James Henry Perozzo v. State of Alaska

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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.
OPINION
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
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 5:40 p.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
dirty.1 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
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
firearm).2 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
he was armed).3
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,
a passenger, for his identification and then conducting a warrants check.4 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
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.
Why we conclude that the police were precluded from requesting Perozzo’s
identification and using that identification to run a warrants check
Both the Fourth Amendment to the United States Constitution and Article I,
Section 14 of the Alaska Constitution prohibit unreasonable searches and seizures by the
–4– 2706
government.5 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
she is free to leave.6
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
depart without police permission”:7
A traffic stop necessarily curtails the travel a passenger
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 intrusion on “privacy
and personal security” does not normally . . . distinguish
between passenger and driver.[8]
Because traffic stops are considered “a species of investigative stop rather
than a formal arrest,”9 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
the United States Supreme Court in Terry v. Ohio and related cases.10 Under Terry, a
traffic stop “must be temporary and [must] last no longer than is necessary to effectuate
the purpose of the stop.”11 “The stop becomes unreasonable — and thus constitutionally
invalid — if the duration, manner, or scope of the investigation” exceeds “the
circumstances that justified the stop in the first place.”12
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
license, proof of insurance, and vehicle registration.13 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
unreasonably extend the scope or duration of a valid traffic stop.14 Even a warrants
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
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
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
unrelated to the stop — as long as the inquiry does not unreasonably extend the stop.17
The Court has also authorized officers to order both drivers and passengers to exit the
vehicle, even absent a particularized safety concern.18
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
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
run a warrants check, even absent an independent basis for doing so19 — at least as long
as doing so does not unreasonably extend the duration of the stop.20 Several state courts
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 inevitably leads 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
for officer safety;21 (2) the need to create a record of witnesses to the traffic stop;22 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
safety concerns.24
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
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
justifying the inquiry.25 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
a traffic citation and must then allow the car to continue on its way.26 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
prohibits.27 The court further suggested that this type of inquiry constitutes “the sort of
24
(...continued)
concern for officer safety, without more, was insufficient to justify requesting 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
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 Constitution prohibits an officer from requesting a passenger’s identification
during a lawful traffic stop unless the officer has an independent basis for doing so.29
Rankin was a consolidated case. In Rankin, an officer initiated a traffic stop after
observing a car “roll over a marked stop line.”30 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
stop.31 The officer asked the driver and Rankin for their identifications and both
complied. A subsequent warrants check revealed that Rankin had an outstanding warrant
for his arrest. The officer placed Rankin under arrest and, after a search incident to the
arrest, the deputy found a knife and methamphetamine on Rankin’s person.32
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
In the companion case, State v. Staab, an officer stopped a vehicle for an
unlit license plate; Staab was a passenger in the vehicle.33 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
that the bag contained cocaine, which Staab later admitted.34
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
invaded, without authority of law”35 — the court held that an officer may not “request
identification from a passenger for investigatory purposes unless there is an independent
basis to support the request.”36
The court acknowledged having previously held that an officer’s request
for identification from a pedestrian does not alone constitute a seizure.37 However, the
court noted that “a passenger faced with undesirable questioning by the police does not
have the realistic alternative of leaving the scene as does a pedestrian.”38 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
transportation and, instead, walk away into a frequently foreign location thereby risking
the departure of his or her ride while away.”39
We are persuaded that the decisions 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
privacy under our state constitution.40 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
corresponding provisions of the Fourth Amendment.41
Our decision in Brown v. State is emblematic of the broader scope of our
search and seizure clause in the traffic stop context.42 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
under Article I, Section 14 of the Alaska Constitution.43 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)
not otherwise supported by a reasonable suspicion of criminality.”44 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
grounds for doing so.45
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 a passenger’s identification and then using that identification to run a warrants
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
thus systematically infringing on Alaskans’ right to privacy.46
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
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 from turning
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
findings to support such a conclusion.47
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
override the rights of passengers in relation to routine traffic stops.48
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
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
does not appear that the identification was retained for an unnecessarily long time.”49
But unlike the pedestrian who was stopped in Pooley and in the other cases
cited by the State,50 Perozzo was already seized by virtue of being a passenger in a
vehicle stopped for a traffic violation.51 That is, he was “situated in a vehicle that [was]
not free to be driven away.”52
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
the stop — “do not extend the expected temporal duration of a traffic stop.”53 Rather, a
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
police officer’s conduct during a stop must also be “reasonably related in scope” to the
circumstances that justified the stop in the first place.54
Perozzo was not suspected of any crime or traffic violation 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
refuse an officer’s request for identification during a routine traffic stop.55
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
uncontaminated by duress or coercion.56 In other words, “[a]cquiescence to apparent
lawful authority” is not enough,57 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
consent is untainted by any implicit threats or subtle coercion that may exist in the
circumstances.58
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
lawful authority.”59 This is particularly true in light of the fact that Perozzo directly
questioned Officer Farr’s authority to request his identification, and the officer did not
otherwise inform Perozzo of his right to decline to provide identification.60 In our view,
the same coercive circumstances that we identified in Brown apply to police requests for
identification from passengers during routine traffic stops.61 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
passenger’s identification in the course of an ordinary traffic stop, “the officer conveys
a message that compliance with his request is necessary.”62
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
warrant.63 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
obtained.”64
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
warrant.65 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
meaningful penalty for that misconduct.”66 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
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
“isolated instance”68 — 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
privacy, fundamentally undermining the purpose of the exclusionary rule.69 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
invalid.70 (However, relying on the United States Supreme Court’s decision in United
States v. Leon,71 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
good-faith exception to the exclusionary rule.72)
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
the accompanying rule) as involving a “valid” warrant.73 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
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.
– 23 – 2706