Erickson v. State , 2008 Alas. App. LEXIS 59 ( 2008 )

OPINION

MANNHEIMER, Judge.

Joseph E. Erickson was riding in a car as a passenger when an Alaska State Trooper stopped the car for not having a front license plate. When the trooper asked Erickson for identification, Erickson claimed to have no documents proving his identity, and then (verbally) he falsely identified himself to the trooper as "Chris Erickson".

When the trooper entered this false information into the APSIN database (the Alaska Public Safety Information Network), he found no matching record, and he therefore concluded that Erickson was lying about his identity.

The trooper ordered Erickson out of the car and patted him down. This pat-down search yielded an identification card that correctly identified Erickson as "Joseph Erickson". At this point, the trooper placed Erickson under arrest. The trooper then continued the pat-down search. During the continued search, the trooper found drugs-a plastic bag containing a green, leafy material and a glass pipe containing a milky white residue.

The trooper also noticed a black bag lying on the snow beside the passenger door of the car. When the trooper asked Erickson about this bag, Erickson replied that it "looked like trash". The trooper then retrieved the bag and searched its contents. He found a powdery substance that later was identified as methamphetamine.

Erickson was ultimately convicted of possession of methamphetamine (the substance inside the black bag) and possession of marijuana (the green, leafy material found on his person).

In our earlier decision in this case, Erickson v. State, 141 P.3d 356 (Alaska App.2006), we concluded that the trooper could properly require Erickson to get out of the car, but that the trooper had no grounds for conducting a pat-down search of Erickson's person. Id. at 359-362. We therefore directed the superior court to decide what evidence had to be suppressed as a fruit of the illegal pat-down. Id. at 362.

On remand, Superior Court Judge Donald D. Hopwood held an evidentiary hearing. At this hearing, the trooper testified that the black bag was plainly visible alongside the vehicle-because, even though snow was falling heavily at the time of the traffic stop, the black bag had no snow on it, and thus it stood out against the white ground. From this, the trooper inferred that the bag had either fallen out of the car when Erickson got out, or that someone inside the car had just thrown the bag from the car.

The trooper testified that, even if he had not conducted a pat-down search of Erickson's person, he still would have searched the bag. The trooper told the superior court that, when Erickson indicated that he had never seen the bag before, the trooper took this to be a disclaimer of ownership-and he therefore felt free to search the bag as abandoned property.

The trooper further testified that, after he found the powdery substance in the bag, he would have arrested Erickson even if he had not conducted the earlier pat-down search- and that, following Erickson's arrest, he would then have thoroughly searched Erickson's person.

Responding to the State's contention that the trooper could lawfully search the black bag because it was abandoned, Erickson argued that his denial of ownership was the tainted fruit of the earlier illegal pat-down search.

Judge Hopwood ultimately agreed with the State that the trooper would have seized and searched the black bag, regardless of what had occurred prior to that time. Specifically, Judge Hopwood concluded that, even without the preceding unlawful search of Erickson's person (and the discovery of the drugs on his person), the trooper inevitably would have asked Erickson about the bag and that, given the cireumstances, Erickson would inevitably have denied ownership of the bag-thus enabling the trooper to search the bag as abandoned property.

Erieckson's case now returns to us, and Erickson challenges the superior court's ruling that the search of the black bag was lawful.

The State can not rely on the doctrine of abandoned property to justify the search and seizure of the bag, because Erickson's verbal abandonment of the bag (his disclaimer of ownership) was the fruit of the earlier illegal pat-down search and the consequent discovery of drugs on Erickson's person

In its supplemental brief to this Court, the State takes the position that the trooper's search and seizure of the bag was lawful because Erickson disclaimed ownership of the bag, and thus it was "abandoned" for Fourth Amendment purposes. But our prior case law in this area firmly holds that if a defendant's act of abandonment is prompted by an fllegal search or seizure, the State can not rely on that act of abandonment as justification for a search and seizure of the abandoned object(s).

Here is our discussion of this point in Joseph v. State, 145 P.3d 595 (Alaska App.2006):

While the police were chasing him, Joseph took out the plastic baggie containing the cocaine and threw it to the ground. This action might be viewed as an abandonment of the cocaine. However, as this Court noted in Young v. State, 72 P.3d 1250, 1255 (Alaska App.2008), "[alets of abandonment prompted by unlawful police conduct are generally considered the tainted fruit of the illegality." Thus, because Joseph threw away the cocaine in response to police efforts to unlawfully seize him (that is, police efforts to subject him to an unlawful investigative stop), the cocaine would be viewed as the tainted fruit of the police misconduct.

Joseph, 145 P.3d at 601 (footnote omitted).

The omitted footnote cites three cases from other states in support of this conclusion: Cox v. State, 586 So.2d 1321, 1322 (Fla.App.1991) (holding that when the defendant's act of abandoning or dropping a package of marijuana was prompted by or was the result of an illegal stop, the purported abandonment could not be used to justify a warrantless search); State v. Belton, 441 So.2d 1195, 1199 (La.1983) ("When police officers make an investigatory stop without the legal right to do so, property abandoned or otherwise disposed of as a result thereof cannot be legally seized."); and Comer v. State, 754 S.W.2d 656, 659 (Tex.Crim.App.1986) (abandonment must oceur "independent of any police misconduct").

In addition to our discussion of this issue in Joseph, see Wayne R. LaFave, Jerold H. Israel, and Nancy J. King, Criminal Procedure (8rd ed.2007), § 9.4(f), Vol. 3, p. 464, in which the authors state that the better rule is to exclude evidence of a defendant's "attempts to dispose of incriminating objects" when the attempt to get rid of the object stems from an illegal search or seizure:

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

The State attempts to evade this authority by asserting that "[the record simply does not support [the] conclusion" that "Erickson's disclaimer of ownership [was] tainted . by the illegal search". We disagree.

Erickson was not questioned about the bag, and he made no statement about the bag, until after the trooper conducted the illegal pat-down, found drugs on Erickson's person (a plastic bag containing a green, leafy material and a glass pipe containing a milky white residue), and announced that Erickson was under arrest. These cireum-stances give every reason to believe that Erickson's disclaimer of ownership was a fruit of the illegal search.

The State's alternative argument: imevitable discovery

As a fall-back position, the State endorses Judge Hopwood's theory of "inevitable abandonment"-the theory that even if Erickson had not been patted-down, and the trooper had not found drugs on Erickson's person, and Evickson had not been placed under arrest, the trooper still would have inevitably asked the same question about the bag, and Erickson still would have inevitably disclaimed ownership of the bag. Based on this theory, the State argues that even if the illegal search of Erickson's person had never occurred, the trooper inevitably would have been authorized to retrieve and search the bag (because it was "abandoned" property).

The State's suggested version of events-its description of what would have happened, even if the illegal search of Erickson's person had never occurred-is one possible scenario. But one can also imagine that Erickson would have responded differently if he had not already been subjected to an illegal search, and if the trooper had not already found drugs on Erickson's person. For instance, if no illegal search had taken place, and the trooper had asked Erickson about the bag, Erickson might have said, "Oh, that's mine. It must have fallen out of the car when I opened the door."

Judge Hopwood believed that it was unlikely that Erickson would respond in that fashion-because Erickson knew that there were drugs on his person and in the bag, and because he was nervous. But despite these factors, there is nothing "inevitable" about the content of Erickson's response.

"Inevitable" does not mean "plausible", "expectable", or even "likely". Rather, a series of events is "inevitable" only when we can say with surety that, regardless of the variables, things would have turned out the same.

The actual events in this case were not "Inevitable". That is, it was not "inevitable" that Erickson would disclaim ownership of the bag after the trooper patted him down and found drugs on his person. Erickson might well have responded, "Okay, you've got me. There are more drugs in the bag."

(And, if Erickson had done so, the State would now be hard-pressed to argue that the retrieval and search of the bag was not tainted by the preceding illegal search.)

There is even less inevitability concerning what Erickson might have said about the bag if he had not already been subjected to an illegal pat-down, and if the trooper had not discovered the drugs on his person. One can speculate about what Erickson would have said, and one can even make informed guesses, but there is nothing inevitable about a person's decision how to respond to police questioning.

As the Third Circuit explained in United States v. Vasquez de Reyes, 149 F.3d 192 (3rd Cir.1998),

In response to our inquiry, the government was unable to cite to any decision in which the inevitable discovery doctrine was applied to admit statements, as distinguished from physical evidence. While we know of no articulation of the inevitable discovery doctrine that [expressly] restricts its application to physical evidence, ... it is patent why {[the doctrine has] generally, if not always, been so limited. A tangible object is hard evidence, and[,] absent its remov-all,] will remain where left until discovered. In contrast, a statement not yet made is, by its very nature, evanescent and ephemeral. Should the conditions under which it was made change, even but a little, there could be no assurance [that] the statement would be the same.

Vasquez de Reyes, 149 F.3d at 195-96 (quoted in Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (4th ed.2004), § 11.4(a), Vol. 6, p. 268).

Accord, United States v. White, 339 F.Supp.2d 1165, 1176-77 & n. 56 (D.Kan.2004) (the inevitable discovery applies only to physical evidence, not statements); United States v. Awadallah, 202 F.Supp.2d 55, 81-82 (S.D.N.Y.2002), reversed on other grounds, 349 F.3d 42 (2nd Cir.2008) (same).

See also United States v. Pelullo, 173 F.3d 131, 137 n. 4 (3rd Cir.1999) ("[determining] what Pelullo would or would not have testified to [under different cireumstances] clearly would require speculation" inconsistent with the inevitable discovery doctrine); United States v. Rodríguez, unpublished, 2006 WL 2860633, at *11 (D.Conn.2006) ("as De Reyes makes clear, it is not so easy to conclude, let alone with a 'high level of confi-denee,' that Delossantos would have said the same thing to the police [in the absence of the prior unlawful arrest and search]"); United States v. Castillo, unpublished, 2006 WL 522104, at *14 (D.Me.2006) (questioning whether the inevitable discovery doctrine can ever be properly applied to as-yet-unmade statements).

Moreover, as Professor LaFave explains, for purposes of applying the "inevitable discovery" doctrine, there is an important distinction between cases that involve a "determination ... of what law enforcement agents would otherwise have done [and] with what results" and, on the other hand, cases that involve a determination of "what some other person would have done". LaFave et al., Search and Seizure, § 11.4(a), Vol. 6, p. 282. "Cases that rely upon individual behavior as a crucial link in the inevitable discovery chain, particularly when that behavior is heavily influenced by the illegality that did occur, rarely sustain an inevitable discovery theory." Id. at p. 283 (citing State v. Topanotes, 76 P.3d 1159, 1164 (Utah 2003)).

Conceivably, there might be cases where a court could properly find that an as-yet-unut-tered statement was indeed "inevitable". But this is not one.

For these reasons, we reject the State's contention that, even if Erickson had not been subjected to the illegal search and ensuing arrest, he inevitably would have disclaimed ownership of the bag, and thus the trooper inevitably would have been authorized to retrieve and search the bag as "abandoned" property.

Conclusion

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