Cruse v. State, 3344

• Decision Date: 13 October 1978
• Docket Number: No. 3344,3344
• Citation: 584 P.2d 1141
• Parties: Tim Michael CRUSE, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 1141

584 P.2d 1141

Tim Michael CRUSE, Appellant, v. STATE of Alaska, Appellee.

No. 3344.

Supreme Court of Alaska.

Oct. 13, 1978.

Sue Ellen Tatter, Asst. Public Defender, and Brian Shortell, Public Defender, Anchorage, for appellant.

David Shimek and John Scukanec, Asst. Dist. Attys., Joseph D. Balfe, Dist. Atty., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before BOOCHEVER, Chief Justice, CONNOR, BURKE, and MATTHEWS, Justices, and DIMOND, Senior Justice.

OPINION

CONNOR, Justice.

Appellant Tim Michael Cruse appeals from the judgment and commitment of the superior court finding him guilty of robbery. ¹ The issue presented by this appeal is whether the trial court erred in denying appellant's motion to suppress evidence seized, pursuant to a warrant, from his automobile trunk when the trunk had previously been searched without a warrant.

On September 30, 1976, Stephan Pittman, field man at the Sundowner Drive-in Theater in Anchorage, had an altercation with three young men in a white car who were disturbing other patrons. Pittman got his supervisor's permission to eject the troublemakers, but then noticed that the car was already leaving the theater. He watched it stop briefly at the theater gate and then depart. Pittman spent the next 1 1/2 to 2 minutes at the theater's concession stand, and upon leaving the area, was approached by the theater cashier, Randall Peck. Peck said that he had just been robbed. Pittman described the white car and its occupants, and Peck agreed that the description fit his assailants.

Anchorage Police Sergeant Archie Hutchinson responded to the robbery call. After interviewing Pittman and Peck, he described the suspects over the police radio: a white car with license number ADF 230; three young white men without facial hair; one wearing a light brown jacket; one wearing a blue down vest or jacket; one with long, brown, wavy hair; another with bushy hair.

A State Trooper, participating in a trooper robbery stakeout of several stores in the area, advised all units that a white Mercury matching the description was parked at a liquor store and that suspicious activity was afoot. When the Mercury left the parking lot, three troopers followed it. They stopped the Mercury in a shopping center parking lot, and other stakeout units, as well as a helicopter with a spotlight, converged on the scene. One trooper had the suspects lie on the ground away from the car and frisked them, while another trooper covered him with a shotgun. Trooper Leo J. Brandlen reached into the Mercury to turn off the ignition and scanned the interior of the car for weapons, money or other evidence of the robbery. He saw some jackets, gloves, and, in the back seat area, a shopping bag containing baggies of material he thought was marijuana.

Brandlen, believing the suspects were under arrest although no words had yet been spoken to that effect, called for a wrecker to impound the vehicle. Following standard trooper policy to inventory the contents of all vehicles impounded for other than evidentiary purposes, he opened the trunk to inventory its contents.

Sergeant Hutchinson arrived as Brandlen was opening the trunk. He observed a long-barreled revolver, a garden hose, and a brown paper bag. He then advised Brandlen that the Anchorage Police Department would take charge of the case and that he wanted the car for evidence. He closed the trunk until he could get a warrant. Anchorage police do not inventory impounded vehicles as a matter of course. Hutchinson later made sure that the car was secure in the police garage and turned the keys over to a police investigator.

The investigator prepared an affidavit to secure a search warrant. He and an assistant district attorney agreed not to tell the district court judge about the prior search until after the judge signed the warrant because there was sufficient other probable cause to support the warrant. The warrant issued and a full search was made of the car.

Cruse filed a motion to suppress all of the items seized in the search. ² After a hearing, the motion was denied and Cruse entered his nolo contendere plea, reserving the right to appeal the unfavorable ruling on his suppression motion. ³ On appeal, Cruse challenges only the propriety of the search of the trunk from which a long-barreled gun and approximately $990 were seized. He argues that his arrest and Trooper Brandlen's original warrantless search of the trunk were illegal and, therefore, all evidence gleaned from that search and the subsequent warrant search must be suppressed.

Appellant contends that there was insufficient probable cause to arrest him because the description of the robbery suspects broadcast over the police radio was inconclusive and was provided primarily by Pittman who was not an eyewitness to the robbery. He also stresses that the "suspicious activity" reported at the liquor store was insufficient to support an arrest. ⁴

The test for probable cause to sustain an arrest was stated in Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879, 1890 (1949): ⁵

"Probable cause exists where 'the facts and circumstances within . . . (the officers') knowledge, and of which they had reasonably trustworthy information, (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed."

The white Mercury was first noticed because it matched the radio description of the fleeing suspects. The liquor store where the Mercury had stopped was quite close to the theater and very little time had passed since the description was broadcast. It makes no difference that the information supplying the probable cause came from a police radio rather than through direct contact between the victim and the arresting officer as long as the transmitting officer had a reasonable basis to believe the description he was given. Mattern v. State, 500 P.2d 228, 232-233 (Alaska 1972). Although Peck stated that he could not positively identify his assailants, he did provide Hutchinson with a general description of their body sizes and clothing. It is true that Pittman did not witness the actual robbery, but the very short time interval between the time he saw the white car stop at the gate and Peck's announcement that he had been robbed by the occupants of that car, renders Pittman's description of the suspects trustworthy. We believe that there was sufficient probable cause to arrest appellant.

There is no dispute that Trooper Brandlen's initial search of the trunk was conducted without a warrant. Warrantless searches are considered unreasonable per se, "subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967); Schraff v. State, 544 P.2d 834, 838 (Alaska 1975); Erickson v. State, 507 P.2d 508, 514 (Alaska 1973). Appellant and the state debate the applicability of various recognized exceptions to the warrant requirement which may or may not validate Brandlen's search. However, we do not need to address that issue because, even if we assume that the original trunk search was illegal, we hold that there was sufficient other probable cause to support the issuance of the subsequent warrant upon which authority the items in question were seized.

Assuming, arguendo, the unconstitutionality of the first trunk search, the exclusionary rule ⁶ would prohibit the use of both primary and derivative evidence gained from that search. Rule 26(g), Alaska R.Crim.P.; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). However, derivative evidence is not "sacred and inaccessible". If it is gained from an independent source or has become "so attenuated as to dissipate the taint", it may be admissible. Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307, 311-312 (1939); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). The test for finding whether derivative evidence must be suppressed along with the primary evidence yielded by the illegal search is:

" 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made had been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' "

Wong Sun v. United States, supra, 371 U.S. at 488, 83 S.Ct. at 417, 9 L.Ed.2d at 455. ⁷

We must determine whether the subsequent search warrant issued as a product of the prior allegedly illegal trunk search. Although the state has the ultimate burden of persuasion on the issue of whether the subsequently obtained evidence was untainted by the prior illegality, the defendant has the initial burden of demonstrating by specific evidence that the evidence about which he complains grew out of the illegal search. Alderman v. United States,394 U.S. 165, 183, 89 S.Ct. 961, 972, 22 L.Ed.2d 176, 192 (1969); United States v. Paroutian, 299 F.2d 486, 489 (2d Cir. 1962). Here, the causal connection between the illegal search and the subsequent warrant is tenuous. The controverted evidence here was obtained through information wholly independent of the initial trunk search. ⁸ The evidence presented to the district court in support of the search warrant was procured without resort to any clue or knowledge gained from the trunk search. The investigation leading to the lawful search was not intensified or significantly focused by reason of any tainted information. See United States v. Schipani, 414 F.2d 1262, 1266 (2d Cir. 1969), Cert. denied, 397 U.S. 922, 90 S.Ct. 902, 25 L.Ed.2d 102 (1970); Standard Oil Company v. State of Iowa, 408 F.2d 1171, 1177 (8th Cir. 1969). ⁹ Moreover, there was no exploitation of the alleged misconduct to discover new evidence as prohibited by Wong Sun v. United States, supra. The exclusionary rule extends...