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Erickson v. State (4/25/2008) ap-2161

Erickson v. State (4/25/2008) ap-2161

                             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


JOSEPH E. ERICKSON, )
) Court of Appeals No. A-8942
Appellant, ) Trial Court No. 4FA-04-536 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2161 April 25, 2008
)
          Appeal  from the Superior Court, Fourth  Judi
          cial  District, Fairbanks, Donald D. Hopwood,
          Judge.

          Appearances:   Marcia E.  Holland,  Assistant
          Public  Defender, Fairbanks, and  Barbara  K.
          Brink   and   Quinlan  G.   Steiner,   Public
          Defenders,   Anchorage,  for  the  Appellant.
          Kenneth  M.  Rosenstein,  Assistant  Attorney
          General,  Office of Special Prosecutions  and
          Appeals, Anchorage, and David W. M rquez  and
          Talis  J. Colberg, Attorneys General, Juneau,
          for the Appellee.

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

          MANNHEIMER, Judge.
          COATS, Chief Judge, dissenting.

          Joseph  E.  Erickson was riding in a car as a passenger
when  an  Alaska State Trooper stopped the car for not  having  a
front  license  plate.   When  the  trooper  asked  Erickson  for
identification, Erickson claimed to have no documents proving his
identity,  and then (verbally) he falsely identified  himself  to
the trooper as Chris Erickson.
          When  the  trooper entered this false information  into
the   APSIN   database  (the  Alaska  Public  Safety  Information
Network), he found no matching record, and he therefore concluded
that Erickson was lying about his identity.
          The  trooper ordered Erickson out of the car and patted
him  down.   This pat-down search yielded an identification  card
that  correctly identified Erickson as Joseph Erickson.  At  this
point,  the  trooper placed Erickson under arrest.   The  trooper
then continued the pat-down search.  During the continued search,
the  trooper found drugs  a plastic bag containing a green, leafy
material and a glass pipe containing a milky white residue.
          The  trooper also noticed a black bag lying on the snow
beside  the  passenger door of the car.  When the  trooper  asked
Erickson  about  this bag, Erickson replied that it  looked  like
trash.   The  trooper  then retrieved the bag  and  searched  its
contents.  He found a powdery substance that later was identified
as methamphetamine.
          Erickson  was  ultimately convicted  of  possession  of
methamphetamine  (the  substance  inside  the  black   bag)   and
possession of marijuana (the green, leafy material found  on  his
person).
          In  our  earlier  decision in this  case,  Erickson  v.
State,  141  P.3d 356 (Alaska App. 2006), we concluded  that  the
trooper  could properly require Erickson to get out of  the  car,
but  that  the trooper had no grounds for conducting  a  pat-down
search  of  Ericksons  person.  Id.  at  359-362.   We  therefore
directed  the superior court to decide what evidence  had  to  be
suppressed as a fruit of the illegal pat-down.  Id. at 362.
          On  remand, Superior Court Judge Donald D. Hopwood held
an  evidentiary hearing.  At this hearing, the trooper  testified
that  the  black  bag was plainly visible alongside  the  vehicle
because, even though snow was falling heavily at the time of  the
traffic stop, the black bag had no snow on it, and thus it  stood
out  against  the white ground.  From this, the trooper  inferred
that  the bag had either fallen out of the car when Erickson  got
out,  or that someone inside the car had just thrown the bag from
the car.
          The   trooper  testified  that,  even  if  he  had  not
conducted  a pat-down search of Ericksons person, he still  would
have searched the bag.  The trooper told the superior court that,
when  Erickson indicated that he had never seen the  bag  before,
the  trooper  took this to be a disclaimer of ownership   and  he
therefore felt free to search the bag as abandoned property.
          The  trooper further testified that, after he found the
powdery  substance  in the bag, he would have  arrested  Erickson
even  if  he  had not conducted the earlier pat-down search   and
that,  following Ericksons arrest, he would then have  thoroughly
searched Ericksons person.
          Responding  to the States contention that  the  trooper
could  lawfully  search the black bag because it  was  abandoned,
Erickson  argued  that his denial of ownership  was  the  tainted
fruit of the earlier illegal pat-down search.
          Judge Hopwood ultimately agreed with the State that the
trooper  would have seized and searched the black bag, regardless
of  what  had  occurred prior to that time.  Specifically,  Judge
Hopwood  concluded  that,  even without  the  preceding  unlawful
search of Ericksons person (and the discovery of the drugs on his
person),  the trooper inevitably would have asked Erickson  about
the  bag  and  that,  given  the  circumstances,  Erickson  would
inevitably  have denied ownership of the bag  thus  enabling  the
trooper to search the bag as abandoned property.
          Ericksons   case  now  returns  to  us,  and   Erickson
challenges  the  superior courts ruling that the  search  of  the
black bag was lawful.

     The  State  can not rely on the doctrine  of  abandoned
     property to justify the search and seizure of the  bag,
     because  Ericksons verbal abandonment of the  bag  (his
     disclaimer  of ownership) was the fruit of the  earlier
     illegal pat-down search and the consequent discovery of
     drugs on Ericksons person
     
               In  its supplemental brief to this Court, the
     State  takes the position that the troopers search  and
     seizure   of  the  bag  was  lawful  because   Erickson
     disclaimed  ownership  of the  bag,  and  thus  it  was
     abandoned for Fourth Amendment purposes.  But our prior
     case law in this area firmly holds that if a defendants
     act of abandonment is prompted by an illegal search  or
     seizure,  the  State  can  not  rely  on  that  act  of
     abandonment  as justification for a search and  seizure
     of the abandoned object(s).
               Here  is  our  discussion of  this  point  in
     Joseph v. State, 145 P.3d 595 (Alaska App. 2006):
          
               While  the  police  were  chasing   him,
          Joseph took out the plastic baggie containing
          the cocaine and threw it to the ground.  This
          action  might be viewed as an abandonment  of
          the cocaine.  However, as this Court noted in
          Young  v.  State, 72 P.3d 1250, 1255  (Alaska
          App. 2003), [a]cts of abandonment prompted by
          unlawful   police   conduct   are   generally
          considered   the   tainted   fruit   of   the
          illegality.  Thus, because Joseph threw  away
          the cocaine in response to police efforts  to
          unlawfully seize him (that is, police efforts
          to  subject  him to an unlawful investigative
          stop),  the  cocaine would be viewed  as  the
          tainted fruit of the police misconduct.
          
          Joseph, 145 P.3d at 601 (footnote omitted).
          (The  omitted footnote cites  three
cases  from other states in support  of  this
conclusion:   Cox v. State, 586  So.2d  1321,
1322 (Fla. App. 1991) (holding that when  the
defendants  act of abandoning or  dropping  a
package of marijuana was prompted by  or  was
the  result of an illegal stop, the purported
abandonment  could not be used to  justify  a
warrantless  search); State  v.  Belton,  441
So.2d  1195,  1199  (La. 1983)  (When  police
officers  make an investigatory stop  without
the  legal right to do so, property abandoned
or  otherwise disposed of as a result thereof
cannot  be  legally seized.);  and  Comer  v.
State,  754 S.W.2d 656, 659 (Tex. App.  1986)
(abandonment  must occur independent  of  any
police misconduct).
          In  addition  to our discussion  of
this  issue  in Joseph, see Wayne R.  LaFave,
Jerold H. Israel, and Nancy J. King, Criminal
Procedure  (3rd ed. 2007),  9.4(f),  Vol.  3,
p.  464, in which the authors state that  the
better  rule  is  to exclude  evidence  of  a
defendants    attempts    to    dispose    of
incriminating objects when the attempt to get
rid  of  the  object stems  from  an  illegal
search or seizure:

     Incriminating admissions and attempts to
dispose  of incriminating objects are  common
and   predictable  consequences  of   illegal
arrests and searches, and thus to admit  such
evidence   would   encourage   such    Fourth
Amendment violations in future cases.

          The  State  attempts to evade  this
authority  by  asserting  that  [t]he  record
simply does not support [the] conclusion that
Ericksons   disclaimer  of  ownership   [was]
tainted  ...  by  the  illegal  search.    We
disagree.
          Erickson  was not questioned  about
the  bag, and he made no statement about  the
bag,  until  after the trooper conducted  the
illegal  pat-down, found drugs  on  Ericksons
person  (a  plastic bag containing  a  green,
leafy material and a glass pipe containing  a
milky  white  residue),  and  announced  that
Erickson    was    under    arrest.     These
circumstances  give every reason  to  believe
that Ericksons disclaimer of ownership was  a
fruit of the illegal search.

The States alternative argument:  inevitable discovery

     As  a  fall-back position, the State endorses
Judge  Hopwoods  theory of inevitable  abandonment
the  theory  that even if Erickson  had  not  been
patted-down, and the trooper had not  found  drugs
on  Ericksons  person, and Erickson had  not  been
placed under arrest, the trooper still would  have
inevitably asked the same question about the  bag,
and   Erickson   still   would   have   inevitably
disclaimed  ownership of the bag.  Based  on  this
theory,  the State argues that even if the illegal
search of Ericksons person had never occurred, the
trooper  inevitably would have been authorized  to
retrieve  and  search  the  bag  (because  it  was
abandoned property).
     The  States suggested version of events   its
description of what would have happened,  even  if
the  illegal search of Ericksons person had  never
occurred  is one possible scenario.  But  one  can
also  imagine  that Erickson would have  responded
differently  if he had not already been  subjected
to  an illegal search, and if the trooper had  not
already  found  drugs  on Ericksons  person.   For
instance,  if  no illegal search had taken  place,
and  the trooper had asked Erickson about the bag,
Erickson might have said, Oh, thats mine.  It must
have fallen out of the car when I opened the door.
     Judge  Hopwood believed that it was  unlikely
that   Erickson  would  respond  in  that  fashion
because Erickson knew that there were drugs on his
person and in the bag, and because he was nervous.
But   despite  these  factors,  there  is  nothing
inevitable   about   the  content   of   Ericksons
response.
          Inevitable    does   not   mean    plausible,
expectable, or even likely.  Rather, a series of events
is  inevitable only when we can say with  surety  that,
regardless  of the variables, things would have  turned
out the same.
          The  actual  events  in this  case  were  not
inevitable.   That  is,  it  was  not  inevitable  that
Erickson would disclaim ownership of the bag after  the
trooper  patted him down and found drugs on his person.
Erickson might well have responded, Okay, youve got me.
There are more drugs in the bag.
          (And,  if  Erickson had done  so,  the  State
would  now  be hard-pressed to argue that the retrieval
and  search of the bag was not tainted by the preceding
illegal search.)
          There  is  even less inevitability concerning
what  Erickson might have said about the bag if he  had
not  already been subjected to an illegal pat-down, and
if  the  trooper had not discovered the  drugs  on  his
person.   One  can speculate about what Erickson  would
have said, and one can even make informed guesses,  but
there  is  nothing inevitable about a persons  decision
how to respond to police questioning.
          As  the  Third  Circuit explained  in  United
States  v.  V squez de Reyes, 149 F.3d  192  (3rd  Cir.
1998),
     
In  response  to our inquiry, the  government
was  unable to cite to any decision in  which
the inevitable discovery doctrine was applied
to  admit  statements, as distinguished  from
physical  evidence.   While  we  know  of  no
articulation  of  the  inevitable   discovery
doctrine   that  [expressly]  restricts   its
application to physical evidence, ...  it  is
patent  why [the doctrine has] generally,  if
not  always,  been  so limited.   A  tangible
object  is  hard evidence, and[,] absent  its
removal[,]  will  remain  where  left   until
discovered.  In contrast, a statement not yet
made  is, by its very nature, evanescent  and
ephemeral.  Should the conditions under which
it  was made change, even but a little, there
could  be  no assurance [that] the  statement
would be the same.

V squez  de Reyes, 149 F.3d at 195-96 (quoted
in  Wayne  R. LaFave, Search and Seizure:   A
Treatise  on  the Fourth Amendment  (4th  ed.
2004),  11.4(a), Vol. 6, p. 268).
          Accord, United States v. White, 339
F.Supp.2d  1165, 1176-77 &  n.  56  (D.  Kan.
2004) (the inevitable discovery applies  only
to physical evidence, not statements); United
States v. Awadallah, 202 F.Supp.2d 55,  81-82
(S.D.  N.Y. 2002), reversed on other grounds,
349 F.3d 42 (2nd Cir. 2003) (same).
           See also United States v. Pelullo,
173  F.3d  131,  137 n. 4   (3rd  Cir.  1999)
([determining]  what Pelullo would  or  would
not   have   testified  to  [under  different
circumstances]    clearly    would    require
speculation inconsistent with the  inevitable
discovery   doctrine);   United   States   v.
Rodr¡guez,  unpublished, 2006 WL 2860633,  at
*11 (D. Conn. 2006) (as De Reyes makes clear,
it is not so easy to conclude, let alone with
a  high level of confidence, that Delossantos
would  have said the same thing to the police
[in  the absence of the prior unlawful arrest
and  search]);  United  States  v.  Castillo,
unpublished, 2006 WL 522104, at *14  (D.  Me.
2006)  (questioning  whether  the  inevitable
discovery  doctrine  can  ever  be   properly
applied to as-yet-unmade statements).
          Moreover,   as   Professor   LaFave
explains,   for  purposes  of  applying   the
inevitable  discovery doctrine, there  is  an
important  distinction  between  cases   that
involve  a  determination  ...  of  what  law
enforcement agents would otherwise have  done
[and]  with  what results and, on  the  other
hand,  cases that involve a determination  of
what  some  other  person  would  have  done.
LaFave  et al., Search and Seizure,  11.4(a),
Vol.  6,   p.  282.   Cases  that  rely  upon
individual behavior as a crucial link in  the
inevitable discovery chain, particularly when
that  behavior is heavily influenced  by  the
illegality that did occur, rarely sustain  an
inevitable discovery theory.  Id. at  p.  283
(citing  State  v. Topanotes, 76  P.3d  1159,
1164 (Utah 2003)).
          Conceivably, there might  be  cases
where a court could properly find that an as-
yet-unuttered    statement     was     indeed
inevitable.  But this is not one.
          For  these  reasons, we reject  the
States contention that, even if Erickson  had
not  been subjected to the illegal search and
ensuing  arrest,  he  inevitably  would  have
disclaimed ownership of the bag, and thus the
trooper inevitably would have been authorized
to  retrieve and search the bag as  abandoned
property.

Conclusion

     The  evidence found in the black bag was  the
fruit of the earlier illegal pat-down search,  and
it  should have been suppressed.  Accordingly, the
judgement of the superior court is REVERSED.
COATS, Chief Judge, dissenting.

          I   start  with  the  proposition  that   the
exclusionary  rule generally extends only  to  evidence
that  the  police discovered by acting  illegally.1   I
would uphold Judge Hopwoods decision that the evidence,
which  the police used to convict Erickson, was  not  a
product  of the illegal search of Erickson.  Therefore,
the  exclusionary rule would not apply to  exclude  the
evidence.
          In  the present case, we have previously held
that Trooper Hazelaar had authority to stop the car  in
which  Erickson  was a passenger and to order  Erickson
out  of the car.2  But we concluded that the record did
not establish that the trooper had sufficient reason to
conduct a pat-down search of Erickson for weapons.3  We
remanded the case to the trial court to determine  what
evidence  must be suppressed as a fruit of the  illegal
pat-down  search  and  whether any  evidence  might  be
admissible  against  Erickson  under  the  doctrine  of
inevitable discovery.4
          Judge Hopwood held an evidentiary hearing. At
the  hearing Trooper Hazelaar testified that the  black
bag  was plainly visible alongside the vehicle, because
the  area was well lit and it was snowing heavily.  The
black  bag, with no snow gathered on it, stood  out  on
the  bleach-white snow.  He was not certain if the  bag
had  fallen out of the car when Erickson exited, or  if
the  bag was intentionally thrown from the vehicle.  He
testified that, regardless of the pat-down of Erickson,
he  would  have seized and searched the  bag.   Trooper
Hazelaar  told  the  court that  he  would  have  asked
Erickson  if  he  owned the bag, and that  if  Erickson
denied it was his, that he would search the bag.
          At  the evidentiary hearing, Trooper Hazelaar
testified  that  he asked Erickson  about  the  bag  as
Erickson was approaching the rear of the car  prior  to
the  pat-down.    Because  this testimony  contradicted
Trooper  Hazelaars  earlier  testimony  at  the   first
evidentiary hearing, the audio recording of the traffic
stop  (which was played at trial), and Hazelaars  trial
testimony,  the  State conceded in  its  argument  that
Hazelaar did not actually ask about the bag until after
Erickson  had  been  patted down  for  weapons.   Judge
Hopwood made a factual finding that Erickson was  asked
about the bag after the pat-down.
          Trooper  Hazelaar stated that  it  was  clear
that Erickson was denying that the bag belonged to him.
Hazelaar  therefore would have searched  the  bag.   He
testified that as a result of his search of the bag, he
would  have  arrested Erickson and thoroughly  searched
him.
          Judge  Hopwood heard arguments on this issue.
The State noted that Erickson had never argued that  he
would  have  claimed ownership of the  bag.  The  State
          argued it would be unreasonable to assume that Erickson
would   ever   claim  ownership  of  the   bag.    Upon
questioning from Judge Hopwood, the State admitted that
on  occasion a person suspected of a crime  will  admit
ownership of a bag containing contraband, but that this
did not occur here.
          Erickson  argued that his denial of ownership
of  the  bag was tainted because it occurred after  the
illegal pat-down. Erickson therefore argued that it was
not  necessarily inevitable that Trooper Hazelaar would
have  been able to search the bag as abandoned property
because without the illegal pat-down, Erickson may have
asserted ownership of the bag.
          Following   this   hearing,   Judge   Hopwood
concluded  that  all  of the same  evidence  was  still
admissible.     He  implicitly  recognized   that   the
lynchpin to all the other evidence was the black bag.
          Judge    Hopwood   concluded   that   Trooper
Hazelaar,  regardless  of any questioning  of  Erickson
about  the  bag, would have seized and searched  a  bag
found  on  the  side of the road.  Judge  Hopwood  also
found that Hazelaar would have asked Erickson about the
bag  and  that  Erickson would have  denied  ownership.
Judge Hopwood found that Erickson was not knowledgeable
on search and seizure law and
          it  would  be extraordinarily  rare
          for  [a  person  without  extensive
          legal  knowledge]  to  be  able  to
          analyze the developing facts on the
          scene,   have  confidence  in   his
          conclusion,  and  overcome  a  very
          strong human reluctance and  go  on
          to  admit to a state trooper at the
          scene of a traffic stop under these
          circumstances ownership  of  a  bag
          containing illegal drugs.

He  concluded that Erickson would have denied ownership
under   any   circumstances  and  that  the   bag   was
consequently abandoned.
          Therefore, based on the inevitable  discovery
and  abandonment  doctrines, Judge Hopwood  found  that
[t]hrough predictable investigative processes, Hazelaar
would   have  searched  the  black  bag  even   without
previously  conducting the pat-[down] search  and  that
Hazelaar  had  the authority to search  the  black  bag
without  a  warrant  as  abandoned  property.   Because
methamphetamine would have been found inside  the  bag,
Hazelaar  would then have arrested Erickson  and  would
have searched him incident to the arrest and would have
discovered  the marijuana.  (Erickson was acquitted  of
the  charge stemming from the methamphetamine found  in
the  hotel room, therefore no discussion of the seizure
of  the  hotel  key  or search of  the  hotel  room  is
necessary.)

          Erickson   again  challenges  Judge  Hopwoods
conclusion.   Erickson  primarily  asserts  that  Judge
Hopwood   misapplied   the  abandonment   doctrine   by
considering the statement he made after the illegal pat-
down  (where  he  disavowed ownership of  the  bag)  to
conclude  that the search of the black bag  would  have
occurred regardless of the illegal pat-down.

          Discussion
          This  case turns on whether Trooper Hazelaars
search of the black bag was a fruit of the illegal pat-
down  search.  Judge Hopwood concluded  that  Ericksons
statements,  disavowing any knowledge or  ownership  of
the  black  bag  were   not a product  of  the  illegal
search.   Specifically, Judge Hopwood  found  that  the
fact  that  the  trooper had patted Erickson  down  and
found  evidence of drug possession on Erickson did  not
influence  Mr. Ericksons decision to deny ownership  or
control  of  the  black bag.  Nothing the  trooper  did
unlawfully  forced the defendant to disclaim  ownership
or control of the bag. [Erickson] would have disclaimed
them whatever happened, under all circumstances.
          Judge   Hopwood   found   that,   by   making
statements  denying any ownership  or  control  of  the
black  bag,  the  bag  became  abandoned  property  and
Erickson  had no reasonable expectation of  privacy  in
the  bag.  Therefore, the trooper could seize  the  bag
and  search  it.  Judge Hopwood found that the  trooper
certainly would have done this.  Trooper Hazelaar would
have  discovered  the  drugs in  the  bag,  would  have
arrested Erickson for felony drug possession, and would
have   searched  Erickson  incident  to   the   arrest.
Therefore,  Judge  Hopwood concluded  that  the  police
would  have  discovered all of the  evidence  that  the
State admitted against Erickson at trial.
          On  appeal,  Ericksons primary contention  is
that   Judge  Hopwood  erred  in  utilizing   Ericksons
statement denying ownership in the black bag in finding
that the black bag was abandoned.  Erickson points  out
that  he made the statement after Trooper Hazelaar  had
conducted  the  illegal pat-down search and  found  the
evidence  of drug possession in Ericksons pockets.   He
points  out  that he had not only been  subject  to  an
illegal  pat-down search, but that a reasonable  person
in  his  position would have concluded that he  was  in
police custody.  He also points out that Hazelaar asked
him  about the black bag after the illegal pat-down but
before the trooper had given him a Miranda warning.  He
therefore   contends  that  Judge  Hopwood   erred   in
considering his statement disclaiming ownership of  the
black  bag because the statement was not only a product
of  the  illegal  search, but was also the  product  of
custodial  interrogation conducted without the  benefit
of a Miranda warning.
          This case presents a difficult issue.  But  I
conclude  that  Judge Hopwoods finding, that  Ericksons
statement  disclaiming ownership of the black  bag  was
not  a product of the illegal search, is sound.  And  I
conclude  that Trooper Hazelaars question  to  Erickson
about  the black bag was on-the-scene questioning  that
did not violate Ericksons Miranda rights.

          Abandonment
          Abandonment  of property defuses  any  Fourth
Amendment expectation of privacy.5  Abandonment  occurs
when  a  person  discards property under  circumstances
that objectively manifest the intent to give up any and
all expectation of privacy in the property, now and  in
the  future.6   In reaching the decision that  Erickson
abandoned  the black bag, I have relied on  the  Alaska
Supreme  Court  case   of  State  v.  Salit.7     Salit
presented his possessions for x-ray examination  before
boarding   a   flight  departing  from  the   Anchorage
International Airport.  When an employee conducting the
examination  asked  to  search  Salits  handbag,  Salit
granted permission.  The search turned up what appeared
to  be  narcotics  paraphernalia  and  a  small  bottle
containing  a white powdery substance.8    The  airport
security   police  were  summoned.   When  an   officer
arrived,  he recognized the contents of Salits  handbag
as drug paraphernalia.  He asked Salit to come with him
and  began  to  escort Salit to the  airport  first-aid
room.   The officer noticed a garment bag on  a  chair.
The  officer was told that the bag belonged  to  Salit.
But  Salit  denied owning the bag.  The officer  opened
the  garment bag and found what appeared to be cocaine.
The  police  then took Salit to the first-aid  station,
read  him  his  Miranda rights, and  conducted  further
searches.  The supreme court upheld the search  of  the
garment bag on the theory that Salit had abandoned it.9
          In  contrast, Erickson attempts  to  rely  on
Young v. State.10  But in that case, Young attempted to
conceal   contraband  without  the  clear   intent   to
permanently  relinquish his ownership or control.11   I
agree with Judge Hopwood that Ericksons statement  that
the  bag  looked  like  trash objectively  indicated  a
relinquishment   of  any  reasonable   expectation   of
privacy.

          Miranda
          On  the potential Miranda issue, I also  find
Salit instructive.   In Salit, the Alaska Supreme Court
held  that the search of Salits handbag was permissible
because  Salit had consented to the search.  The  court
concluded  that, by denying ownership  of  the  garment
bag,   Salit  had  abandoned  that  bag  and  therefore
terminated his reasonable expectation of privacy in the
bag.12    In   reaching  this  conclusion,  the   court
investigated whether Salits denial was attributable  to
unlawful police conduct.13   The court noted that Salit
had not been given a Miranda warning at the time he was
asked  whether  he owned the bag.  The court  concluded
that  the  officers question to Salit  fell  within  an
exception to the Miranda doctrine: general on-the-scene
questioning.14   The court also found that the officers
question  about  whether Salit owned the  bag  did  not
constitute interrogation because there was no basis for
believing  that  [the officers] question  was  for  the
purpose  of  eliciting an incriminating statement.   He
did  not  know  the contents of the  bag,  and  it  was
logical  to  make the inquiry so that Salit could  have
the bag taken with him to the first aid room. We do not
believe    that   this   single   inquiry   constituted
interrogation.15
          Certain   facts  make  Ericksons  case   more
difficult  than  Salit.   Erickson made  his  statement
after  an illegal pat-down search.  Furthermore,  after
Trooper Hazelaar conducted the illegal pat-down  search
and  found  the  drugs  on Erickson,  Erickson  was  in
custody  for  Miranda purposes.  I  conclude,  however,
that  the  reasoning in Salit supports  the  conclusion
that  Judge Hopwood did not err when he concluded  that
the  evidence  that  the  State  presented  to  convict
Erickson was properly admitted in Ericksons trial.16
          Judge Hopwood found that Trooper Hazelaar had
seen  the black bag and would have asked Erickson about
it.   Ericksons decision to deny ownership of  the  bag
was  not  influenced  by the earlier  illegal  pat-down
search.  The reasoning of Salit appears to support  the
conclusion that Ericksons denial, that the bag was  not
his, was not testimonial.  In his treatise, Search  and
Seizure,  Professor LaFave concludes  that,  where  the
police obtain a consent to search from a person who  is
in custody and has not been given Miranda warnings, the
prevailing  and  better view is  that  the  consent  to
search is neither testimonial, nor communicative in the
Fifth Amendment sense.17  Ericksons denial that he  had
any  connection  to the black bag seems  similar  to  a
response  to a request from a police officer to  search
the  bag.  Before Erickson could consent to any search,
he  would  first have to acknowledge ownership  of  the
bag.   Ericksons  response, denying  ownership  of  the
black  bag,  does  not  appear  to  be  a  response  to
interrogation.
          I   therefore  would  uphold  Judge  Hopwoods
decision that Ericksons denial  that the black bag  was
his  was  not a product of the earlier illegal pat-down
search. Ericksons contention is that the statement  was
a  product of the prior illegal search.  But, as  Judge
Hopwood found, this seems highly unlikely.

          I  agree  with  the  force of  the  majoritys
argument  that if Erickson admitted that the black  bag
was  his that he would have a strong argument that  his
statement was the product of the prior illegal  search.
But  that  is  not what Erickson did.  Erickson  denied
that  he  had  any connection with the  bag.   And,  as
Judge  Hopwood  found, it seems highly improbable  that
Ericksons statement was a product of the prior  illegal
search.
          If Ericksons statement was not the product of
the  prior  illegal search, then it makes no  sense  to
exclude the evidence that the police obtained from  the
statement.  The exclusionary rule should extend only to
evidence  that the police discover by acting illegally.
Extending  the  exclusionary  rule  beyond  this  point
simply  constitutes  an  unnecessary  windfall  to  the
appellant.   I  would therefore uphold  Judge  Hopwoods
decision.

_______________________________
1 See, e.g., Smith v. State, 948 P.2d 473, 477 (Alaska 1997)
(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.  (citing Wong Sun v. United  States,  371
U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963))).

2 Erickson v. State, 141 P.3d 356, 359 (Alaska App. 2006).

3 Id. at 362.

4 Id.

5 State v. Salit, 613 P.2d 245, 255 (Alaska 1980).

6 Young v. State, 72 P.3d 1250, 1253 (Alaska App. 2003).

7 613 P.2d 245.

8 Id. at 247-48.

9 Id. at 249.

1072 P.3d 1250.

11Id. at 1254.

12Salit, 613 P.2d at 258.

13Id. at 256.

14Id. at 257.

15Id. at 257-58.

16See, e.g., Beagel v. State, 813 P.2d 699, 705 (Alaska App.
1991)  (stating that Miranda rights are triggered by custody
and  interrogation and that general on-the-scene questioning
is not interrogation); People v. Bailey, 172 A.D.2d 163, 163
(N.Y.  App.  Div.  1991) (holding that initial  question  of
whose  wallet is this? after officers found a wallet on  the
ground near two suspects was meant to clarify the nature  of
the situation confronted and was not a part of a process  of
interrogation).

174  Wayne LaFave, Search and Seizure  8.2(j) at 117-18 (4th
ed.  2004) (quoting People v. Thomas, 12 Cal. App. 3d  1102,
1110, 91 Cal. Rptr. 867 (Cal. Ct. App. 1970)).

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