246 P3D 930 - Anderson v. State

BOLGER, Judge,

¶1concurring.

¶2I am writing separately to emphasize the factors we have applied in the past to determine whether a suspect's consent to a search is tainted by an earlier illegal arrest. In Brown v. Illinois, the United States Supreme Court suggested the following factors for determining whether a confession is tainted: (1) "the temporal proximity of the arrest and the confession," (2) "the presence of intervening cireumstances," and (8) "the purpose or flagrancy of the official misconduct." 1 We have applied the same factors to determine whether a suspect's consent to a search is tainted.2 In my opinion, Judge Swiderski's decision was based on a proper application of these factors.

¶3The first factor focuses on the time between the illegal detention and the suspect's consent. Anderson consented to provide the blood and urine samples only forty minutes after he was initially detained. This factor weighs in favor of suppression of the evidence obtained from the samples Anderson provided.

¶4The second factor focuses on the presence of intervening cireumstances. One intervening circumstance that may dissipate the taint of an illegal detention is an opportunity to contact counsel.3 Indeed, the opportunity to actually consult with counsel is widely recognized as an important intervening circumstance.4 I agree with Judge Swiderski's con*934clusion that Anderson's consultation with counsel was an important cireumstance dissipating the taint of his illegal detention. This factor weighs against suppression.

¶5The third factor focuses on the purpose or flagrancy of the official misconduct. We have described flagrant police misconduct as conduct that is "obviously illegal" or "particularly egregious." 5 In this case, the fact that the investigating officers detained Anderson in good faith reliance on a statute suggests that their conduct was not obviously illegal. The fact that the officers treated Anderson patiently and politely suggests that their conduct was not particularly egregious. There is no evidence that the officers threatened to force Anderson to provide samples; they planned to apply for a search warrant if he refused. This factor also weighs against suppression.

¶6Ultimately, the question of whether a suspect's consent to a search is voluntary or the product of duress is a question of fact to be determined by the trial court based on the totality of the cireumstances.6 Under the cireumstances of this case, Judge Swiderski could reasonably conclude that Anderson's opportunity to consult with counsel sufficient ly dissipated the taint arising from the officers' good faith demand for blood and urine samples.

¶7. Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

¶8. See McBath v. State, 108 P.3d 241, 244 (Alaska App.2005).

¶9. See Kalmakoff v. State, 199 P.3d 1188, 1201 (Alaska App.2009); Halberg v. State, 903 P.2d 1090, 1098 (Alaska App.1995); see also Frink v. State, 597 P.2d 154, 169 (Alaska 1979) (noting that consultation with counsel was a factor supporting a voluntary consent to search).

¶10. See Brown, 422 U.S. at 611, 95 S.Ct. 2254 (Powell, J., concurring); United States v. Wellins, 654 F.2d 550, 555 (9th Cir.1981); People v. Boyer, 38 Cal.4th 412, 42 Cal.Rptr.3d 677, 133 P.3d *934581, 609 (2006); State v. Jones, 558 S.W.2d 233, 238 (Mo.App.1977); State v. Graf, 721 N.W.2d 381, 386-87 (N.D.2006) (collecting similar cases).

¶11. McBath, 108 P.3d at 248.

¶12. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Frink, 597 P.2d at 167-68; Punguk v. State, 784 P.2d 246, 247 (Alaska App.1989).