Anderson v. State: the Consent to Search Doctrine Revisited

• Publication year: 2012

§ 29 Alaska L. Rev. 289. ANDERSON V. STATE: THE CONSENT TO SEARCH DOCTRINE REVISITED

Alaska Law Review
Volume 29, No. 2, December 2012
Cited: 29 Alaska L. Rev. 289

ANDERSON V. STATE: THE CONSENT TO SEARCH DOCTRINE REVISITED

Andrew G. Perrin ^[*]

INTRODUCTION

Picture this: it's the day before Christmas Eve and you just killed a pedestrian in a motor vehicle accident. The police arrive, tell you they have no reason to believe you were at fault, but say they are nonetheless statutorily obligated to obtain blood and urine samples. They take you to the police station where you contact your attorney. He is unsure as to whether you should accede to the police's demand (perhaps because you had a beer an hour before the incident) and requests to speak with the arresting officer to confirm that he in fact has a duty to collect body samples. Both the officer and his supervisor are confident that they do.

In reality, the police may only perform these tests if they have probable cause to believe that the subject was at fault, which, admittedly, the police here do not. However, your attorney, after speaking with the officers, instructs you to comply with their demand. Later, a court finds the search illegal but holds the evidence-which is used to support a conviction for driving under the influence - admissible because you "voluntarily" consented.

The preceding scenario, based on the Alaska Court of Appeals' decision in Anderson v. State, ^[1] highlights substantial shortcomings in the traditional consent to search framework. Because the outcome should probably have differed under both federal and state precedent, the case illustrates the ambiguous nature of the Supreme Court's "totality of circumstances" analysis, which leads to seemingly unpredictable and unjust results.

This Note utilizes Anderson to underscore the deficiencies in the current consent doctrine and proposes a more workable, objective standard for Alaska to implement. Rather than requiring judges, as the traditional test demands, to engage in the impossible task of determining a subject's state of mind at the time of accession to a search request, courts should instead examine the police's actions for coercion or deception; the existence of the latter circumstances would render consent involuntary and thus invalid regardless of whether the police acted in good or bad faith.

This proposal more effectively furthers Fourth Amendment interests in that it deters unconstitutional conduct by giving the police an incentive to avoid coercive actions that might undermine the voluntariness of consent. Unlike the current doctrine, it also better protects the State judiciary's integrity by ensuring more foreseeable and fair results.

I. FACTUAL AND PROCEDURAL BACKGROUND

Kevin J. Anderson, a forty-five-year-old lawyer, hit and killed a pedestrian while driving on a snowy Saturday afternoon in December 2006. ^[2] Although the police officer investigating the accident did not suspect Anderson of wrongdoing, he mistakenly believed that individuals involved in an accident which resulted in death or serious injury are required to provide blood and urine samples. ^[3] Anderson was consequently transported to a police substation, where he contacted his attorney, Rex Lamont Butler. ^[4] Before contacting Butler, Anderson refused to submit body samples, even after the officer informed him that he was statutorily required to do so. ^[5] Anderson also admitted to consuming a beer more than an hour before the accident, though the police did not detect any signs of impairment and thus concededly did not have probable cause to collect blood and urine samples. ^[6]

Butler discussed Alaska's implied consent law with Anchorage Police Officer Thomas Gaulke before requesting to speak with Gaulke's supervisor, Lieutenant Nancy Reeder. ^[7] Both law enforcement officials mistakenly informed the attorney that, under Alaska's implied consent law, his client was required to supply body samples; Anderson subsequently obliged. ^[8]

The state charged Anderson with driving under the influence after tests revealed a blood alcohol level of .08 percent and that he had consumed marijuana. ^[9] Anderson moved to suppress the evidence from his blood and urine samples. The police, he argued, incorrectly advised him of their authority because, under State v. Blank, ^[10] the police may only demand samples if they have probable cause. ^[11]

The District Court concluded that Anderson had in fact been illegally detained. ^[12] Nonetheless, the defendant's consultation with his attorney prior to the illegal conduct rendered Anderson's consent "voluntary." ^[13] Anderson was later found guilty of driving under the influence. ^[14]

II. LEGAL BACKGROUND

A. Schneckloth and "Voluntary" Consent

The Fourth Amendment to the U.S. Constitution (and Section 1.14 of the Alaska State Constitution, for that matter) guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and that "no warrants shall issue, but upon probable cause . . . ^[15] Under this basic constitutional protection, a search conducted without probable cause is "per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions." ^[16]

One of these exceptions applies when individuals voluntarily consent to a search. ^[17] Schneckloth v. Bustamonte, a 1973 Supreme Court case, established the prevailing "voluntariness" doctrine. ^[18] In Schneckloth, a police officer stopped a vehicle after observing several burned-out exterior lights. ^[19] The driver and all but one of the six individuals in the car did not possess a driver's license. ^[20] When the police officer asked if he could search the vehicle, the men readily acquiesced. ^[21] A brief search revealed three stolen checks, which were later admitted as evidence against Robert Bustamonte, a passenger in the vehicle. ^[22]

Rejecting the Ninth Circuit's argument that the State must prove knowledge of the right to refuse consent, the Supreme Court concluded that "it is only by analyzing all the circumstances of an individual consent that it can be ascertained whether . . . it was voluntary or coerced." ^[23] A survey of "voluntariness," as defined in confession cases, revealed "no talismanic definition." ^[24] Instead, the term reflects "an accommodation of the complex of values implicated in police questioning of a suspect." ^[25] Broadly defined, the term accounts for the legitimate need for searches in law enforcement and, at the same time, "society's deeply felt belief that the criminal law cannot be used as an instrument of unfairness." ^[26]

Under Schneckloth, courts attempting to determine whether a particular instance of consent was voluntary may consider knowledge of the right to refuse, but "the government need not establish such knowledge as the sine qua non of an effective consent." ^[27] To mandate proof of a subject's mental state would risk undermining the admissibility of legitimate evidence in instances where the defendant, who was in fact aware of his right to refuse consent, simply fails to testify. ^[28] Nevertheless, the concept of voluntariness contemplates "evidence of minimal schooling, low intelligence, and the lack of any effective warnings to a person of his rights." ^[29]

Schneckloth also explicitly noted that consent "granted only in submission to a claim of lawful authority" is invalid. ^[30] In so doing, the Court affirmed its earlier holding in Bumper v. North Carolina. ^[31] Bumper involved an elderly woman who, after being told by police that they possessed a warrant, permitted them to search her house. ^[32] After the officers discovered a .22 caliber rifle that was allegedly used in a crime, the woman's grandson, who was charged with committing the offense, moved to suppress the evidence, arguing that the search violated his Fourth Amendment rights. ^[33] The Court held that "[a] search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid." ^[34] The same is true "when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all." ^[35]

Schneckloth v. Bustamonte further underscored that consent may not be coerced "by explicit or implicit means, by implied threat or covert force." ^[36] The Court emphasized that:

illegitimate and unconstitutional practices get their first footing . . .by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. ^[37]

Account must be taken, therefore, of even the most "subtly coercive police questions." ^[38]

Schneckloth's holding was specifically limited to cases where "the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent." ^[39] Unlike the "inherently coercive" custodial situations "that informed the Court's holding in Miranda,"(fn40)consent searches generally take place in public, "under informal and...