Pretextual Searches and Seizures: Alaska's Failure to Adopt a Standard

• Publication year: 2006

§ 23 Alaska L. Rev. 235. PRETEXTUAL SEARCHES AND SEIZURES: ALASKA'S FAILURE TO ADOPT A STANDARD

Alaska Law Review
Volume 23
Cited: 23 Alaska L. Rev. 235

PRETEXTUAL SEARCHES AND SEIZURES: ALASKA'S FAILURE TO ADOPT A STANDARD

SHARDUL DESAI

I. INTRODUCTION

II. FOURTH AMENDMENT AND THE PRETEXT STANDARDS

A. Overview of Fourth Amendment Search-and-Seizure Law

B. The Federal Pre-Whren Standard

C. The Objective Standard: Whren v. United States

D. The Subjective Standard: State v. Ladson ^[101]

III. SEARCH-AND-SEIZURE IN ALASKA

A. General Search-and-Seizure Laws

B. Relevant Pretext Case Law

C. Six Recent Cases: Hamilton, Way, Nease, and Others

IV. DISCUSSION

A. The Alaska Court of Appeals' Failure to Address the Issue of Pretexts Under the Alaska Constitution

B. The Implicit Adoption of the Reasonable Officer Standard by the Alaska Court of Appeals

C. Pretext Analysis Under the Alaska Constitution

V. CONCLUSION

FOOTNOTES

A decade has passed since the United States Supreme Court set an objective standard for testing the legality of pretextual searches and seizures under the Fourth Amendment. Due to the greater protection of privacy under the Alaska Constitution, it is possible that a stricter standard would prevail in Alaska. However, Alaska courts have yet to address whether and under what circumstances such searches are valid under the state constitution. In recent cases involving pretextual searches and seizures the Alaska courts have avoided the state constitutional question entirely and have even applied the wrong standard under the Fourth Amendment. This Note highlights the need for the courts to resolve definitively whether the Alaska Constitution imposes a stricter standard beyond that set by the Fourth Amendment; author argues that it ultimately does not.

I. INTRODUCTION

"The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement." ^[1] - William Pitt

Freedom from government intrusion lies at the very foundation of Western law and culture, and is one of our nation's most cherished freedoms. As the Alaska Supreme Court has stated, "[c]ertainly the . . . guarantee against unreasonable searches and seizures is at the very core of the protections needed to preserve democracy against the excesses of government." ^[2]

[*pg 236]

To deter unreasonable searches and seizures, evidence collected by illegal means is generally inadmissible at trial. ^[3] However, there is a good-faith exception to this rule: evidence collected in an illegal search and seizure may nevertheless be admissible if the officer reasonably believed, in good faith, that the search was legal. ^[4] This good-faith exception raises the issue of whether a bad faith exclusionary principle may also exist. That is, whether evidence obtained in an otherwise valid search can be suppressed when an officer acted in bad faith. So-called pretextual searches and seizures, or pretexts, fall into this category. ^[5]

Pretexts occur when the police use a legal justification to make a stop and conduct a search for an unrelated crime for which they do not have the probable cause or the reasonable suspicion necessary to support a stop. ^[6] A common example, and the kind most frequently litigated, is a vehicle stop for a minor traffic violation when an officer subjectively desires to investigate another, non-traffic-related crime. ^[7] Because pervasive regulations tend to preclude total compliance with traffic and safety laws, allowing pretexts would seem to subject drivers to "unfettered police discretion." ^[8] Such discretion would permit traffic stops based on arbitrary or discriminatory characteristics. ^[9] The New York Court of Appeals indicated the reality of this situation: "We are not unmindful of studies . . . which show that certain racial and ethnic groups are disproportionately stopped by police officers, and that those stops do not end in the discovery of a higher proportion of contraband than in the cars of other groups." ^[10]

[*pg 237]

In Whren v. United States, ^[11] the Supreme Court determined that pretexts are legal under the Fourth Amendment of the U.S. Constitution. ^[12] The issue has never been addressed under the Alaska Constitution. Since Whren, six cases in the Alaska Court of Appeals have questioned the legality of pretexts under article I, section 14 of the Alaska Constitution. In both Hamilton v. State ^[13] and Way v. State, ^[14] the court of appeals avoided the issue by narrowly defining pretexts. In Nease v. State, ^[15] the court declined to address the pretext question under the state constitution. ^[16] Indeed, the Nease court implicitly applied an obsolete standard -- the reasonable officer standard -- to pretexts under the Fourth Amendment, relying on a treatise published before the Whren opinion. ^[17] Finally, Olson v. State, ^[18] Grohs v. State, ^[19] and Marley v. State ^[20] all served to reaffirm the law established in Nease.

This Note argues that the Alaska Court of Appeals erred in avoiding the pretext question under the Alaska Constitution and implicitly and erroneously adopted the reasonable officer standard. Further, a thorough analysis of pretexts under the Alaska Constitution demonstrates that Alaska should adopt an objective standard. Part II of this Note will discuss the adoption of, and the rationale behind, the three approaches to pretexts: the objective standard, the reasonable officer standard, and the subjective standard. To accomplish this task, this section will provide a general overview of the Fourth Amendment jurisprudence and the adoption in federal courts of the objective standard and the reasonable officer standard. Finally, this section will discuss the illegality of pretexts under the State of Washington's constitution and that state's adoption of the subjective standard. Part III will discuss pretextual search-and-seizure case law in Alaska. First, a general overview of Alaska's search-and-seizure law will provide the framework within which pretexts can be discussed. This overview will illustrate that the Alaska Constitution provides broader privacy protection than the Federal Constitution. Next, the section will discuss relevant case law related to pretexts as well [*pg 238] as the recent six cases that raised the pretext question under the Alaska Constitution. Finally, Part IV will illustrate that the court of appeals reached erroneous conclusions in Hamilton, Way, and Nease. Furthermore, the discussion will reveal that regardless of greater privacy protections of the Alaska Constitution, the relevant Alaska case law supports the adoption of the objective standard.

II. FOURTH AMENDMENT AND THE PRETEXT STANDARDS

A. Overview of Fourth Amendment Search-and-Seizure Law

The Fourth Amendment is the Constitution's guarantor of personal security. It provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ^[21]

The Supreme Court has stated that "the Fourth Amendment protects people, not places." ^[22] An individual shall be free from unreasonable governmental intrusion wherever he may harbor a reasonable "expectation of privacy." ^[23] A "seizure" under the Fourth Amendment occurs whenever an officer accosts an individual and restrains his freedom to leave. ^[24] Therefore, a traffic stop, even for a brief period of time, constitutes a "seizure." ^[25]

Warrantless searches and seizures are "per se unreasonable" unless they fall under one of the narrowly recognized exceptions to the warrant requirement. ^[26] Under these exceptions, there are three categories of permissible warrantless automobile stops: (1) a search [*pg 239] of a motor vehicle based on probable cause; ^[27] (2) an inventory search; ^[28] and (3) a Terry "reasonable suspicion" investigatory stop. ^[29]

Because the expectation of privacy regarding one's automobile is significantly less than that relating to one's home or place of business, a less rigorous application of the Fourth Amendment governs. ^[30] As a result, warrantless searches and seizures of automobiles have been upheld in circumstances where they would be illegal in a home or office. ^[31] However, unfettered governmental intrusion into an automobile is impermissible. ^[32] To protect against arbitrary stops, the Supreme Court requires that the reasonableness of a warrantless automobile stop be evaluated under an objective standard. ^[33] Thus, "the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." ^[34]

Warrantless automobile stops without probable cause are unconstitutional ^[35] unless they are routine inventory searches or Terry investigatory stops. In South Dakota v. Opperman, ^[36] a vehicle illegally parked was towed to an impound lot. ^[37] At the lot, the officers conducted a routine inventory of the contents within the car and found marijuana in the glove compartment. ^[38] When the owner...