Elson v. State

• Decision Date: 18 February 1983
• Docket Number: No. 4967,4967
• Citation: 659 P.2d 1195
• Parties: Joel Anthony ELSON, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 1195

659 P.2d 1195

Joel Anthony ELSON, Appellant, v. STATE of Alaska, Appellee.

No. 4967.

Supreme Court of Alaska.

Feb. 18, 1983.

Christine Schleuss, Asst. Public Defender, Anchorage, Erick M. Safire, Asst. Public Defender, Kenai, Brian Shortell, Public Defender, Anchorage, for appellant.

Rhonda F. Butterfield, Asst. Atty. Gen., Anchorage, Wilson L. Condon, Atty. Gen., Juneau, for appellee.

Before BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.

OPINION

RABINOWITZ, Justice.

Joel Elson was convicted and sentenced to twenty-one months for possession of cocaine in violation of former AS 17.10.010. Elson's conviction and sentence were upheld by the Court of Appeals. ¹ We granted Elson's petition for hearing ² in order to review two facets of that decision. First, the Court of Appeals' holding that evidence concerning Elson's resistance to a "pat down" search was properly admitted. Second, the holding that illegally seized evidence could be considered by the superior court in determining Elson's sentence.

I. Facts

On February 23, 1979, Elson was stopped by Trooper Robert Scott after Scott had clocked Elson driving 63 miles per hour in a 45 mile per hour zone. Upon stopping Elson, Scott detected the odor of alcohol and observed that Elson's eyes were bloodshot and watery. Scott had Elson perform several field sobriety tests after which Scott placed Elson under arrest for operating a vehicle while under the influence of alcohol. In conducting a "pat down" search of Elson for weapons, Scott felt a hard object about two inches wide and four inches long in Elson's right pants pocket. Suspecting that it was a knife, Scott attempted to remove it but was stopped by Elson who grabbed Scott's hand. Scott then had Elson place his hands on the trunk of the car. Trooper Scott thereafter reached into Elson's pocket, withdrawing a "Bic" lighter and a brown vial which was connected to an item identified by Scott as a cocaine snifter. The police tested the residue on the inside of the vial and determined that it was cocaine. Elson was subsequently indicted for possession of cocaine. ³

At trial on the possession charge, Elson sought a protective order to prevent the admission of any testimony regarding his attempt to stop Trooper Scott from searching his pocket. The motion was denied and Scott was permitted to testify that Elson tried to prevent him from reaching into Elson's pocket. In final argument the prosecution commented on Elson's refusal to submit to a search, citing it as evidence that Elson knew that he had cocaine on his person. ⁴

The Court of Appeals held that the admission of Trooper Scott's testimony concerning Elson's resistance to the search did not violate his right of privacy under the federal and state constitutions ⁵ and that the superior court's admission of this evidence was not an abuse of discretion under Evidence Rule 403. ⁶

Approximately two months prior to trial on the possession charge, Elson was arrested for assault and battery and operating a motor vehicle while under the influence of alcohol. He was taken to the police station and placed in a restricted visitor's room. While in this room Elson ripped out several telephones. Officers removed him from the room and searched him, discovering a clear zip-lock plastic bag containing a white powder. After obtaining a search warrant, the police seized the powder and sent it to the crime lab for testing, which indicated that the substance was cocaine. ⁷

At the sentencing hearing following Elson's conviction on the original cocaine possession charge, the state introduced evidence of the police station discovery of cocaine. Elson moved for an evidentiary hearing to determine whether the bag of cocaine had been illegally seized. ⁸ The superior court denied Elson's motion, admitted the evidence of Elson's subsequent cocaine possession, and specifically stated that it had considered this evidence in determining Elson's sentence. In denying Elson's motion, the superior court made no specific ruling on the legality of the search and seizure which occurred at the police station; the Court of Appeals assumed, in the absence of a superior court finding, that the evidence was illegally seized. The Court of Appeals held that the superior court's consideration of illegally seized evidence for purposes of sentencing was not improper.

II. Admissibility of Elson's Refusal to Consent to the Search

On two prior occasions, we have held that evidence of a defendant's refusal to consent to a search is not admissible at trial in circumstances where the search would be illegal if conducted without the defendant's permission. Padgett v. State, 590 P.2d 432, 434 (Alaska 1979); Bargas v. State, 489 P.2d 130, 133 (Alaska 1971). Bargas involved a suspected drug dealer who was stopped by a police officer and asked to submit to a voluntary search. The defendant refused and then ran away from the officer. In holding that the admission of testimony regarding the defendant's refusal to consent to search and subsequent flight was a violation of the defendant's fourth amendment rights, we stated:

What this case is all about is that appellant's assertion of his constitutional right not to have his privacy invaded without just cause was used against him to help establish guilt of the crime for which he was indicted. This is entirely impermissible. It would make meaningless the constitutional protection against unreasonable searches and seizures if the exercise of that right were allowed to become a badge of guilt.

Bargas, 489 P.2d at 132. An analogy was drawn to United States Supreme Court cases which hold that a defendant's assertion of his fifth amendment right to remain silent may not be used against him at trial. ⁹

A like principle applies here. One's assertion of his constitutional right not to submit to a search of his person cannot be used as evidence of guilt if this constitutional right is to have any meaning.

Id., at 133.

In Padgett, the police impounded the defendant's auto and asked if he would consent to a search of the car without a warrant. Initially the defendant limited his consent to a search of the back of the car, but later he agreed to a search of the entire car. In ruling that the admission and use of testimony regarding the defendant's initial refusal to consent to a full search of the car constituted "plain error," we reasoned:

Padgett had a right under the fourth amendment to the Federal Constitution, and article I, section 14 of the state constitution, to refuse to consent to a search of all or part of his car. That right would be effectively destroyed if, when exercised, it could be used as evidence of guilt.

Padgett, 590 P.2d at 434. Bargas and Padgett are based on the premise that permitting the jury to draw an inference of guilt from a refusal to consent to a search would impose a prohibitive cost upon an individual's assertion of his constitutional rights.

Elson argues that the rule of Bargas and Padgett should be extended to bar the introduction of testimony regarding his refusal to submit to the search even though the search would have been lawful without his consent. ¹⁰ The state's argument, which the Court of Appeals accepted, is that the exclusionary rule enunciated in those cases is inapplicable where, as in this case, the contested search was lawful. ¹¹ In essence, the Court of Appeals held that when a person objects to what is later determined to be a constitutionally permissible search, that objection may be admissible at trial as evidence of the person's guilt. While we agree that Bargas and Padgett are not controlling here, we disagree with the rationale advanced by the Court of Appeals.

Bargas and Padgett focused on the individual's constitutional right not to consent to a search of his person or property. We were primarily concerned with the likelihood that the admission of a refusal to consent to a search would serve to deter people from asserting their constitutional rights. We recognized that the constitutional right to refuse to consent to an unlawful search "would be effectively destroyed if, when exercised, it could be used as evidence of guilt." Padgett, 590 P.2d at 434. Since the searches in those cases would have been illegal absent consent, we were not required to rule on the admissibility of a refusal to consent to a lawful search. However, in the case at bar, since the nonconsensual search of Elson's pocket was legal, we must address this issue. We conclude that the rationale of Bargas and Padgett applies with equal force to lawful searches.

In our view, the crucial question is not whether a search is illegal, but rather whether the admission of a refusal to consent to a search, legal or illegal, will inhibit the exercise of fourth amendment rights. The contrary position advocated by the state, in which the admissibility of the refusal would turn on the legality of the search, places an individual facing a police request to search in a difficult dilemma. As Elson points out, the legality of a search is often determined long after the fact, and thus a person who is asked to consent to a search would not know whether he is protecting or prejudicing himself by choosing not to consent. ¹² If the person consents, the fruits of the search would be admissible regardless of whether the police had the right to search without consent. If the person believes the search is impermissible and withholds his consent, he risks having his refusal considered as an admission of guilt if it is later ascertained that the nonconsensual search was permissible. An individual in this situation would have to balance a desire to assert his perceived fourth amendment rights against the risk of self-incrimination. This tension is magnified by the fact that in deciding whether to consent to a search, the individual is usually acting without the benefit of counsel's advice as to the legality of the police conduct and the possible...