistency:   the  Court  claims   to   be
applying one test, but in reality is applying
a  different  test   and neither  test  fully
comports  with the real-life confrontations);
Erica  Flores, Comment, People,  Not  Places:
The  Fiction  of Consent, The  Force  of  the
Public   Interest,   and   the   Fallacy   of
Objectivity   in   Police   Encounters   with
Passengers  During Traffic Stops,  7  U.  Pa.
Jrnl.  Const.  L. 1071, 1095 (2005)  (because
[t]here  is  no  such thing as  a  consensual
encounter  during a traffic stop, the  author
argues  that  courts need  a  new  standard);
Wayne  R.  LaFave, The Routine  Traffic  Stop
from Start to Finish:  Too Much Routine,  Not
Enough  Fourth Amendment, 102 Mich.  L.  Rev.
1843,   1898  (2004)  (arguing  that,   under
federal  precedent, officers can obviate  any
and   all  time  and  scope  limitations   by
performing the well-known  Lt. Columbo gambit
[of  asking  one  more thing ...],  with  the
courts  adjudging  any  ensuing  consent   to
search  to  be voluntary despite the  reality
that  any person who has been detained for  a
traffic  violation is unlikely to so perceive
the  situation); David A. Harris,  Car  Wars:
The  Fourth Amendments Death on the  Highway,
66  Geo.  Wash.  L. Rev. 556 (1998);  Ian  D.
Midgley, Comment, Just One Question Before We
Get  To  Ohio v. Robinette:  Are You Carrying
Any    Contraband    ...   Weapons,    Drugs,
Constitutional Protections ... Anything  Like
That?  48  Case  Western  Res.  L.  Rev.  173
(1997);  Steven L. Chanenson, Get the  Facts,
Jack!   Empirical Research and  the  Changing
Constitutional Landscape of Consent Searches,
71  Tenn. L. Rev. 399, 402 (2004) ([A]lthough
scholars  have criticized the consent  search
doctrine  for  years, the Supreme  Court  has
steadfastly  defended it  and  sided  with  a
pro-law  enforcement  approach.);  Robert  H.
Whorf,  Consent  Searches  Following  Routine
Traffic Stops:  The Troubled Jurisprudence of
a Doomed Drug Interdiction Technique, 28 Ohio
Northern U. L. Rev. 1, 7 (2001) (the coercion
inherent  in  consent searches after  routine
traffic stops must be addressed in some way).
          To  remedy this problem, some state
courts   have  begun  to  apply  the   Fourth
Amendment in a stricter fashion  abandoning a
primary emphasis on the temporal duration  of
the stop, and acknowledging that, even though
the  act  of asking a question may not  be  a
seizure   in  the  traditional  sense,   some
questions   and   requests  can   alter   the
fundamental nature of the interaction between
officer and motorist.
          For  instance, the court in Charity
v.  State, 753 A.2d 556 (Md. App. 2000), held
that  even when the total length of a traffic
stop  does not exceed the amount of time that
would  normally be required, the  purpose  of
the  justifying  traffic  stop  may  not   be
conveniently or cynically forgotten  and  not
taken  up  again  until after an  intervening
narcotics investigation has been completed or
has  run  a substantial course.  Id. at  565.
The  Maryland court declared that an officers
authority  to stop a vehicle for an  observed
violation of the traffic laws does not confer
the  right to abandon or never begin to  take
action  related  to  the  traffic  laws  and,
instead,  to  attempt to secure a  waiver  of
Fourth   Amendment  rights.   Id.  at  572.12
Accord,  Caldwell v. State,  780  A.2d  1037,
1048  (Del.  2001)  (the legitimating  raison
detre  of  [a traffic] stop may evaporate  if
its  pursuit  is unreasonably  attenuated  or
allowed  to  lapse into a state of  suspended
animation to pursue a drug investigation).
          However,  many  state  courts  have
abandoned   any   reliance  on   the   Fourth
Amendment  and have looked instead  to  their
own state law to provide greater restrictions
on police activity during traffic stops.
          Some  state courts have interpreted
their  state  constitutions to flatly  forbid
the  police  from  posing  any  question   or
request  that is unrelated to the  underlying
reason(s)  for the traffic stop,  unless  the
question   or   request   is   supported   by
particularized   reasonable   suspicion    to
believe that the motorist has committed or is
committing  some other crime.  See  State  v.
Washington, 875 N.E.2d 278, 282-83 (Ind. App.
2007);  State v. Fort, 660 N.W.2d 415, 418-19
(Minn.  2003),  and  State  v.  Wiegand,  645
N.W.2d  125,  135  (Minn.  2002);  State   v.
Elders,  927 A.2d 1250, 1260-61 (N.J.  2007),
          and State v. Carty, 790 A.2d 903, 912 (N.J.
2002);  State v. McClendon, 517  S.E.2d  128,
132  (N.C.  1999), and State v.  Parker,  644
S.E.2d  235,  241-42 (N.C. App.  2007).   See
also  State  v. Quino, 840 P.2d  358,  363-64
(Haw. 1992) (applying a similar rule to a non-
motor vehicle investigative stop).
          Another  state has interpreted  its
constitution to allow officers to  engage  in
some degree of unrelated questioning, even in
the absence of articulable suspicion, but not
if   the   officers  questions  or   requests
change[] the fundamental nature of the  stop.
State  v.  McKinnon-Andrews, 846  A.2d  1198,
1203 (N.H. 2004).
          And  New York has imposed a similar
requirement as a matter of state common  law.
See  People v. Hollman, 590 N.E.2d  204,  581
N.Y.S.2d   619  (N.Y.  1992)  (holding   that
reasonable  suspicion  was  required   before
narcotics officers could approach a passenger
in  a bus terminal and ask for permission  to
search the persons bag).
          The  Alaska Supreme Court has  long
recognized   that  the  search  and   seizure
provision of our state constitution  (Article
I,  Section  14)  contains  an  even  broader
guarantee  against unreasonable searches  and
seizures   than  is  found  in  its   federal
counterpart.  Woods & Rohde, Inc.  v.  Alaska
Dept.  of Labor, 565 P.2d 138, 150-51 (Alaska
1977).   As  the supreme court  explained  in
Woods & Rohde, this broader interpretation of
our   state  constitution  is  based  on  the
wording  of  Article  I,  Section  14  (which
differs from the Fourth Amendment in that  it
includes  the  additional  phrase  and  other
property),  and  also on the  fact  that  the
citizens   of   Alaska   have   amended   our
constitution to include an express  guarantee
of  privacy  (Article I, Section  22).   Id.;
see    also   Anchorage   Police   Department
Employees  Assn v. Municipality of Anchorage,
24 P.3d 547, 550 (Alaska 2001).
          Both  the Alaska Supreme Court  and
this   Court   have  repeatedly   interpreted
Article  I,  Section  14 to  provide  greater
protection to the citizens of this State than
they  would  otherwise have under the  Fourth
Amendment.13    We   have   exercised    this
authority  when  we were convinced  that  the
United  States  Supreme Courts interpretation
of  the  Fourth Amendment fails to adequately
safeguard our citizens right to privacy,  ...
fails  to  adequately protect  citizens  from
          unwarranted government intrusion, and ...
unjustifiably reduces the incentive of police
officers  to  honor  citizens  constitutional
rights.   Joseph v. State, 145 P.3d 595,  605
(Alaska App. 2006).
          The  facts of this case present  an
example   of   an  apparently   ongoing   and
unjustified   infringement  of  the   privacy
rights  of Alaska citizens.  And, as we  have
explained  here, it is uncertain whether  the
Fourth   Amendment  to  the   United   States
Constitution offers any remedy.  We therefore
conclude  that Article I, Section 14  of  the
Alaska  Constitution must be  interpreted  to
grant  broader protections than  its  federal
counterpart in situations like this.
          To resolve Browns case, we need not
decide  whether Article I, Section 14  should
be   interpreted   to   completely   preclude
requests   for  searches  during  a   routine
traffic stop unless the search is related  to
the  ground  for  the stop  or  is  otherwise
supported   by  a  reasonable  suspicion   of
criminality.   We  leave  that  question  for
another day.  Because Browns case presents  a
particularly egregious example of this police
practice, our holding in Browns case  can  be
more narrow.
          Browns case does, indeed, involve a
request  for  a search during a traffic  stop
where  the requested search was unrelated  to
the  ground  for  the  stop,  and  where  the
requested  search  was not supported  by  any
other  reasonable suspicion  of  criminality.
But  Browns  case  involves additional  facts
that  distinguish it from the run-of-the-mill
traffic stop.
          Brown  was stopped for an equipment
violation, but she was never informed of  the
reason  for the stop.  Brown did not know  if
she   was   suspected  of  a  minor   traffic
infraction or a more serious crime.   Without
explanation,  the  trooper  demanded   Browns
drivers license, and then he went back to his
patrol vehicle.  For all that Brown knew, the
trooper  might be verifying her  identity  in
preparation for arresting her.
          When the trooper returned to Browns
car,  he  still refrained from telling  Brown
the  reason  for  the stop.   Moreover,  even
though  the trooper had decided to let  Brown
off with a warning, the trooper gave Brown no
indication that she was free to go (or  would
shortly be free to go).  Instead, the trooper
asked  Brown  to consent to a search  of  her
person and her vehicle for drugs.
          Because Brown remained ignorant  of
the reason for the stop, she did not know the
basis for the troopers assertion of authority
over  her.   Consequently, even if Brown  had
been fully conversant with search and seizure
law,  Brown had no way of knowing if she  had
the right to refuse the troopers request   no
way  of  knowing if the troopers  request  to
conduct a search was indeed a request or was,
instead,  simply  a  polite  phrasing  of   a
          Given these circumstances, the fact
that the troopers request was made within two
and  a  half  minutes of the stop  (in  other
words,  within  the amount  of  time  that  a
motorist would normally expect to be detained
for a routine traffic stop) is not sufficient
to  establish  the legality of  the  troopers
request.   Under the facts of this  case,  we
hold that Article I, Section 14 of the Alaska
Constitution prohibited Trooper Salinas  from
asking  Brown  for permission to  search  her
person and her vehicle for drugs.
          The judgement of the superior court
is therefore REVERSED.
COATS, Chief Judge, concurring.

          In   order   to   prove   voluntary
consent, [t]here must be clear and convincing
evidence  that  the consent was  unequivocal,
specific, and intelligently given.1   In  the
present case, as the majority opinion  points
out,  Brown  was stopped at  3  a.m.  for  an
equipment  violation  because her  cars  rear
license  plate was not properly  illuminated.
Browns car and the troopers car were the only
cars  on the road. The trooper never informed
Brown  why  he stopped her, and he  took  and
retained  Browns  drivers  license.   As  the
majority opinion states:

     When the trooper returned to Browns car,
he  still  refrained from telling  Brown  the
reason  for the stop.  Moreover, even  though
the trooper had decided to let Brown off with
a   warning,  the  trooper  gave   Brown   no
indication that she was free to go (or  would
shortly be free to go).  Instead, the trooper
asked  Brown  to consent to a search  of  her
person and her vehicle for drugs.

     Because Brown remained ignorant  of  the
reason  for  the stop, she did not  know  the
basis for the troopers assertion of authority
over  her.   Consequently, even if Brown  had
been fully conversant with search and seizure
law,  Brown had no way of knowing if she  had
the right to refuse the troopers request   no
way  of  knowing if the troopers  request  to
conduct a search was indeed a request or was,
instead,  simply  a  polite  phrasing  of   a

          Under  these circumstances I  would
hold that the State did not show by clear and
convincing  evidence that Browns consent  was
unequivocal,   specific,  and   intelligently
given.  Although I (like my colleagues)  rely
on  article,  1  section  14  of  the  Alaska
Constitution to conclude that the evidence in
this  case  must be suppressed, I reach  this
decision  by a slightly different route  than
my colleagues have taken.

  1 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

  2  See  United  States v. Bradford, 423 F.3d 1149,  1158  (10th
Cir. 2005).

  3 State v. Robinette, 653 N.E.2d 695, 699 (Ohio 1995).

  4 Ohio v. Robinette, 519 U.S. at 38-40; 117 S.Ct. at 420-22.

5  Under  13  AAC 04.025(c), a vehicles rear license  plate  must
be  illuminated  by  the  taillight or  some  other  white  light
(whenever the vehicles headlights or auxiliary driving lights are
illuminated) so that it is clearly visible from a distance of  50
feet to the rear.  Browns license plate light was working, but it
was dirty.

6 524 P.2d 1251, 1255-57 (Alaska 1974).

7 See the cases listed in footnote 9.

8 Childs, 277 F.3d at 949.  See Florida v. Bostick, 501 U.S.
429, 434; 111 S.Ct. 2382, 2386; 115 L.Ed.2d 389 (1991) (mere
police questioning does not constitute a seizure).

9 Childs, 277 F.3d at 954; United States v. Purcell, 236 F.3d
1274,  1280  (11th Cir. 2001) (confirming a police  officers
authority to question a motorist on topics unrelated to  the
ground for the traffic stop, so long as the duration of  the
stop   is  not  significantly  lengthened:   only  unrelated
questions  which  unreasonably  prolong  the  detention  are
unlawful); United States v. Shabazz, 993 F.2d 431, 436  (5th
Cir.  1993)  ([W]e reject any notion that a police  officers
questioning, even on a subject unrelated to the  purpose  of
the  stop,  is  itself  a Fourth Amendment  violation.   ...
[D]etention,  not questioning, is the evil at  which  Terrys
second prong is aimed.).

10  Lichtenbergs work is an unpublished Ph.D. dissertation on
file  with  Rutgers University.  This  dissertation  is
described in Steven L. Chanenson, Get the Facts,  Jack!
Empirical  Research  and  the  Changing  Constitutional
Landscape  of Consent Searches, 71 Tenn. L.  Rev.  399,
451, 455 (2004).

11                      Available                    at

12  Quoting Whitehead v. State, 698 A.2d 1115, 1120 (Md. App.

13  Anchorage Police Department Employees Assn, 24 P.3d at
550;  State v. Malkin, 722 P.2d 943, 949 (Alaska  1986)
(Compton,  J.,  dissenting); State v. Jones,  706  P.2d
317,  324 (Alaska 1985); State v. Daniel, 589 P.2d 408,
416 (Alaska 1979); State v. Glass, 583 P.2d 872, 878-79
(Alaska  1978);  Roman v. State, 570  P.2d  1235,  1240
(Alaska  1977);  Zehrung v. State, 569  P.2d  189,  199
(Alaska 1977), modified on rehrg., 573 P.2d 858 (Alaska
1978); Coleman v. State, 553 P.2d 40, 46 (Alaska 1976);
Daygee  v.  State, 514 P.2d 1159, 1165  (Alaska  1973);
Joseph  v. State, 145 P.3d 595, 605 (Alaska App. 2006);
State  v.  Crocker, 97 P.3d 93, 94 (Alaska App.  2004);
Jackson  v.  State,  791 P.2d 1023, 1026  (Alaska  App.

1 Gieffels v. State, 590 P.2d 55, 62 (Alaska 1979) (citing
Sleziak v. State, 454 P.2d 252, 257 (Alaska 1969)).

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