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Jacklyn Gosuk v. State of Alaska (3/26/2021) ap-2696

Jacklyn Gosuk v. State of Alaska (3/26/2021) ap-2696

                                                                     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
  

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                      IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



JACKLYN GOSUK,  

                                                                                         Court of Appeals No. A-12749  

                                               Appellant,                             Trial Court No. 3DI-15-00359 CR  



                                   v.  

                                                                                                        O P I N I O N  

STATE OF ALASKA,  



                                               Appellee.                                   No. 2696 - March 26, 2021  



                        Appeal  f                

                                        rom  the  Superior  Court,  Third  Judicial  District,  

                        Dillingham, Patricia P. Douglass, Judge.  



                        Appearances:   Joseph R. Faith, Attorney at Law, Dillingham,  

                                                                                               

                       under contract with the Office of Public Advocacy, Anchorage,  

                                                                                

                        for the Appellant. Michal Stryszak, Assistant Attorney General,  

                                                                                                                    

                        Office of Criminal Appeals, Anchorage, and Jahna Lindemuth,  

                                         

                        Attorney General, Juneau, for the Appellee.  



                        Before:   Allard, Chief Judge, and Wollenberg and Harbison,  

                                                                

                        Judges.  



                        Judge WOLLENBERG.  



                        In October 2015, Jacklyn Gosuk was traveling from Dillingham to Togiak                                               



when an Alaska State Trooper approached her at the Dillinghamairport. The                                                            trooper had  



received a tip that Gosuk was transporting alcohol to Togiak, a local option community                                                


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

                                                                                                                                     1  

that   has   banned   the   sale,   importation,   and   possession   of   alcohol.     Following   an  



interaction with Gosuk outside the airport, the trooper removed Gosuk's luggage - a                                                                                 



plastictotecontainer -fromtheairplane,                                         searched it, and discovered twenty-fivebottles                             



of alcohol.           The State charged Gosuk with the offense of importing alcohol into a local                                                             



                       2  

option area.              



                                                                                                                                                                 

                          Gosuk moved to suppress all evidence seized at the airport, arguing that the  



                                                                                                                                                                

trooper had subjected her to an unlawful investigative stop and impermissibly seized and  



                                                                                                                                                     

searched her luggage.   Following an evidentiary hearing, the court denied Gosuk's  



                                                                                                                                                                 

motion to suppress, concluding that, inter alia, the interaction between Gosuk and the  



                                                                                                                                                            

trooper was not a seizure for Fourth Amendment purposes and that Gosuk had given  



                                                                                

valid consent to the trooper to search her tote.  



                                                                                                                                                                

                          Gosuk ultimately pleaded guilty to the importation charge, reserving the  



                                                                                                                                                3  

                                                                                                                                      

right to appeal the denial of her motion to suppress under Cooksey v. State. 



                                                                                                                                                                   

                          On appeal, Gosuk challenges the superior court's denial of her motion to  



                                                                                                                                                    

suppress.              Gosuk  renews  her  arguments  that  the  trooper  conducted  an  unlawful  



                                                                                                                                                                 

investigative  stop  when  he  contacted  her  at  the  airport,  and  that  he  conducted  an  



                                                                                                                                           

unlawful search and seizure when he examined the contents of her tote.  



       1     See  AS 04.11.491 (allowing local residents to hold an election to determine if the sale,   



importation, and possession of alcohol will be prohibited in the community); Alcohol &   

Marijuana                  Control              Office,             Schedule                of       Local            Option              Communities  

(Oct.            2020),               Alaska               Dep't             of        Com.,              C mt y.             &        E c on.            Dev.,  

https://www.commerce.alaska.gov/web/Portals/9/pub/ABC/DryDampCommunities/Local  

Option10152020.pdf.  



      2      AS  04.11.499(a)  (prohibiting  a  person  from  knowingly sending,  transporting,  or  

                                                                                                                        

bringing an alcoholic beverage into a municipality or established village that has voted to  

                                                                                               

prohibit the importation of alcoholic beverages).  



       3     Cooksey v. State, 524 P.2d 1251 (Alaska 1974).  



                                                                              - 2 -                                                                          2696
  


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

                    After reviewing therecord, weagreewith thesuperior courtthat Gosuk was  

                                                                                                                                



not subjected to an investigative stop when the trooper initially spoke with her outside  

                                                                                                                          



the airport.   We are concerned, however, that the court did not expressly consider  

                                                                                                                       



whether  the  persistent  nature  of  the  trooper's  accusatory  questioning  subsequently  

                                                                                                                



transformed the encounter into an investigative stop.  

                                                                                  



                    In any event, we ultimately conclude that the court's finding that Gosuk  

                                                                                                                           



validly consented to the search of her tote rests, in part, on several factual findings that  

                                                                                                                               



are not supported by the record. We therefore must remand Gosuk's case to the superior  

                                                                                                                         



court to reconsider whether she voluntarily consented to the search of her tote.  

                                                                                                                           



                     On remand, because of the close factual overlap between these two issues  

                                                                                                                            



- the nature of the stop and the voluntariness of Gosuk's consent - the court should  

                                                                                                                  



also reconsider whether the encounter between the trooper and Gosuk ever ripened into  

                                                                                                                               



an investigative stop.  

                          



           Underlying facts and litigation of the suppression motion  

                                                                                        



                    Thefollowing facts arebased ontheevidentiary hearingon Gosuk's motion  

                                                                                                                           



to suppress.  

     



                     On October 13, 2015, Alaska State Trooper Mark Eldridge went to the  

                                                                                                                                



Dillingham airport to investigate a tip that Gosuk was transporting alcohol to Togiak, a  

                                                                                                                                   



local option community.  Eldridge identified Gosuk inside the airport terminal, and he  

                                                                                                                                  



asked her, "[D]o you think I could talk to you for a second?"  Eldridge was dressed in  

                                                                                                                      



full police uniform, but he did not touch Gosuk, or take her identification or plane ticket.  

                                                                                                                                      



Eldridge was familiar with Gosuk from assisting her in a prior incident.  

                                                                                                 



                    Eldridge and Gosuk stepped outside the terminal to speak.  Eldridge and  

                                                                                                                               



Gosuk stood on the front steps leading into the airport terminal, with Gosuk remaining  

                                                                                                                     



                                                               -  3 -                                                         2696
  


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

"at an elevated position" and Eldridge on the ground below her.  The two were standing  

                                                                                                                       



at what Eldridge described as a "normal conversational distance."  

                                                                                      



                    Theconversation between EldridgeandGosuk was recorded, and theaudio  

                                                                                                                            



was admitted as an exhibit and played for the court at the evidentiary hearing.  

                                                                                                                         



                    When Eldridge began questioning Gosuk, he told her that she did not have  

                                                                                                                             



to speak to him.  He then asked, "Do you mind if I ask you a couple of questions?  You  

                                                                                                                              



don't have to talk to me."   Gosuk responded, "Yes" (which Eldridge interpreted as  

                                                                                                                                 



granting him permission to talk with her).  

                                                         



                    Eldridge told Gosuk that he had heard that she may be bringing alcohol to  

                                                                                                                                 



Togiak, and he asked her whether there was any truth to that.  Gosuk said, "No."  

                                                                                                                              



                    Eldridge  then  asked  Gosuk  if  he  could  check  her  luggage  to  confirm  

                                                                                                                       



whether or not she had any alcohol - but he also told her that she did not have to let  

                                                                                                                                



him. Eldridge explained that "any time that we can dispel these rumors, it just makes life  

                                                                                                                               



easier on us."  Eldridge also added that, even if he found alcohol in her luggage, he  

                                                                                                                  



would not arrest her that day and would instead seize the alcohol and "deal with it later  

                                                                                                                              



on."  Eldridge reiterated that Gosuk did not have to talk with him and did not have to let  

                                                                                                                                



him search her luggage, but he also noted the past assistance he had provided to Gosuk:  

                                                                                                                                     



                    You and I have always had a pretty good relationship.   I  

                                                                                                              

                    know we've talked before.  So, I think there's a bit of a trust  

                                                                                                          

                    that you and I have there.  I know I've helped your little girl  

                                                                                                           

                    out before.  So I was just wondering.  I mean, is there any  

                                                                                                          

                    alcohol in there?  

                                     



Gosuk again responded, "No."  Eldridge asked Gosuk a third time, "There's no alcohol  

                                                                                                                         



in there?"  And again, Gosuk said, "No alcohol."  

                                                              



                    For the next several minutes, Eldridge repeatedly sought permission from  

                                                                                                                             



Gosuk to search her luggage, asking multiple times, "Would you mind if we took a  

                                                                                                                                  



look?"  Gosuk never answered that question directly.  But she continued to repeatedly  

                                                                                                                    



                                                              - 4 -                                                          2696
  


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

deny having any alcohol, and told Eldridge that her tote contained winter clothes and  

                                                                                                                              



winter boots.  The following portion of the conversation is representative of the larger  

                                                                                           



exchange:  



                              Eldridge :   . . . Would you mind if we took a look?  

                                                                                                       

                    And it's okay if you tell me that there's alcohol in there.  

                                                                                                                 

                    Again, I'm not going to make a big spectacle of it either.  

                                                                                                  



                               Gosuk:  There is no alcohol.  

                                                              



                              Eldridge :  Okay.  Would you mind if we looked?  If  

                                                                                                             

                    we looked  in  there?              Is  there any other  type of drugs or  

                                                                                                            

                    anything like that you shouldn't be bringing out there?  

                                                                                               



                               Gosuk:  No.  

                                            



                              Eldridge :        No?       Okay,  I  mean,  would  you  mind?  

                                                                                                      

                    Again, it's up to you.  You wouldn't mind?  

                                                                              



                               Gosuk:  It's all winter boots.  

                                                                 



                    Eldridge then asked again, "Would you mind if we just took a look real  

                                                                                                                              



quick?"  Gosuk responded, "Yes."  (Eldridge testified that, at this point, he believed  

                                                                                                                       



Gosuk was granting him permission to search her tote.)  Eldridge then said, "So that's  

                                                             



okay?"  But the transcript and the recording reflect no audible response by Gosuk.  

                                                                                                                                



                    Eldridge then said, "Okay.   Here, why don't you come on with me?"  

                                                                                                                                     



Eldridge and Gosuk then proceeded to the airplane.  After opening the rear cargo door  

                                                                                                                             



of the plane, Eldridge asked Gosuk to identify her tote among the other items in the  

                                                                                                                               



plane.  Eldridge lifted the tote out of the plane and set it on the ground, and he asked  

                                                                                                                           



Gosuk one more time, "And again . . . you don't mind if I [take] a look, right?"  Gosuk  

                                                                                                                          



replied, "Uhn-uhn (negative)."  

                              



                    Eldridge then proceeded to search the tote. In the tote, Eldridge discovered  

                                                                                                                    



and confiscated twenty-five bottles of alcohol.  At the end of the interaction, Eldridge  

                                                                                                                       



asked, "[I]s there anything I said or anything like that to make you say what you did?"  

                                                                                                                                     



                                                              -  5 -                                                         2696
  


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

Gosuk responded, "No."                            Eldridge followed up with, "This was all okay?                                                You allowed   



me to look in there?                       You understand you didn't have to talk to me?"                                                   Gosuk replied,   



"Yes."  



                          The court denied Gosuk's motionto                                     suppress. The               court concluded that the  



interaction between Eldridge and Gosuk was a lawful police-citizen contact and not an                                                                                 



investigativestop                  (andthereforedid                  not requirereasonablesuspicion ofimminent                                              danger  



                                              4  

or recent serious harm).                                                                                                                               

                                                  The court further found that Gosuk had voluntarily consented  



                                                                                                                                                 

to the search of her tote and therefore a search warrant was not required.  



                                                                                                                                                          

                          Following the court's denial of her motion to suppress, Gosuk pleaded  



                                                                                                                                                

guilty, reserving the right to appeal the denial of her motion to suppress.  



                                                   

                          This appeal followed.  



                                                                                                               

              Whether Gosuk was subjected to an investigative stop  



                                                                                                                                                                   

                          Gosuk first argues that the superior court erred in concluding that her  



                                                                                                                                                                      

interaction with Trooper Eldridge was a consensual police-citizen encounter and not an  



                                                                                                    

investigative stop requiring reasonable suspicion.  



                                                                                                                                                                       

                          The Fourth Amendment to the United States Constitution and Article I,  



                                                                                                                                                                

Section 14 of the Alaska Constitution guarantee the right of citizens to be free from  



                                                                                                                                                                        

unreasonable searches and seizures.  Under Alaska law, before an officer can subject a  



                                                                                                                                                               

person  to  an  investigative  stop,  the  officer  must  have  reasonable  suspicion  "that  



       4     See Coleman v. State, 553 P.2d 40, 46 (Alaska 1976) (holding that an officer may   



conduct an investigative stop only if the officer has "reasonable suspicion that imminent     

public danger exists or serious harm to persons or property has recently occurred").   



                                                                                -  6 -                                                                           2696
  


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

imminent public danger exists or [that] serious harm to persons or property has recently                                           

occurred."5  



                                                                                                                                     

                      However, not every contact between a police officer and a private citizen  



                                                                                     6  

                                                                                                                              

                                                                                        Our case law draws a distinction  

involves a "seizure" that triggers these protections. 



                                                                                                                                          

between investigative stops (which constitute seizures for constitutional purposes) and  



                                                                                                                                             

police-citizen contacts in which the police merely seek information without engaging in  



                                                                                                                                         

a show of authority. We have said that "an officer does not conduct an investigative stop  



                                                                                                                                     

'by merely approaching an individual on the street or in another public place, by asking  



                                                                                                                                           

him if he is willing to answer some questions, [or] by putting questions to him if the  



                                             7  

                                                                                                                                         

person is willing to listen.'"                  In contrast, an officer does engage in an investigative stop  



                                                                                                                                   8  

                                                                                                                          

when a reasonable person subject to the encounter would not feel free to leave. 



                                                                                                                                         

                      It  is  clear,  under  our  case  law,  that  Eldridge's  initial  approach  and  



                                                                                                                                            

conversation with Gosuk outside the airport did not amount to an investigative stop. As  



                                                                                                                                        

the court found, Eldridge approached Gosuk in a public place, and he was the only  



                                                                                                                                      

officer present during the encounter.  Although Eldridge asked Gosuk about the report  



                                                                                                                                           

that she was carrying alcohol, the mere recitation of his suspicion did not convert the  



      5    Id.  



      6     Waring v. State, 670 P.2d 357, 363 (Alaska 1983) (citing Florida v. Royer, 460 U.S.  



491, 497 (1983)).  



      7    Cofey v. State, 216 P.3d 564, 566 (Alaska App. 2009) (quoting   Waring, 670 P.2d at  



363) (alteration in Cofey); see also Adams v. State, 103 P.3d 908, 910 (Alaska App. 2004)  

("A police officer can approach a private citizen and direct questions to that person without  

turning the encounter into an investigative stop.").  



      8     Waring, 670 P.2d at 364; Cofey, 216 P.3d at 566.  



                                                                    -  7 -                                                              2696
  


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

                                          9  

stop into a seizure,                         especially since Eldridge told Gosuk several times that she did not                                                                            



have to speak with him.                                     Eldridge was in full uniform, but he did not display any                                                                       



weapons during the encounter nor did he block Gosuk fromleaving the conversation and                                                                                                        



returning to the terminal.                                Given these findings, which are supported by the record, we                                                                        



conclude that the initial portion of the encounter between Eldridge and Gosuk did not                                                                                                       



constitute an investigative stop.                            



                              It   is   less   clear,   however,   whether   the   encounter   ever   ripened  into   an  



                                          10  

investigative   stop.                                                                                                                                                                        

                                                  As  a  general  matter,  questioning  that  is  designed  to  elicit  an  



                                                                                                                                                                             

incriminating response does not, standing alone, automatically convert an otherwise  



                                                                                       11  

                                                                                                                                                                               

consensual  encounter  into  a  seizure.                                                       But  the  accusatorial  nature  of  an  officer's  



                                                                                                                                                                                     

questions is one factor for a court to consider in evaluating whether a reasonable person  



                                                                  12  

                                                                        

                                                     

would have felt free to leave. 



        9      See, e.g.,  Wright v. State, 795 P.2d 812, 814-15 (Alaska App. 1990) (concluding that  



the encounter between the trooper and the defendant in a public place did not constitute a     

seizure, despite the trooper's inquiry as to whether the defendant's luggage contained drugs   

and subsequent request to search the luggage); LeMense v. State , 754 P.2d 268, 273 (Alaska  

App. 1988) (concluding that the trooper was entitled to approach the defendant and inquire  

                             

whether  the  defendant's  suitcase  held  drugs  without  converting  the  encounter  into  an  

investigative stop).  



        10     See  I.N.S.  v.  Delgado,  466  U.S.  210,  215  (1984)  (recognizing  that  "an  initially  

                                                                                          

consensual encounter between a police officer and a citizen can be transformed into a seizure  

or detention within the meaning of the Fourth Amendment").  



        11     Id. at 216 (noting that "police questioning, by itself, is unlikely to result in a Fourth  

                                                                                                                                                         

Amendment violation . . . [u]nless the circumstances of the encounter are so intimidating as  

                                                                                                                        

to demonstrate that a reasonable person would have believed he was not free to leave had he  

not responded").  



        12     See 4 Wayne R. LaFave, Search and Seizure  9.4(a), at 607 (6th ed. 2020) (collecting  

                                                                                                                  

cases); see also State v. Alverez, 147 P.3d 425, 431 (Utah 2006) (concluding that "the manner  

                                                                     

                                                                                                                                                                       (continued...)  



                                                                                            -  8 -                                                                                       2696
  


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

                                      Here, Gosuk argues that, in the face of Eldridge's persistent questioning -                                                                                                                              



and in particular, his repeated posing of the same accusatory question - a reasonable                                                                                                                                  



person would not have felt free to leave. In essence, she contends that, even if the initial                                                                                                                                         



encounter   between   Eldridge   and   Gosuk   did   not   constitute   an   investigative   stop,  



Eldridge's refusal to accept Gosuk's repeated assertions that she did not have alcohol in                                                                                                                                                       



her tote converted the interaction into a seizure.                                                                                       



                                      There is support for Gosuk's position in other jurisdictions.                                                                                                            For example,   



in   Gordon v. United States                                                    , the District of Columbia Court of Appeals held that an                                                                                                      



officer's repeated questioning of the defendant about his identity, lasting ten minutes,                                                                                                                                     



converted the initial encounter into a seizure, notwithstanding the officer's calm and                                                                                                                                                     



                                                                   13  

conversational manner.                                                                                                                                                                                                                       

                                                                           In State v. Thomas, the Kansas Supreme Court held that the  



                                                                                                                                                                                                                                                

officer's repeated questioning of the defendant about whether she had recently used or  



                                                                                                                                                                                                                                               

was currently in possession of drugs, despite the defendant's denials, was a factor to be  



                                                                                                                                                                                                                         14  

                                                                                                                                                                                                                               And in  

considered in analyzing whether the encounter was an investigative seizure. 



                                                                                                                                                                                                                                          

 United  States  v.  Little,  the  Tenth  Circuit  stated  that  "[a]ccusatory,  persistent,  and  



                                                                                                                                                                                                                                                  15  

                                                                                                                                                                                                                                  

intrusive questioning can turn an otherwise voluntary encounter into a coercive one."                                                                                                                                                                    



          12       (...continued)  



of questioning, the content of the questions, and the context in which the questions are being  

                                                                                

asked can convert 'mere questioning' into a . . . seizure if, under all of the circumstances, a  

                                                                                                                                                                                               

reasonable person would not feel free to leave").  



          13       Gordon v. United States, 120 A.3d 73, 79-81 (D.C. 2015).  



          14       State v. Thomas, 246 P.3d 678, 685-87 (Kan. 2011); see State v. Hogan, 252 P.3d 627,  

                                                                 

634 (Kan. App. 2011) (noting, in reliance on Thomas, that "repeated questions, which persist  

despite  repeated  denials  of  culpability,  can  be  considered  in  determining  whether  an  

                                                                                                                                        

encounter is voluntary").  



          15        United States v. Little, 60 F.3d 708, 712 (10th Cir. 1995) (internal quotations omitted);  

                                                                               

                                                                                                                                                                                                                (continued...)  



                                                                                                                    -  9 -                                                                                                               2696
  


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

These cases rest on the idea - articulated by the United States Supreme Court in                                                              Florida  



v.  Bostick  -that a reasonable                      person subject to repeated accusatory questioning may not                                         

feel free to leave until the inquiring officer is satisfied.                                      16  



                                                                                                                                                      

                        Here, the superior court found, as a general matter, that Eldridge did not  



                                                                                                                                               

engage in conduct that would have been threatening or offensive if he had been a private  



              17  

citizen.                                                                                                                                 

                   But the court did not expressly consider the persistent nature of Eldridge's  



                                              

accusatory questioning.  



                                                                                                                                                   

                        Typically,  we would  be required  to  view the record  in  the light most  



                                                                          18  

                                                                                                                                                      

favorable to upholding the court's ruling.                                     But as we explain below, we conclude that  



                                                                                                                                               

a  remand  is  necessary  for  the  superior  court  to  reconsider  whether  Gosuk  validly  



                                                                                                                                                      

consented to the search of her tote.  Because there is factual overlap between these two  



(...continued)
  

see also Commonwealth v. Sierra, 723 A.2d 644, 646-47 (Pa. 1999) (noting that the police
  

officer's repetition of the same question, despite receiving a negative response, combined
  

                                                                         

with other factors to create an investigative detention); People v. Bloxson, 517 N.W.2d 563,
  

                                                                                               

567 (Mich. App. 1994) ("The repetitive, potentially incriminating questions undoubtedly
  

                                                                                             

would lead a reasonable person to believe that he was less able to terminate the encounter.");
  

                        

Lee v. State , 2015 WL 5969453, at *9-10 (Md. Ct. Spec. App. July 31, 2015) (unpublished)
  

                                                                                                                   

(holding that an initially consensual encounter rapidly transformed into a seizure, "most
  

                                                                                                                                   

importantly" because the officer repeated the same accusatoryquestion even as the defendant
  

                                                                                                          

indicated his unwillingness to participate in the inquiry).
  



      16    Florida v. Bostick, 501 U.S. 429, 435 (1991) (noting that officers "may generally ask  

                                                                                                                                                       

questions  of  [an]  individual  .  .  .  as  long  as  the  police  do  not  convey  a  message  that  

                                                                                                                                                     

compliance with their requests is required").  



      17    See Waring v. State, 670 P.2d 357, 364 (Alaska 1983) (recognizing that the key  

                                                  

question in determining whether a police-citizen encounter amounts to a seizure is whether  

the officer has "conducted himself in a manner consistent with what would be viewed as non- 

                                                                   

offensive contact if  it occurred between two ordinary citizens" (internal quotations and  

                                                                                                 

citation omitted)).  



      18    Baxter v. State, 77 P.3d 19, 23 (Alaska App. 2003).  



                                                                         -  10 -                                                                    2696
  


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

issues - namely, whether the persistent nature of the trooper's accusatory questioning                                                                                                                                                      



affected the nature of the stop or the voluntariness of Gosuk's consent - we conclude                                                                                                                                                               



that it is appropriate to allow the superior court in the first instance to reconsider whether                                                                                                                                                          



the encounter between Eldridge and Gosuk ever ripened into an investigative stop.                                                                                                                                                                     



                      Whether Gosuk voluntarily consented to the search of her tote                                                                                                                           



                                          Gosuk also argues that the State failed to establish that she voluntarily                                                                                                                          



consented to the search of her tote. We agree that the superior court's finding that Gosuk                                                                                                                                                                   



validly consented to the search of her tote rests, in part, on several factual findings that                                                                                                                                                                         

are not supported by the record.                                                                     19  



                                                                                                                                                                                                                 

                                          First, the court found that - over the course of the interaction between  



                                                                                                                                                                                                                                                                

Eldridge and Gosuk - Gosuk nodded her head affirmatively five times.   The court  



                                                                                                                                                                                                                                                           

specifically  relied  on  two  of  Gosuk's  purported  head  nods  in  finding  that  Gosuk  



                                                                                                                 

consented to the search of her tote.  



                                                                                                                                                                                                                                                                           

                                          But Eldridge never testified that Gosuk nodded her head in agreement at  



                                                                                                                                                                                                                                                                                    

these junctures, and the audio recording does not reflect this non-verbal communication.  



                                                                                                                                                                                                                                                           

The source of this information appears to be the prosecutor's assertions in the State's  



                                                                                                                                                                                                                                                              

opposition to Gosuk's motion to suppress, rather than any evidence presented at the  



                                      

evidentiary hearing.  



                                                                                                                                                                                                                                                            

                                          On appeal, the State acknowledges that the evidentiary basis for the court's  



                                                                                                                                                                                                                                                                       

findings that Gosuk nodded her head is "not readily apparent."  We have reviewed the  



           19        Murray  v.  State ,   12   P.3d  784,  789  (Alaska  App.  2000)  ("Whether  a  defendant  



consented to a search is a question of fact to be determined by the trial court from the totality                                                                                                                                                 

of the circumstances in each case.                                                                      We must accept the superior court's findings on consent  

unless they are clearly erroneous.").   



                                                                                                                                -  11 -                                                                                                                            2696
  


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

record, and we conclude that the court's findings that Gosuk nodded her head on these  

                                                                                                                            



occasions are clearly erroneous.  

                                                    



                    Second, the court's finding that Gosuk gave a verbal consent of "Yes" in  

                                                                                                                                 



response to one of Trooper Eldridge's questions is unsupported by the record.  Here is  

                                                                                                                                  



the pertinent  portion of the court's order, in which the court recounted the critical  

                                                                                                                         



moments supporting Eldridge's contention that Gosuk consented to the search:  

                                                                                                              



                    Here, Trooper Eldridge asked, "Would you mind if we took  

                                                                                                         

                    a look real quick?  We can just pop it open, take a look, and  

                                                                                                          

                    I'll be out of your hair.  It's up to you.  We won't do it in  

                                                                                                             

                    front of anybody either."  Ms. Gosuk then nodded her head  

                                                                                                        

                    and said, "Yes." . . . Trooper Eldridge verified Ms. Gosuk's  

                                                                                                   

                    consent by immediately asking, "So that's okay?" and Ms.  

                                                                                                          

                    Gosuk again nodded her head and said, "Yes."  (Emphasis  

                                                                                                

                    added.)  

                                   



                    As we previously noted, there is no evidentiary basis for these two head  

                                                                                                                             



nods.   Additionally, both the transcript and the audio recording reflect that Gosuk's  

                                                                                                     



verbal response to Eldridge's question, "So that's okay?," was inaudible - not "Yes,"  

                                                                                                                          



as the court found.  And Eldridge did not testify that Gosuk nodded her head or said  

                                                                                                                              



"Yes" in response to that question. Accordingly, the court's finding that Gosuk provided  

                                                                                                                       



verbal assent in response to Eldridge's question - "So that's okay?" - is not supported  

                                                                                                                     



by the record.  

           



                    Third, the court specifically found that, after the trooper and Gosuk went  

                                                                                                                             



out to the airplane, Gosuk nodded her head at a moment when Eldridge testified that she  

                                                                                                                               



actually shook her head and said, "No."  After Eldridge removed Gosuk's tote from the  

                                                                                                                                



airplane, he asked her, "[Y]ou don't mind if I [take] a look, right? . . . [Y]ou don't  

                                                                                                                            



mind?" Thetranscript shows that Gosuk responded, "Uhn-uhn (negative),"and Eldridge  

                                                                                                                       



confirmed that was his understanding. But the court said that Gosuk actually nodded her  

                                                                                                                                



                                                             -  12 -                                                         2696
  


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

head and responded "Mmhmm" - a finding that would seemingly                                                                                                                                   undermine  a finding   



of consent.   



                                       Given these erroneous findings, Gosuk asks us to reverse the superior                                                                                                                    



court's denial of her motion to suppress.                                                                                  In response, the State suggests that, to the                                                                        



extent we are unable to determine whether the court's errors affected its finding that                                                                                                                                                       



Gosuk gave unequivocal consent, we should remand this matter for further findings and                                                                                                                                                         



an additional evidentiary hearing, if necessary.                                                                                         We conclude that a remand for further                                                       



proceedings is appropriate.                 



                                      When the State relies on the consent exception to the warrant requirement,                                                                                                    



the State has the burden to prove both that the defendant actually consented and that this                                                                                                                                                     



consent   was   voluntary   -   i.e.,   unequivocal,   specific,   and   intelligently   given,   and  



                                                                                                                20 

                                                                                                                                                                                                             

uncontaminated by duress or coercion.                                                                                 In other words, acquiescence is not the same  



                                                                                                                                                                                                                                             

as freely given consent, and the State bears the burden of proving that the consent was  



                                                                                                                                                                                                                                               

untainted by any implicit threats or subtle coercion that may have existed under the  



                                           21  

circumstances.                                   



                                                                                                                                                                                                                                              

                                      Here, Gosuk contends that she did not consent, and that in any event, any  



                                                                                                                                                                                                                                                

purported consent that she gave was involuntary.  In particular, Gosuk argues that the  



          20        Gieffels v. State, 590 P.2d 55, 62 (Alaska 1979); Schaffer v. State, 988 P.2d 610, 613  



(Alaska App. 1999) (citing Erickson v. State, 507 P.2d 508, 515 (Alaska 1973)).  



          21       See Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968) (holding that a State's  



burden  to  prove  voluntary  consent  "cannot  be  discharged  by  showing  no  more  than  

                                                                                                                                                                                     

acquiescence to a claim of lawful authority"); United States v. Berry, 670 F.2d 583, 596 (5th  

                                                                                                                             

Cir. 1982) (emphasizing that "acquiescence cannot . . . substitute for free consent"  and  

                                                                                                                                                                                                                                              

acknowledging the potential "implicit threats or subtle coercion" that can occur in an airport  

setting); Schaffer, 988 P.2d at 615-16 (distinguishing between voluntary, uncoerced consent  

                                                   

and mere acquiescence to apparent lawful authority, and holding that the defendant's assent  

for airport security to search her carry-on luggage was nothing more than acquiescence to  

                                                                                                                                            

apparent lawful authority).  



                                                                                                                    -  13 -                                                                                                                 2696
  


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

phrasing of Eldridge's repeated requests to search (                                            e.g., "Would you mind if we took a                                



look?"   or   "You   wouldn't   mind?")  led  to   ambiguous   answers   that   did   not   indicate  



"unequivocal, specific, and intelligently given consent."                                                    



                         Gosuk's concern is well-taken.                                As a judge of this Court has previously                  



noted,  questions   phrased   in   the   form   of   "Do   you   mind   if   .   .   ."   may   be   "a   clever  



investigative technique," but the ambiguity of the defendant's response may inhibit the                                                                        

State's ability to prove "the                        unequivocal  consent that the law requires."                                      22  



                                                                                                                                                          

                         Gosuk also points to the trooper's multiple requests to search and again  



                                                                                                                                                              

argues (as she did in the investigative stop context) that the repeated nature of the  



                                                                                                                                                                

requests to search were coercive, particularly in the face of Gosuk's repeated denial of  



                                                                                                                                                    

any wrongdoing. We agree with Gosuk that her denials of wrongdoing and the trooper's  



                                                                                                                                                                

repeated requests to search are factors that should be considered by the superior court on  



               23  

remand.                                                                                                                                                       

                     As the Supreme Court has noted, a request for consent to search does not  



                                                                                                                                                               

automatically convert a consensual encounter into a seizure "as long as the police do not  



                                                                                                                           24  

                                                                                                                                                           

convey a message that compliance with their request is required."                                                               Likewise, the mere  



                                                                                                                                                                

fact that a person was asked more than once to consent is not necessarily coercive by  



      22     Richmond  v.  State,  2008  WL  1990646,  at  *4  (Alaska  App.  May    7,  2008)  



(unpublished) (Mannheimer, J., concurring) (emphasis in original).  



      23     See State v. O'Neill, 62 P.3d 489, 504 (Wash. 2003) (en banc) (noting  that  "[a]  

                                                                                                                                                             

number of courts have found that repeatedly requesting consent is a factor to consider in  

                                                                                    

assessing the voluntariness of consent"); see also United States v. Raibley, 243 F.3d 1069,  

 1076  (7th  Cir.  2001)  (including  as  a  factor  to  be  considered  whether  the  consent  was  

                                                                                                                                      

immediate or was prompted byrepeated requests bythe authorities); People v. Cardenas, 604  

                                                                                             

N.E.2d 953, 956 (Ill. App. 1992) (agreeing with other courts that "an initial refusal is an  

                                                                                 

important factor in assessing whether a subsequent consent is voluntary").  



      24     Florida v. Bostick, 501 U.S. 429, 435 (1991).  



                                                                            -  14 -                                                                         2696
  


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

itself, but it may become coercive if the police persist in a manner "conveying that they                                                     



                                                               25  

would not take 'No' for an answer."                                 



                                      

                       In sum, given the superior court's clearly erroneous findings with regard  



                                                                                                                                             

to Gosuk's responses, we conclude that a remand is required so that the superior court  



                                                                                                                                              

can reconsider the question of consent in this case.  On remand, the superior court shall  



                                                                                                                                 

take  into  account  the  totality  of  the  circumstances  that  governed  this  interaction,  



                                                                                                                                  

including, but not limited to, the location and tone of the interaction, the ambiguous  



                                                                                                                                        

nature of the trooper's phrasing, the trooper's repeated requests for consent, and Gosuk's  



                                                                                                                                                

actual responses.  The superior court shall then make findings regarding whether the  



                                                                                                                                                 

State has met its burden of proving both that Gosuk consented to the search and that the  



                                            

consent was voluntary.  



                                                                                                                                       

                       As we noted earlier, the court should also reconsider whether the trooper's  



                                                                                                                                                

interaction with Gosuk ever ripened into an investigative stop, and if so, whether the  



                                                                                                                     26  

                                                                                                     

trooper possessed reasonable suspicion for the stop under Coleman. 



            Conclusion  



                                                                                                                                                  

                       We  VACATE  the  superior  court's  ruling  denying  Gosuk's  motion  to  



                                                                                                                                               

suppress,  and  we  REMAND  this  case  for  further  proceedings  consistent  with  this  



                                                                                                                                  

decision.   We are aware that the judge who originally presided over the evidentiary  



                                                                                                                                  

hearing is now retired, and it may be appropriate for the court to hold a new evidentiary  



hearing.  



      25    4 Wayne R. LaFave, Search and Seizure  8.2(b), at 79 (6th ed. 2020) (citations and  



internal quotations omitted).  



      26    Because the superior court concluded that Gosuk was not subjected to an investigative   



stop, the court never reached the question of whether any purported stop was supported by   

reasonable suspicion under Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).  



                                                                      -  15 -                                                                2696
  


----------------------- Page 16-----------------------

                    The superior court shall hold any hearing and transmit its findings and  

                                                                                                                              



decision to this Court within 120 days of this opinion.  This deadline may be extended  

                                                                                                                      



by the superior court for good cause and notification to this Court.  

                                                                                            



                    We retain jurisdiction.  

                                     



                                                             -  16 -                                                         2696
  

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