¶1dissenting.
¶2I believe that evidence obtained incident to an arrest brought about by excessive force should be suppressed under the exclusionary rule. The exclusionary rule serves two important and distinct purposes. First, it deters the unlawful conduct of law enforcement officials by eliminating the pros-ecutorial benefits of such conduct. Second, it preserves the integrity of the judicial system by ensuring that courts are not a party to the unlawful conduct.
¶3The use of excessive force to effectuate an arrest is already deterred to some extent by the criminal sanctions, police disciplinary proceedings, civil rights actions and common law tort actions that can be brought against the offending law enforcement official. I would therefore agree with this court’s conclusion in State v. Sundberg, 611 P.2d 44, 52 (Alaska 1980), that applying the exclusionary rule would achieve only a marginal additional deterrent effect.
¶4However, even if the exclusionary rule need not be invoked for the purpose of deterrence, I believe the rule must be invoked to preserve judicial integrity. As Justice Connor noted in State v. Sears, 553 P.2d 907, 917 (Alaska 1976) (dissenting opinion), “Historically the exclusionary rule did not arise merely from the need to deter official misconduct. Rather it was designed to keep intact certain values basic to our constitutional system of government.”
¶5Justice Connor further stated in his dissenting opinion:
Unless the exclusionary rule is applied against all forms of official lawlessness we engage in governmental hypocrisy of the most serious kind....
Unless some meaningful consequence follows from the violation of constitutional rights, those rights become merely a form of words without substantive don-tent. To the extent that we condone official lawlessness we become parties to the subversion of constitutional rights, and we fail to support and defend the constitution, which we are sworn to do.
¶6553 P.2d at 918 (footnote omitted).
¶7I agree with those courts which have held that using excessive force to effectuate an arrest violates the arrested person’s constitutional rights to due process of law and to be secure against unreasonable seizures. E. g., Campbell v. Buckles, 448 F.Supp. 288, 290 (E.D.Tenn.1977); Washington Mobilization Committee v. Cullinane, 400 F.Supp. 186, 213 (D.D.C.1975). This position is supported by various commentators as well. E. g., 2 W. LaFave, Search & Seizure § 5.1(d) at 239-40 (1978); Note, The Unconstitutional Use of Deadly Force by the Police, 55 Chi.-Kent L.Rev. 539 (1979). See Note, Substantive Due Process and the Use of Deadly Force Against the Fleeing Felon, 7 Capital U.L.Rev. 497 (1978); Comment, *1228Constitutional Law—Deadly Force to Arrest Nonviolent Fleeing Felons, 42 Mo.L. Rev. 452 (1977).
¶8It is not necessary to “assume,” as does the majority opinion, that excessive force was used when Martin was arrested. The parties are not in dispute as to any of the material facts surrounding Martin’s arrest. Four police officers arrived at an auto and truck parts store in Anchorage in response to a dispatch concerning a possible burglary in progress. This occurred at nighttime, but there was sufficient artificial light in the area for the officers and Martin to see each other. The store was surrounded by a six-foot-high chain link fence, topped with stands of barbed wire. Martin was inside this enclosed area, while the officers took positions around the fence outside of the area. Martin started running within the enclosed area, attempting to escape, when officers yelled at him to stop. At one point, Martin began climbing the fence, but halted when ordered to do so. Martin then started running again, and one of the officers again ordered him to stop. When Martin did not, the officer shot him. The officers then had to jump over the fence in order to get to Martin.
¶9Under AS 12.25.070, police may not “subject a person arrested to greater restraint than is necessary and proper for his arrest and detention.” Similarly, AS 12.25.080 authorizes the use of “all the necessary and proper means to effect the arrest” of one who flees after notice of a police officer’s intention to make the arrest. In State v. Sundberg, 611 P.2d 44, 49 (Alaska 1980), this court held that this “necessary and proper” phraseology should be construed consistently with the present AS 11.81.370, which took effect on January 1, 1980. Thus, under Sundberg, a police officer in making an arrest or terminating an escape may
(a) ... use deadly force only when and to the extent he reasonably believes the use of deadly force is necessary to make the arrest or terminate the escape ... from custody of a person he reasonably believes
(1) has committed or attempted to commit a felony which involved the use of force against a person;
(2) has escaped or is attempting to escape from custody while in possession of a firearm on or about his person; or
(3) may otherwise endanger life or inflict serious physical injury unless arrested without delay.
¶10AS 11.81.370.
¶11I agree with the Sundbergcourt that these are appropriate criteria for determining when the use of deadly force to arrest is permissible. These criteria were not satisfied in this case. First, the record on appeal reveals no basis for a reasonable belief by the officer who shot Martin that Martin had committed or attempted to commit a felony involving the use of force against a person. Second, there is no evidence that the officer reasonably believed Martin was in possession of a firearm. Finally, there is no evidence in the. record to justify a reasonable belief by the officer that Martin might otherwise endanger life or inflict serious injury unless arrested without delay. Thus, none of the three tests was met. The use of deadly force to arrest Martin was therefore unlawful and, as I indicated above, unconstitutional.
¶12I believe that the only way in which the judicial system can avoid seeming to condone the unlawful conduct of the officer who shot Martin, and the resulting violation of Martin’s constitutional rights, is to apply the exclusionary rule to suppress the evidence obtained incident to his arrest.