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James Henry Perozzo v State of Alaska (7/9/2021) ap-2706

James Henry Perozzo v State of Alaska (7/9/2021) ap-2706

                                                                             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 @ akcourts.gov
  



                        IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



JAMES HENRY PEROZZO,  

                                                                                                   Court of Appeals No. A-12967  

                                                    Appellant,                                 Trial Court No. 3AN-16-01090 CR  



                                       v.  

                                                                                                                   O P I N I O N  

STATE OF ALASKA,  



                                                    Appellee.                                           No. 2706 - July 9, 2021  



                          Appeal  from  the  Superior   Court,  Third  Judicial  District,  

                                                                                  

                          Anchorage, Mark Rindner and Michael D. Corey, Judges.  



                          Appearances: Laurence Blakely, Assistant Public Defender, and  

                                                                                        

                          Samantha              Cherot,           Public   Defender,                    Anchorage,               for      the  

                          Appellant. Michal Stryszak, Assistant Attorney General, Office  

                                                                                                                    

                          of  Criminal  Appeals,  Anchorage,  and  Kevin  G.  Clarkson,  

                                

                          Attorney General, Juneau, for the Appellee.  



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

                                                                       

                          Judges.  



                          Judge WOLLENBERG.  



                          This appeal presents the question of whether a law enforcement officer                                                             



conducting a routine traffic stop may request identification from a passenger in the                                                                                



vehicle and then use that identification to run a warrants check on the passenger, absent                                                                     



any case-specific justification for doing so.                                             Because we conclude that this conduct                           


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

violates the Alaska Constitution, we reverse the trial court's denial of James Henry                                                                               



Perozzo's motion to suppress.              



              Underlying facts and proceedings            



                           At approximately 5:40p.m.on February 4,                                              2016, Anchorage Police Officer                    



Michael Farr initiated a traffic stop at 15th Avenue near Sitka Street.                                                                       The vehicle had  



an obscured license plate -                                i.e., the rear license plate was not illuminated and it was                                                  



           1  

dirty.                                                                          

               Perozzo was a passenger in the vehicle.  



                                                                                                                                                                          

                           Officer Farr introduced himself and explained the reason for the stop.  He  



                                                                                                                                                                       

then asked the driver for his driver's license, registration, and proof of insurance.  



                                                                                                                                                                      

                           Farr also asked Perozzo for his identification:  "Sir, do you mind if I see  



                                                                                                                                                                                  

your I.D. real quick?" Perozzo asked why, stating that he was not doing anything wrong.  



                                                                                                                                                                   

Farr replied, "I'm just asking to see your I.D., that's all."  At that point, Perozzo turned  



                                                                         

over his Alaska identification card.  



                                                                                                                                                            

                           Farr returned to his patrol car and ran both the driver's and Perozzo's  



                                                                                                                                                                                  

names through the Alaska Public Safety Information Network (APSIN) database.  Farr  



                                                                                                                                                                    

discovered that there was an outstanding search warrant for Perozzo's DNA. Farr called  



                                                                                                                                                                          

the detective who had issued the "locate" for Perozzo regarding the warrant, and the  



                                                                                                                                                                          

detective instructed Farr to detain Perozzo and take him to the police station, so that the  



                                                                                                                                                            

detective could execute the warrant by obtaining buccal swabs of Perozzo's DNA.  



                                                                                                                                                              

                           Farr called for backup, and another officer, Anchorage Police Sergeant  



                                                                                                                                                                   

Shaun Henry, arrived on the scene.   Both officers approached the vehicle in which  



                                                                                                                                       

Perozzo was sitting, and Farr ordered Perozzo to exit the vehicle.  



       1      Anchorage Municipal Code (AMC) 09.44.040; AMC 09.44.060.  



                                                                                   - 2 -                                                                               2706
  


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

                                    According   to   Farr's  later   testimony,   Perozzo   then   reached   toward   his  



waistband. Sergeant Henry took control of Perozzo, escorted him to the back of the car,                                                                                                                                          



and handcuffed him.                                        



                                    A pat-down search of Perozzo revealed an empty holster on Perozzo's                                                                                                                       right  



side, and the police found a handgun in between the driver and passenger seats of the                                                                                                                                             



vehicle.   Perozzo acknowledged that the firearm was his, and he told Farr that he had                                                                                                                                           



removed the gun when he first got in the car because it was uncomfortable to wear along                                                                                                                                     



with the seatbelt.                                 The police subsequently learned that Perozzo had a prior felony                                                                                                       



conviction.  



                                    Based on this conduct, a grand jury indicted Perozzo on one count of third-                                                                                                             



degree misconduct involving weapons (for being a felon in possession of a concealable                                                                                                                     



                        2  

                                                                                                                                                                                                                             

firearm).                    In addition, the State charged Perozzo by information with one count of fifth- 



                                                                                                                                                                                                                                 

degree misconduct involving weapons (for failing to immediately inform the police that  



                                         3  

                                              

                     

he was armed). 



                                                                                                                                                                                                                  

                                    Prior to trial, Perozzo's attorney filed a motion to suppress the evidence  



                                                                                                                                                                                                                                

seized as a result of the traffic stop.   In this motion, Perozzo's attorney argued that  



                                                                                                                                                                                                                    

Officer Farr had impermissibly expanded the scope of the traffic stop by asking Perozzo,  



                                                                                                                                                                                                         4  

                                                                                                                                                                                                              

a passenger, for his identification and then conducting a warrants check.                                                                                                                                       Perozzo's  



                                                                                                                                                                                                                                 

attorney argued that these unlawful actions led directly to the detention of Perozzo and  



                                                                                                

to the discovery of the firearm and holster.  



         2        AS 11.61.200(a)(1).  



         3        AS 11.61.220(a)(1)(A).  



         4        Perozzo also argued that the stop was pretextual, an   argument that the trial court  



rejected.  Perozzo does not challenge this ruling on appeal.  



                                                                                                               - 3 -                                                                                                           2706
  


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

                    Officer  Farr  was  the  sole  witness  at  the  evidentiary  hearing.                                    Farr  

                                                                                                                              



acknowledged that his request for Perozzo's identification bore no relationship to the  

                                                                                                                                



traffic stop.  But he explained that, as a matter of routine practice, he regularly requests  

                                                                                                                         



identification from both drivers and passengers during traffic stops.  Farr testified that  

                      



if a passenger refuses to provide identification, and if he (Farr) has no reason to believe  

                                                                                                                          



that the passenger has committed a traffic infraction or a crime, he "let[s] it go."  But he  

                                                                                                                                  



did not "let it go" in this case because Perozzo "never told me that he didn't want to give  

                                                                                                                               



me his driver's license."  

                         



                    Following the evidentiary hearing, the trial court denied Perozzo's motion  

                                                                                                                           



to suppress.   The court found that Farr's request for Perozzo's identification did not  

                                                                                                                                



impermissibly expand the traffic stop. The court concluded that Farr could properly ask  

                                                                                                                                



Perozzo for his identification and that, in any event, Perozzo had voluntarily given it to  

                                                                                                                                  



him.  



                    Perozzo's case proceeded to trial.  Relying on testimony that neither Farr  

                                                                                                                               



nor the driver had noticed a gun in the center console area until after Perozzo had been  

                                                                                                                              



removed from the vehicle, the prosecutor argued that Perozzo possessed the firearm at  

                                                                                                                                  



the time of the traffic stop and that he only removed it from the holster when he was  

                                                                                                                               



ordered out of the vehicle.  The jury convicted Perozzo of both charged counts.  

                                                                                                               



                    On  appeal,  Perozzo  renews  his  argument  that  the  police  unlawfully  

                                                                                                                    



exceeded the scope of the traffic stop, and that the evidence pertaining to the firearm  

                                                                                                                          



should have been suppressed.  For the reasons explained in this opinion, we agree.  

                                                                                                                      



           Whyweconcludethat the police were precluded fromrequestingPerozzo's  

                                                                                                            

          identification and using that identification to run a warrants check  

                                                                                                         



                    Both theFourth AmendmenttotheUnitedStates Constitution andArticleI,  

                                                                                                                                   



Section 14 of the Alaska Constitution prohibit unreasonable searches and seizures by the  

                                                                                                                                 



                                                               - 4 -                                                          2706
  


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

                      5  

government.   A seizure of a person occurs whenever a government officer engages in                                                              



a show of official authority such that a reasonable person would not believe that he or                                             



                                 6  

she is free to leave.                



                                                                                                                                                   

                       The United States Supreme Court has held that a traffic stop qualifies as a  



                                                                                                                                      

"seizure" of both the driver and any passengers, since even a passenger would conclude  



                                                                                                                                                 

that an officer was "exercising control to the point that no one in the car was free to  



                                                           7  

                                      

depart without police permission": 



                                                                                                             

                                  Atrafficstop necessarily curtails thetravel apassenger  

                                                                                                                      

                       has chosen just as much as it halts the driver, diverting both  

                                                                                                                        

                       from the stream of traffic to the side of the road, and the  

                                                                                                                

                       police activity that normally amounts to intrusionon "privacy  

                                                                                                        

                       and personal security" does not normally . . . distinguish  



                                                                           [8]  

                                                                

                       between passenger and driver. 



                                                                                                                                           

                       Because traffic stops are considered "a species of investigative stop rather  



                                    9 

                         

than a formal arrest,"  they are generally evaluated under the principles enunciated by  



      5    See Cowles v. State, 23 P.3d 1168, 1170 (Alaska 2001).  



      6     Waring v. State, 670 P.2d 357, 364 (Alaska 1983); Castle v. State,  999 P.2d 169, 171  



(Alaska App. 2000); see Terry v. Ohio, 392 U.S. 1, 17 (1968) ("It must be recognized that  

                                                                                                                         

whenever a police officer accosts an individual and restrains his freedom to walk away, he  

                                                                  

has  'seized'  that  person.");  see  also  Florida  v.  Bostick,  501  U.S.  429,  436  (1991)  

                                                                         

(recognizing that the appropriate inquiry in determining whether a seizure has occurred is  

"whether a reasonable person would feel free to decline the officers' requests or otherwise  

terminate the encounter").   



      7    Brendlin v. California, 551 U.S. 249, 255-57 (2007).  



      8    Id. at 557 (citing  United States v. Martinez-Fuerte, 428 U.S. 543, 554 (1976)).  



      9    Brown v. State, 182 P.3d 624, 625 (Alaska App. 2008); see  also Simmons v. State, 435  



P.3d 975, 977 (Alaska App. 2018) ("[I]n a routine traffic stop, a  police officer is authorized  

to conduct a limited seizure for a limited purpose.").  



                                                                      - 5 -                                                                  2706
  


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

                                                                                                                           10  

the United States Supreme Court in                               Terry v. Ohio             and related cases.                  Under  Terry, a  



traffic stop "must be temporary and [must] last no longer than is necessary to effectuate                                                



                                           11  

the purpose of the stop."                                                                                                      

                                               "The stop becomes unreasonable - and thus constitutionally  



                                                                                                                                                  

invalid  -  if  the  duration,  manner,  or  scope  of  the  investigation"  exceeds  "the  



                                                                                                 12  

                                                                                                     

                                                                                     

circumstances that justified the stop in the first place." 



                                                                                                                                                  

                        The basic essentials of a traffic stop are relatively easy to discern with  



                                                                                                                                               

respect to the driver.  When an officer stops a driver for a traffic violation, "the officer  



                                                                                                                                             

may ask the motorist to produce routine driving documents" - including the driver's  



                                                                                                 13  

                                                                                                                                                        

license,  proof  of  insurance,  and  vehicle  registration.                                           A  police  officer  may  run  a  



                                                                                                                                                    

computer check to verify the validity of the driver's documents - in order to ensure that  



                                                                                                                                         

the  driver  is  authorized  to  continue  driving  -  and  doing  so  does  not  generally  



                                                                                                                       14  

                                                                                                                                           

                                                                                                                            Even a warrants  

unreasonably extend the scope or duration of a valid traffic stop. 



      10    Berkemer v. McCarty, 468 U.S. 420, 439 (1984) (citing Terry, 392 U.S. 1).  



      11    Brown, 182 P.3d at 625 (alteration in original) (quoting Florida v. Royer, 460 U.S.  



                                              

491, 500 (1983) (plurality opinion)).    



      12  

                   

            Id. (citing Royer, 460 U.S. at 500, and United States v. Brignoni-Ponce, 422 U.S. 873,  

881 (1975)).  



      13    Clark v. Anchorage, 112 P.3d 676, 678 (Alaska App. 2005) (quoting United States v.  



                                                                                                                                      

Maldonado ,  356  F.3d  130,  134  (1st  Cir.  2001)); see  also  AS  28.15.131(a)  (requiring  a  

                                                                                       

licensee to carry a driver's license while driving a motor vehicle and to present the license  

        

to a peace officer upon demand); AS 28.10.081(b) (requiring the same with respect to vehicle  

registration); AS 28.22.019(a) (requiring the same with respect to proof of insurance).  



      14  

                                                                                                                                                       

            Fallon v. State, 221 P.3d 1016, 1019 (Alaska App. 2010) ("By calling dispatch to  

                                                                                                                        

check on the status of the license, [the trooper] did not unreasonably expand the scope or  

                                                                                                                        

duration of the stop."); see also Brown, 182 P.3d at 629 (recognizing that a routine traffic  

                                                                                                

stop for an equipment violation generally includes "a request for the motorist's driver's  

                                                                                                                                        

license, registration, and proof of insurance; a computer or radio check to verify the validity  

                                                                    

of these documents; and the issuance of an appropriate citation or warning" (citing 4 Wayne  

                                                                                                                                   (continued...)  



                                                                         -  6 -                                                                   2706
  


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

check for the driver may reasonably be viewed as part of the traffic stop, "as long as this                                                         

check [is] done expeditiously, so as not to significantly extend the duration of the stop."                                                            15  



                                                                                                                                                       

                        But the rationale for these "routine" checks is significantly diminished as  



                                                                                                                                              

to a passenger who has been seized solely by virtue of being present in a vehicle subject  



                                                                                                                                                  

to a traffic stop - particularly for a minor equipment violation like a dirty or non- 



                                                 

illuminated license plate.  



                                                                                                                                                     

                        It is undisputed in this case that Officer Farr did not suspect Perozzo of any  



                                                                                                                                                 

wrongdoing when he requested his identification.   Nor did Farr testify to any case- 



                                                                                                                                                        

specific safety concerns or need to obtain Perozzo's identity.  Rather, he testified that it  



                                                                                                                        

was his regular practice to request identification from passengers.  



                                                                                                                                                    

                        The question we must therefore confront in this appeal is whether the  



                                                                                                                                                   

Alaska Constitution permits an officer to request identification from a passenger and then  



                                                                                                                                                      

use that identification  to  run  a warrants check,  absent any reasonable suspicion of  



                                                                                                                                 

wrongdoing by the passenger, or other particularized safety concerns or circumstances  



                                                                                             

indicating a legitimate need to obtain a passenger's identification.  



      14    (...continued)  



R. LaFave, Search and Seizure:  A Treatise on the Fourth Amendment  9.3, at 378 (4th  

                                                          

ed. 2004))).  



      15    Brown, 182 P.3d at 629 (citing 4 LaFave, Search and Seizure  9.3(c), at 381-82); see  

                                                                                                                    

also 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment  9.3(c),  

                                                                               

at 519-20 (6th ed. 2020) (recognizing that "there are at least some rational arguments that can  

be made for retaining the warrant check routine as to a person who apparently has committed  

                                                                                                                                   

a traffic offense" since, for one thing, "the warrant check makes it possible to determine  

    

whether the apparent traffic violator is wanted for one or more previous traffic offenses"  

                                                                                  

(emphasis in  original)); see also Rodriguez v. United States, 575 U.S. 348, 355 (2015)  

                                                                              

(noting that typical inquiries incident to a traffic stop involve "checking the driver's license,  

determining whether there are outstanding warrants against the driver, and inspecting the  

automobile's registration and proof of insurance" (citing Delaware v. Prouse, 440 U.S. 648,  

                                                                  

658-60 (1979))).  



                                                                         -  7 -                                                                   2706
  


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

                           Neither the United States Supreme Court nor the Alaska courts have yet                                                                         



addressed whether an officer's request for a passenger's identification and a subsequent                                                                 



warrants check fall within the scope of a "routine" traffic stop, and therefore may be                                                                                     

done without a reasonable suspicion of criminality or other particularized justification.                                                                                    16  



                                                                                                                                                              

                           But over time, the United States Supreme Court has expanded the authority  



                                                                                                                                                                        

of police officers over both drivers and passengers during routine traffic stops.   For  



                                                                                                                                                                 

instance,  the Supreme Court has held  that police officers may inquire into  matters  



                                                                                                                                                                             17  

                                                                                                                                                                                  

unrelated to the stop - as long as the inquiry does not unreasonably extend the stop. 



                                                                                                                                                                          

The Court has also authorized officers to order both drivers and passengers to exit the  



                                                                                                          18  

                                                                                         

vehicle, even absent a particularized safety concern. 



       16     See Lovett v. State, 2017 WL 2609219, at *3 & n.9 (Alaska App. June 14, 2017)   



(unpublished) ("[T]he State argues that we should join those jurisdictions which have held  

that  the  police  may request                           identification  and  run  background  checks  on  passengers  in  

stopped vehicles as a matter of course, so long as doing so does not unnecessarily extend the                                                                

duration of the stop.  We have no reason to decide that issue in this case[.]").  



       17     Compare Illinois v. Caballes, 543 U.S. 405 (2005) (holding that use of a narcotics- 

                                                                                                                                                          

detection dog to sniff around the exterior of motorist's vehicle during the temporal duration  

                                                                                      

of the routine traffic stop did not infringe on motorist's Fourth Amendment rights), with  

      

Rodriguez, 575 U.S. 348 (holding that extending an otherwise-completed traffic stop in order  

to conduct a dog-sniff was impermissible under the Fourth Amendment, absent reasonable  

                                             

suspicion); see also Arizona v. Johnson, 555 U.S. 324, 333 (2009) ("An officer's inquiries  

into matters unrelated to the justification for the traffic stop . . . do not convert the encounter  

                                                         

into something other than a lawful seizure, so long as those inquiries do not measurably  

                                                                   

extend the duration of the stop."); Brown, 182 P.3d at 625, 632 (recognizing that the Fourth  

                                                                                                                                    

Amendment offers little protection to motorists who consent to a request to search their  

                                                                                                

vehicle,  even  when  the  officer  has  no  reason  to  suspect  that  the  motorist  is  carrying  

contraband); 4 LaFave, Search and Seizure  9.3(b), at 510-11.  



       18     See Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (authority under federal law  



to order the driver out of the car); Maryland v. Wilson , 519 U.S. 408, 410 (1997) (authority  

                                                  

under federal law to order passengers out of the car).  Compare Erickson v. State, 141 P.3d  

                                                                                                                                                               

                                                                                                                                                      (continued...)  



                                                                                   -  8 -                                                                              2706
  


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

                          In line with this authority, all federal circuit courts to address the issue have                                                   



concluded that officers may request a passenger's identification during a traffic stop and                                                                      



                                                                                                                                 19  

run a warrants check, even absent an independent basis for doing so                                                                                           

                                                                                                                                    - at least as long  



                                                                                                                            20  

                                                                                                                                                           

                                                                                                                                 Several state courts  

as doing so does not unreasonably extend the duration of the stop. 



                                                                                                                                                     

have reached similar conclusions, grounding their decisions in (1) generalized concerns  



       18    (...continued)  



356, 359 (Alaska App. 2006) (holding that the officer had legitimate case-specific reasons  

                                                                                                                                            

for ordering Erickson, a passenger, out of the vehicle during a traffic stop); State v. Smith,  

                                                                                                                                                    

637 A.2d 158 (N.J. 1994) (declining to extend Mimms to passengers as a matter of state law).  

        

We have not yet decided whether the Alaska Constitution authorizes officers to order drivers  

and/or passengers to exit a vehicle during a traffic stop, even absent a case-specific reason  

                                                                                                      

for doing so, and the State does not ask us to do so here. See Simmons v. State, 435 P.3d 975,  

977 n.1 (Alaska App. 2018).  



       19  

                                                                                                                                                                

             See United States v. Fernandez, 600 F.3d 56, 61 (1st Cir. 2010) ("Although  the  

                                                                                                                                                                   

[Supreme]  Court  has  not  explicitly  held  that  an  inquiry  into  a passenger's  identity  is  

                                                                                        

permissible, its precedent inevitablyleads to that conclusion." (emphasis in original)); United  

                                                                                                                                                  

States v. Soriano-Jarquin, 492 F.3d 495, 500 (4th Cir. 2007) ("If an officer may 'as a matter  

                                                                                                                                                   

of course' and in the interest of personal safety order a passenger physically to exit the  

                                                                                                                             

vehicle,  he  may  surely  take  the  minimally  intrusive  step  of   requesting  passenger  

                                                                                               

identification." (internal citation omitted)); see also United States v. Pack, 612 F.3d 341, 351  

(5th Cir. 2010) (holding that officers do not need reasonable suspicion to ask a passenger for  

                                                                                                                          

his  or  her  identification  during  a  lawful  traffic  stop  and  run  a  computer  check  on  the  

passenger's license and background);  United States v. Smith, 601 F.3d 530, 542 (6th Cir.  

                                                                                                                                                          

2010) (same);  United States v. Sanford, 806 F.3d 954, 959 (7th Cir. 2015) (same); United  

                                                                                              

States  v.  Cloud,  594  F.3d  1042,  1044  (8th  Cir.  2010)  (same);  United  States  v.  Diaz- 

Castaneda, 494 F.3d 1146, 1152-53 (9th Cir. 2007) (same); United States v. Rice, 483 F.3d  

 1079, 1084 (10th Cir. 2007) (same); United States v. Purcell, 236 F.3d 1274, 1278-79 (11th  

                                     

Cir. 2001) (same).  But see United States v. Landeros, 913 F.3d 862, 870 (9th Cir. 2019)  

                                                                                                                                 

(holding that an officer may not order a passenger to identify himself absent particularized  

suspicion that he has or is engaged in criminal activity).  



      20     See, e.g., Fernandez, 600 F.3d at 61-62 (discussing United States v. Henderson, 463  

                               

F.3d 27, 46-47 (1st Cir. 2006)).  



                                                                              -  9 -                                                                         2706
  


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

                                21                                                                                                                   22  

for officer safety;                 (2) the need to create a record of witnesses to the traffic stop;                                                   or (3)   



a determination that the request is simply part of (and did not unreasonably extend) the                                                                      



investigation   into   the   traffic   violation   and   does   not   constitute   a   separate   Fourth  

Amendment event.                    23  



                                                                                                                                                

                         Other state courts, however, have concluded that officers are prohibited  



                                                                                                        

from requesting identification from passengers during a traffic stop, absent reasonable  



                                                                                                                                                       

suspicion of wrongdoing or some other case-specific justification beyond general officer  



                               24  

                                   

safety concerns. 



      21     See, e.g., State v. Williams, 590 S.E.2d 151, 154 (Ga. App. 2003);                                                    Cade v. State, 872  



N.E.2d  186,  189  (Ind.  App.  2007);  State  v.  Martinez,  424  P.3d  83,  89-90   (Utah  2017)  

(collecting cases).  



      22     See, e.g., State v. Griffith, 613 N.W.2d 72, 82 (Wisc. 2000).  



      23  

                                                                                                                                               

             See, e.g., State v. Ybarra, 751 P.2d 591, 592 (Ariz. App. 1987); People v. Vibanco,  

                                                                                                                                                             

 151 Cal. App. 4th 1, 14, 60 Cal. Rptr. 3d 1, 10-11 (Cal. App. 2007); People v. Bowles, 226  

                                                                                                                                                  

P.3d 1125 (Colo. App. 2009); Loper v. State , 8 A.3d 1169, 1173 (Del. 2010); People v.  

                                                                                                                              

Harris, 886 N.E.2d 947 (Ill. 2008); State v. Smith, 683 N.W.2d 542, 547-48 (Iowa 2004);  

State v. Landry, 588 So.2d 345, 345-47 (La. 1991); State v. Gutierrez, 611 N.W.2d 853, 858  

                                                

(Neb. App. 2000); Cortes v. State, 260 P.3d 184, 190 (Nev. 2011).  



      24  

                                             

             See, e.g., People v. Spicer, 157 Cal. App. 3d 213, 221, 203 Cal. Rptr. 599, 604-05  

                                                                                             

(Cal. App. 1984) (holding that an officer unlawfully requested the passenger's license during  

a traffic stop for drunk driving, where there was no indication that the passenger would be  

                                                                                                                                                 

given custody of the car and the officer did not explain to the passenger his reason for  

                                                                                                                                                           

requesting her driver's license); Commonwealth v. Alvarez, 692 N.E.2d 106, 109 (Mass. App.  

 1998) (holding that an officer, who testified that he asked the defendant, a vehicle passenger,  

                                                                                                       

for his license out of "routine practice" and without any objective basis for suspecting the  

                         

passenger of wrongdoing, violated the Massachusetts Constitution); State v. Johnson, 645  

                                                                                                                              

N.W.2d 505, 510 (Minn. App. 2002) (holding that, in the absence of reasonable suspicion  

                                                                                                                                                

of  criminal  wrongdoing,  the  officer  had  no  authority to  expand  the  stop  by taking  the  

                                                                                                                               

passenger's identification and running a warrants check on him); State v. Affsprung, 87 P.3d  

 1088, 1094-95 (N.M. App. 2004) (holding, under the Fourth Amendment, that a generalized  

                                                                                                                                           (continued...)  



                                                                            -  10 -                                                                        2706
  


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

                        For instance, in               Commonwealth v. Alvarez                        , the Massachusetts Appeals           



 Court held that a police officer may not request a passenger's identification without                                                       



reasonable suspicion of criminal activity,                                    or   some other             case-specific circumstance   



                                      25  

                                                                                                                                               

justifying the inquiry.                    The court reasoned that, once the driver produces a valid license  



                                                                                                                                                  

 and registration during a routine traffic stop (e.g., for speeding), an officer is able to issue  



                                                                                                                                  26  

                                                                                                                                                 

 a  traffic  citation  and  must  then  allow  the  car  to  continue  on  its  way.                                                    The  court  



                                                                                                                                   

 characterized the officer's testimony that he regularly requested passenger identification  



                                                                                                                                       

during   routine   traffic   stops   -  even   absent   any   reason   to   suspect   passenger  



                                                                                                                                     

wrongdoing - as "the sort of dragnet interrogation" that the Massachusetts Constitution  



                 27  

prohibits.                                                                                                                                             

                      The court further suggested that this type of inquiry constitutes "the sort of  



      24    (...continued)  



concern for officer safety, without more, was insufficient to justifyrequesting the defendant's  

                                                                                                               

identification and conducting a warrants check, where the defendant was simply a passenger  

                                                                                                                                        

in a vehicle stopped for a faulty license plate light); State v. Thompkin, 143 P.3d 530, 534-36  

                                                                                                                       

 (Or. 2006) (holding that the defendant, a passenger in a vehicle stopped for failing to signal  

a turn, was unlawfully seized under the Oregon Constitution when the officer requested and  

                                        

retained  his  identification  to  run  a  records  check,  without  any  reasonable  suspicion  of  

                                                                                                                 

criminal activity); State v. Rankin, 92 P.3d 202, 206-07 (Wash. 2004) (en banc) (holding that  

                                                           

the  Washington  Constitution  precludes  officers  from  requesting  identification  from  a  

                                                                                                                                                        

passenger for investigative purposes, absent an independent basis for making the request).  



      25    Commonwealth  v.  Alvarez,  692  N.E.2d  106,  108  (Mass.  App.  1998)  (noting  the  

                                                                                                                                       

 absence of any testimony by the officer that he had reason to fear for his safety or that the  

                                                                                                                                         

passenger was in need of some assistance), cited favorably in Commonwealth v. Sinforoso,  

                                             

 749 N.E.2d 128, 131 n.2 (Mass. 2001).  



      26    Alvarez , 692 N.E.2d at 108.  



      27    Id. (citing Commonwealth v. Torres, 674 N.E.2d 638, 641-43 (Mass. 1997) (holding  



that an officer may not interrogate passengers unless the officer has "reasonable suspicion,  

                                  

grounded in specific, articulable facts" that a particular passenger is involved in criminal  

                                       

 activity or "other suspicious conduct")).  



                                                                        -  11 -                                                                   2706
  


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

request uncomfortably associated with authoritarian societies and most commonly made                                                                     

of persons belonging to a racial or ethnic minority."                                            28  



                                                                                                                                                             

                         Similarly, in State v. Rankin, the Washington Supreme Court held that the  



                                                                                                                                          

Washington Constitutionprohibits anofficer fromrequestingapassenger'sidentification  



                                                                                                                                                               29  

                                                                                                                                                                    

                                                                                                                                                          

during a lawful traffic stop unless the officer has an independent basis for doing so. 



                                                                                                                                                         

Rankin  was a consolidated case.   In  Rankin,  an officer initiated a traffic stop after  



                                                                                         30  

                                                                                                                                                                    

observing a car "roll over a marked stop line."                                                Rankin was a passenger in the car.  



                                                                                                                                                           

During the stop, the officer recalled that he had arrested Rankin approximately one  



                                                                                                                                              

month earlier for possession of a stolen vehicle and possession of controlled substances,  



                                                                                                                                                       

but the officer did not observe Rankin engage in any criminal behavior during this traffic  



         31  

stop.                                                                                                                                                    

                The  officer  asked  the  driver  and  Rankin  for  their  identifications  and  both  



                                                                                                                                                     

complied. Asubsequentwarrants checkrevealedthatRankin had an outstanding warrant  



                                                                                                                                                             

for his arrest.  The officer placed Rankin under arrest and, after a search incident to the  



                                                                                                                                             32  

                                                                                                                                                     

                                                                                                                                

arrest, the deputy found a knife and methamphetamine on Rankin's person. 



      28    Id.  at 109; see also State v. Affsprung                               , 87 P.3d 1088, 1094-95 (N.M. App. 2004)  



(holding  that  an  officer  must  have  an  independent  reason  -  "more  than  a  generalized  

concern about officer safety" - in order to request a passenger's identification during a           

routine  traffic  stop,  and  that  holding  otherwise  would  "open[]  a  door  to  the  type  of  

indiscriminate, oppressive, fearsome authoritarian practices and tactics of those in power   

than the Fourth Amendment was designed to prohibit"), cert. denied, 135 N.M. 320 (N.M.  

2004).  



      29     State v. Rankin, 92 P.3d 202, 203, 207 (Wash. 2004) (en banc).  



      30    Id. at 203.  



      31    Id.  



      32    Id. at 204.  



                                                                            -  12 -                                                                       2706
  


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

                      In the companion case,  State v. Staab                       , an officer stopped a vehicle for an  



                                                                                            33  

unlit license plate; Staab was a passenger in the vehicle.                                                                              

                                                                                                 The officer asked both the  



                                                                                                                                       

driver  and  Staab  to  produce  their  driver's  licenses.                                     When  Staab  removed  his  



                                                                                                                                  

identification card from his shirt pocket, a bag of white powder fell out.  The officer  



                                                                                                                                    

determined that there were no existing warrants for Staab, but arrested him on the belief  



                                                                                                34  

                                                                                                    

that the bag contained cocaine, which Staab later admitted. 



                                                                                                                       

                      The Washington Supreme Court held that both requests for identification  



                                                                                                                                

were  impermissible.                 Noting  that  the  Washington  Constitution  contains  an  explicit  



                                                                                                                                    

privacy clause - "[n]o person shall be disturbed in his private affairs, or his home  



                                                        35 

invaded, without authority of law"                                               

                                                            - the court held that an officer may not "request  



                                                                                                                         

identification from a passenger for investigatory purposes unless there is an independent  



                                               36  

                                                   

                                 

basis to support the request." 



                      The court acknowledged having previously held that an officer's request  



                                                                                                                  37  

                                                                                                                                        

                                                                                                                      However, the  

for identification from a pedestrian does not alone constitute a seizure. 



                                                                                                                                        

court noted that "a passenger faced with undesirable questioning by the police does not  



                                                                                                                     38  

                                                                                                   

have the realistic alternative of leaving the scene as does a pedestrian."                                                              

                                                                                                                          Rather, the  



                                                                                                                                          

court observed that a passenger would be forced to "abandon his or her chosen mode of  



     33    Id.  



     34    Id.  



     35    Wash. Const. art. I,  7.  



     36    Rankin, 92 P.3d at 206-07.  



     37    Id. at 206 (discussing State v. Young, 957 P.2d 681, 687 (Wash. 1998) (en banc)).  



     38    Id.  



                                                                 -  13 -                                                             2706
  


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

transportation and, instead, walk away into a frequently foreign location thereby risking                                                

the departure of his or her ride while away."                               39  



                                                                                                                                               

                       Wearepersuaded that thedecisions by Massachusetts and Washington,and  



                                                                                                                                      

other similar cases, more closely align with the heightened privacy protections afforded  



                                                                                                                                                

by the Alaska Constitution.   Like Washington, Alaska has an explicit guarantee of  



                                                            40  

                                                                                                                                                

privacy under our state constitution.                            In part because of this privacy protection, both the  



                                                                                                                                                 

Alaska Supreme Court and this Court have repeatedly interpreted Article I, Section 14  



                                                                                                                                              

of  the  Alaska  Constitution  to  provide  greater  protection  to  Alaskans  than  the  



                                                                                          41  

                                                                     

corresponding provisions of the Fourth Amendment. 



                                                                                                                                               

                       Our decision in Brown v. State is emblematic of the broader scope of our  



                                                                                      42  

                                                                                                                                       

search and seizure clause in the traffic stop context.                                    In Brown, we held that an officer's  



                                                                                                                                               

questions  to  a  driver  about  other  potential  crimes,  and  an  officer's  requests  for  



                                                                                                                                        

permission to conduct a search, during a routine traffic stop are "significant events"  



      39   Id. (citing Wayne R. LaFave, The Present and Future Fourth Amendment, U. Ill. L.  



                                                                                          

Rev. 111, 114-15 (1995)).  Rankin remains good law.  See State v. Pettit, 251 P.3d 896, 898  

                                                                                                                                               

(Wash.  App.  2011)  (recognizing,  in  reliance  on  Rankin,  that  the  privacy  clause  of  the  

                                                                                                              

Washington Constitution "prohibits law enforcement officials from requesting identification  

          

from passengers for investigative purposes unless there is an independent basis that justifies  

                                                                                                                                                

that request"); see also State v. Demmon, 2018 WL 5985324, at *3 (Wash. App. Nov. 13,  

2018) (unpublished).  



      40   See Alaska Const. art. I,  22 ("The right of the people to privacy is recognized and  



shall not be infringed.").  



      41   See Anchorage Police Dep't Emp. Ass'n v. Anchorage, 24 P.3d 547, 550 (Alaska  



2001) ("Alaska's search and seizure clause is stronger than the federal protection because  

article I, section 14 is textually broader than the Fourth Amendment, and the clause draws  

                                                     

added strength from Alaska's express guarantee of privacy."); Brown v. State, 182 P.3d 624,  

                                                                                   

633 & n.13 (Alaska App. 2008) (collecting cases interpreting Alaska's search and seizure  

                                                                                                                       

clause more broadly than the Fourth Amendment).  



      42   Brown, 182 P.3d 624.  



                                                                     -  14 -                                                                 2706
  


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

                                                                                                           43  

under Article I, Section 14 of the Alaska Constitution.                                                         We further held that, under the                        



circumstances of Brown's case, the officer was prohibited from requesting Brown's                                                                           



permission to conduct a search that was "(1) unrelated to the basis for the stop and (2)         



                                                                                                                                  44  

                                                                                                                                                                     

not otherwise supported by a reasonable suspicion of criminality."                                                                    We concluded that,  



                                                                                                                                                                 

because of the frequency of traffic violations and the inherent coerciveness of traffic  



                                                                                                                                                                          

stops - and the attendant likelihood that motorists will accede to an officer's request to  



                                                                                                                                                                    

search -the permissive rules governing traffic stops under the Fourth Amendment were  



                                                                                                                                                                      

insufficient to protect Alaska motorists since they "create[d] the potential risk that law  



                                                                                                                                                                     

enforcement  officers  will  compromise  the  privacy  of  many  citizens,"  without  any  



                                           45  

                                      

grounds for doing so. 



                                                                                                                                                                           

                           We similarly conclude that the request for a passenger's identification is a  



                                                                                                                                                                    

significant event under the Alaska Constitution - and that an officer is precluded from  



                                                                                                                                                            

requesting apassenger'sidentificationandthen using thatidentificationto runawarrants  



                                                                                                                                                                       

check when the officer's request is unrelated to the basis for the stop and the officer has  



                                                                                                                                                   

no other case-specific justification for doing so.  A routine identification and warrants  



                                                                                                                                                               

check on a passenger, without any basis for doing so, runs the risk of "turning a routine  



                                                                                                                                                                      

traffic stop into a 'fishing expedition for criminal activity unrelated to the stop'" - and  



                                                                                                                        46  

                                                                                                         

thus systematically infringing on Alaskans' right to privacy. 



       43    Id. at 626.  



       44    Id.  



       45    Id.  



       46    Hornberger v. Am. Broadcasting Cos.                                        , 799 A.2d 566, 614 (N.J. Super. App. Div.   



2002) (quoting State v. Carty, 790 A.2d 903, 905 (N.J. 2002));                                                        see also 4 Wayne R. LaFave,  

Search and Seizure:  A Treatise on the Fourth Amendment   9.3(c), at 528 (6th ed. 2020)  

("Putting aside those cases where the warrant check was upheld because [it was] connected  

                                                                                                                                                   (continued...)  



                                                                                 -  15 -                                                                            2706
  


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

                                         The State raises several arguments as to why we should reach a different   



result in this case.                   



                                         First, the State argues that permitting officers to request identification and                                                                                                                                     



perform background checks on passengers in stopped vehicles serves important officer                                                                                                                                                              



safety concerns, by allowing an officer to take steps to prevent an encounter fromturning                                                                                                                                                        



violent. We recognize the significant threats to officer safety that can arise during traffic                                                                                                                                                       



stops and agree that officer safety is an important concern. But Perozzo was a passenger                                                                                                                                              



in a vehicle that was pulled over in the early evening, on a busy road in Anchorage, for                                                                                                                                                                      



an equipment violation -                                                       i.e., an obscured license plate. Officer Farr did not testify that                                                                                                          



he had any particularized concerns for his safety, and the trial court made no factual                                                                                                                                                           



                                                                                                                    47  

findings to support such a conclusion.                                                                                     



                                                                                                                                                                                                                                                                   

                                         Indeed, Farr testified that he requests identification from passengers as a  



                                                                                                                                                                                                                                                         

matter of routine practice in every traffic stop - and that if Perozzo had refused to give  



                                                                                                                                                                                                                                                            

him  his  identification,  he  would  have  "let  it  go."                                                                                                          Under  these  circumstances,  we  



                                                                                                                                                                                                                                                                

conclude that a generalized concern for officer safety, without more, is insufficient to  



                                                                                                                                                                                                           48  

                                                                                                                                                                                         

override the rights of passengers in relation to routine traffic stops.                                                                                                                                          



          46         (...continued)  



with a driver's license check on a passenger who was to assume the driving duties, it is to be  

                                                                                                                                                                                        

doubted  whether  there  is  any  valid  reason  for  automatic  warrant  checks  on  mere  

                                                                                                

passengers.").  



          47         Cf. Erickson v. State, 141 P.3d 356, 359, 361-62 (Alaska App. 2006) (recognizing that  



an officer has the authority to order a passenger out of the vehicle if the officer's action is  

                                                                                                                                                                                                                                              

reasonably related to particularized concerns for the officer's safety, and once the passenger  

                                 

is out of the vehicle, the officer may subject the passenger to a pat-down search if the officer  

                                                                                                                                                                                                                                         

has a reasonable basis to conclude that the passenger is armed and dangerous).  



          48        See State v. Affsprung, 87 P.3d 1088, 1094-95 (N.M. App. 2004); see also Simmons  



v. State, 435 P.3d 975, 978 (Alaska App. 2018) (noting that "actions taken in the name of  

                         

                                                                                                                                                                                                                                (continued...)  



                                                                                                                          -  16 -                                                                                                                        2706
  


----------------------- Page 17-----------------------

                               Second, the State argues that an officer's request for identification from a                                                                                        



vehicle passenger is permissible, so long as the conduct does not unreasonably extend     



the duration of the traffic stop.                                       The State cites                    Pooley v. State                   , where we said that "the                      



mere request for identification does not automatically render [a] stop a seizure, where it                                                                                                         



                                                                                                                                                                                               49  

does not appear that the identification was retained for an unnecessarily long time."                                                                                                                



                                                                                                                                                                                          

                               But unlike the pedestrian who was stopped in Pooley and in the other cases  



                                           50  

                                                                                                                                                                                                   

cited by the State,                             Perozzo was already seized by virtue of being a passenger in a  



                                                                                     51  

                                                                                                                                                                                         

vehicle stopped for a traffic violation.                                                   That is, he was "situated in a vehicle that [was]  



                                                                52  

                                                                      

not free to be driven away." 



                                                                                                                                                                                             

                               Moreover, in Brown, we rejected the notion that "the legal nature of [a] stop  



                                                                                                                                                                                               

remains unaltered" if a police officer's questions - otherwise unrelated to the basis for  



                                                                                                                                                                           53  

                                                                                                                                                                                                   

                                                                                                                                                                                 Rather, a  

the stop - "do not extend the expected temporal duration of a traffic stop." 



        48      (...continued)  



protecting officer safety must stem 'from the mission of the [traffic] stop itself'" (quoting  

                                                                                                                                     

Rodriguez v. United States, 575 U.S. 348, 356 (2015)) (alteration in Simmons)).  



        49     Pooley v. State, 705 P.2d 1293, 1306 (Alaska App. 1985).  



        50     Id. ; Wright v. State, 795 P.2d 812, 815 (Alaska App. 1990); LeMense v. State , 754  



                                                                                                                     

P.2d 268, 270 (Alaska App. 1988); see also INS v. Delgado, 466 U.S. 210, 216 (1984)  

                                                                                                                                                               

(recognizing that "a request for identification by the police does not, by itself, constitute a  

Fourth Amendment seizure").  



        51     Brendlin v. California, 551 U.S. 249, 255-57 (2007).  



        52  

                                                                                                                                                                                                   

               See Affsprung, 87 P.3d at  1093 ("A passenger in a vehicle stopped because of a  

                                                                                                                                                                                                   

traffic-related violation is situated in a vehicle that is not free to be driven away . . .  .  

                                                                    

Because of this and because of the fact that the driver is not free to refuse an officer's request  

for identification and documentation, we do not believe that a reasonable passenger would  

feel free to leave the area and refuse the officer's request for information.").  



        53     Brown v. State, 182 P.3d 624, 626 (Alaska App. 2008).  



                                                                                            -  17 -                                                                                        2706
  


----------------------- Page 18-----------------------

police officer's conduct during a stop must also be "reasonably related in                                                 scope" to the     



                                                                                         54  

circumstances that justified the stop in the first place.                                     



                                                                                                                                            

                      Perozzo was not suspected ofany crimeor trafficviolation himself, nor was  



                                                                                                                                            

he engaged in any suspicious behavior. Running a background check on a passenger like  



                                                                                                                                       

Perozzo as a matter of course, and in the absence of any articulable case-specific reason  



                                                                                                                                        

for doing so, alters the fundamental nature of the traffic stop and thus exceeds the scope  



                                                                                                                                            

of the original stop in violation of Article I, Section 14 of the Alaska Constitution.  



                                                                                                                                 

                      Third, the State contends that Perozzo voluntarily consented to providing  



                                                                                                                                    

his identification. But we agree with other courts that have held that, given the coercive  



                                                                                                                                     

circumstances of a traffic stop and the fact that the driver is otherwise required to provide  



                                                                                                                                              

a driver's license and other documents, a reasonable passenger would not feel free to  



                                                                                                                         55  

                                                                                                                              

                                                                                                                  

refuse an officer's request for identification during a routine traffic stop. 



                                                                                                                             

                      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  



                                                                  56  

                                                   

uncontaminated by duress or coercion.                                                                                              

                                                                       In other words, "[a]cquiescence to apparent  



                                                       57  

                                                                                                                                            

lawful authority" is not enough,                           and the State bears the burden of proving that the  



      54   Id. at 625 (emphasis added) (citing United States v. Brignoni-Ponce, 422 U.S. 873,                                              



881 (1975)).  



      55   See, e.g., Affsprung , 87 P.3d at 1093; State v. Johnson, 645 N.W.2d 505, 510 (Minn.  

                                                                                    

App. 2002).  



      56   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)).  



      57   Schaffer, 988 P.2d at 616.  



                                                                    -  18 -                                                               2706
  


----------------------- Page 19-----------------------

consent is untainted by any implicit threats or subtle coercion that may exist in the                                                     



                         58  

circumstances.               



                                                                                                                                  

                      Here, the State has not met its burden of showing that Perozzo's decision  



                                                                                                                                 

to accede to the officer's request was anything more than "acquiescence to apparent  



                              59  

                                                                                                                                   

                                   This is particularly true in light of the fact that Perozzo directly  

lawful authority." 



                                                                                                                                           

questioned Officer Farr's authority to request his identification, and the officer did not  



                                                                                                                       60  

                                                                                                                                       

otherwise inform Perozzo of his right to decline to provide identification.                                                In our view,  



                                                                                                                                           

the same coercive circumstances that we identified in Brown apply to police requests for  



                                                                                                  61  

                                                                                                                                              

identification from passengers during routine traffic stops.                                           By directly requesting a  



      58   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).  



      59  

                                                                                                                           

           See Affsprung, 87 P.3d at 1094 ("In reality, few passengers in this  circumstance  

would, in our view, feel free to ignore an officer's request for identification, or feel free to  

                 

get out of the vehicle and leave the area after either refusing to give the information or even  

after providing it.").  



      60  

                               

           See People v. Spicer, 157 Cal. App. 3d 213, 220, 203 Cal. Rptr. 599, 603-04 (Cal.  

App. 1984) (holding that, where "the circumstances [were] pregnant with coercion" during  

                                                                                                                        

a traffic stop at 1:30 a.m., an admonition that the passenger need not comply with request for  

driver's license was called for before encounter would be considered voluntary); see also  

                                                                                                                                           

United States v. Mendenhall, 446 U.S. 544, 558-59 (1980) (noting that knowledge of the  

                                                                                                                         

right to refuse consent is "highly relevant" to assessing the voluntariness of that consent).  



      61   Brown  v.  State,  182  P.3d  624,  626-27  (Alaska  App.  2008)  (recognizing  the  



"psychological pressures inherent in [a traffic] stop").  



                                                                   -  19 -                                                              2706
  


----------------------- Page 20-----------------------

passenger's identification in the course of an ordinary traffic stop, "the officer conveys                                                      



                                                                                                         62  

a message that compliance with his request is necessary."                                                      



                                                                                                                                            

                        Finally,  the  State  argues  that,  even  if  Officer  Farr  violated  Perozzo's  



                                                                                                                                                          

constitutional  rights,  evidence  of  the  firearm should  not  be  suppressed  because  its  



                                                                                                                                                   

discovery was attenuated from the illegality by the discovery and execution of the search  



               63  

warrant.                                                                                                                                                 

                         Under   the   attenuation   doctrine,   evidence   derived   as   a   result   of  



                                                                                                                                               

unconstitutional police conduct is not subject to exclusion if "the connection between  



                                                                                                                                           

[the] unconstitutional police conduct and the evidence is remote or has been interrupted  



                                                                                                                                     

by some intervening circumstance, so that the interest protected by the constitutional  



                                                                                                                                              

guarantee that has been violated would not be served by suppression of the evidence  



                   64  

obtained."               



                                                                                                                                                          

                        In McBath v. State, we applied this doctrine to uphold the admission of  



                                                                                                                                 

evidence  obtained  following  an  illegal  stop  and  the  discovery  of  an  outstanding  



               65  

                                                                                                                                                         

warrant.              We  stated  that,  when  determining  whether  the  evidence  sought  to  be  



                                                                                                                                             

suppressed is sufficiently attenuated from the taint of a Fourth Amendment violation,  



                                                                                                                                       

"our primary consideration must be our duty to enforce the policy of the exclusionary  



                                                                                                                                                            

rule - the policy of deterring the police from engaging in misconduct by imposing a  



                                                                           66  

                                                                                                                                                

meaningful penalty for that misconduct."                                        We explained that the attenuation doctrine  



                                                                                                                                          

applied to McBath's case for two main reasons:   (1) even if the police unlawfully  



      62    Affsprung , 87 P.3d at 1094.  



      63    See McBath v. State, 108 P.3d 241 (Alaska App. 2005); see also Utah v. Strieff, 136   



S.Ct. 2056 (2016).  



      64    Strieff, 136 S.Ct. at 2061 (internal quotations omitted).  



      65    McBath , 108 P.3d at 248.  



      66    Id.  



                                                                          - 20 -                                                                      2706
  


----------------------- Page 21-----------------------

detained McBath, this misconduct was not egregious because the police "had a valid                                                                                  



reason for wishing to know McBath's name" -                                                     i.e., he was taking possession of another                       



arrestee's property; and (2) after receiving McBath's real name, the evidence was only                                                                                

found after the police discovered and executed McBath's arrest warrants.                                                                            67  



                                                                                                                                                                  

                           Unlike in McBath, however, Officer Farr had no valid, case-specific reason  



                                                                                                                                                                          

for obtaining Perozzo's identification and running a warrants check.  This was not an  



                                      68  

                                                                                                                                                                         

"isolated instance"                       - Farr testified that he requested passenger identification and ran  



                                                                                                                                                            

warrant checks based on that information as part of a routine practice.  If the existence  



                                                                                                                                                                   

of a warrant could then be used to cleanse any taint from this illegal conduct, there would  



                                                                                                                                                                           

be no deterrent for the conduct and the attendant violation of the passenger's right to  



                                                                                                                                                                69  

                                                                                                                                                                       

privacy,  fundamentally  undermining  the  purpose  of  the  exclusionary  rule.                                                                                        We  



                                                                                                                                                              

therefore decline to find that the discovery of a warrant during a suspicionless warrants  



                                                                                                                                                                           

check on a passenger severs the link between the illegal conduct and the discovery of  



                                                                          

evidence when the police act on the warrant.  



                                                                                                                                                        

                           Second, and more particularly to Perozzo's case, the trial court specifically  



                                                                                                                                                               

found that the search warrant in this case was invalid. After Perozzo's attorney litigated  



                                                                                                                                                                 

the motion to suppress that is at issue in this appeal, the attorney filed a second motion  



                                                                                                                                                                        

to suppress, arguing that the warrant itself was not supported by probable cause, and that  



                                                                                                                                                                  

the evidence seized pursuant to the warrant should be suppressed. The trial court agreed  



                                                                                                                                                             

with Perozzo that the warrant was not supported by probable cause and was therefore  



       67    Id. at 250.  



       68    Strieff, 136 S.Ct. at 2063 (distinguishing a stop that constitutes an "isolated instance  



of negligence" from stops evidencing "systemic or recurrent police misconduct").  



       69    McBath , 108 P.3d at 248.  



                                                                                 - 21 -                                                                               2706
  


----------------------- Page 22-----------------------

invalid.70  (However, relying on the United States Supreme Court's decision in                                                United  



                       71  

States v. Leon        ,                                                                                                      

                          the trial court found that the police relied in good faith on the warrant  



                                                                                                                                

and therefore denied Perozzo's second motion.  Perozzo does not challenge this ruling  



                                                                                                                                    

on appeal, although we note that Alaska courts have never decided whether to adopt this  



                                                                        72 

                                                                               

                                                                          )  

good-faith exception to the exclusionary rule. 



                                                                                                                                          

                     The State does not offer a persuasive reason, or any meaningful support,  



                                                                                                                                  

for the notion that the discovery and execution of an invalid warrant can dispel the taint  



                                                                                                                                   

of a prior constitutional illegality.  At oral argument, the State acknowledged that it was  



                                                                                                                                    

unable to find a case with similar facts.  Indeed, in a recent case addressing whether the  



                                                                                                                                    

attenuation doctrine should apply to evidence obtained following an illegal stop and the  



                                                                                                                               

discovery of an outstanding warrant - a situation very similar to McBath - the United  



                                                                                                                                  

States Supreme Court repeatedly conditioned its description of the warrant at issue (and  



                                                                                     73  

                                                                                                                               

the accompanying rule) as involving a "valid" warrant.                                   We therefore reject the State's  



                                                                                                                                     

request to uphold the trial court's denial of Perozzo's first motion to suppress based on  



                         

the attenuation doctrine.  



     70    The court found that the warrant - which sought Perozzo's DNA in a possible sexual  



                                                                                                                  

assault case - failed to establish probable cause that Perozzo recklessly disregarded the  

complainant's lack of consent.  



     71    United States v. Leon, 468 U.S. 897 (1984).  



     72   Jackson v. State , 926 P.2d 1180, 1184 n.1 (Alaska App. 1996) (noting that Alaska  

                                      

courts have not adopted a "good faith" exception to the exclusionary rule).  



     73    See Strieff, 136 S.Ct. at 2061 (addressing "whether [the attenuation] doctrine applies  



at all to a case like this, where the intervening circumstance that the State relies on is the  

                                                                                                                   

discovery of a valid, pre-existing, and untainted arrest warrant" (emphasis added)); id. at  

                                                                                                                                      

2061-62 (setting out a three-part analysis for evaluating whether "the discovery of a valid  

                                                                                                                                  

arrest warrant was a sufficient intervening event to break the causal chain between [an]  

unlawful  stop  and  the  discovery of  drug-related  evidence  on  [the  defendant's]  person"  

                                                         

(emphasis added)).  



                                                                - 22 -                                                           2706
  


----------------------- Page 23-----------------------

                    For  all  these  reasons,  we  conclude  that  the  trial  court  should  have  granted  

Perozzo's  motion  to  suppress.74  



          Conclusion  



                    We  REVERSE  the  judgment  of  the  superior  court.  



     74   Perozzo also argues, and the State agrees, that the two attachments to the presentence  



report and the reference to the attachments in the report itself should be deleted from the  

                                                                                                                             

report, consistent with the trial court's ruling.  The State's concession is well-founded.  See  

                                                                                                                             

Marks  v.  State ,  496  P.2d  66,  67-68  (Alaska  1972)  (requiring  an  appellate  court  to  

independently assess whether a concession of error is supported by the record and has legal  

                                                                                                

foundation).  Although we are reversing Perozzo's convictions, we direct the superior court  

                    

to make these deletions given the sensitive nature of the documents.  

                                                                            



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