State v. Malkin

¶1dissenting.

¶2I would affirm the decision of the court of appeals. Therefore, I dissent.

¶3The rule adopted by this court is as follows:

¶41. The defendant must point out (prove? by what burden?) the false statement (misstatement). Thereafter, the state must prove by a preponderance of the evidence that the misstatement was not intentionally or recklessly made.

¶52. If the misstatement was intentionally made, the search warrant obtained thereby will be invalidated regardless of the presence of probable cause after excision of the misstatement.

¶6B. If the misstatement was recklessly made, the misstatement will be excised and the remainder of the affidavit tested for probable cause.

¶74. If the misstatement was negligently or innocently made, it will not be excised.

¶8My principal disagreement with the court is over its willingness to condone the use of negligently made misstatements in search warrant affidavits. Although as citizens we are protected against “unreasonable” searches,1 probable cause to search may nonetheless be based upon no more than a negligently made misstatement. A law enforcement officer executing an affidavit in support of a search warrant who reasonably should know that a statement is false,2 but does not, may obtain a valid warrant. By definition the officer is acting unreasonably, and the search which could not have occurred but for the officer’s unreasonable conduct is in my view “unreasonable.”

¶9The court accepts that “difficulties of distinguishing innocent and negligent misrepresentations” and its own proclaimed “uncertainty of drawing the line between ‘negligent’ and ‘innocent’ misstatements,” justify not excluding negligent misstatements. Surely the court jests. It does not point to any problems with the test for negligence subscribed to by the court of *949appeals. It offers no test to determine recklessness. Furthermore, it ignores the fact that judges and juries, throughout this state and the United States generally, are required daily to differentiate between negligent and non-negligent conduct in cases involving extraordinarily complex questions. The court denigrates the capability of the trial bench by suggesting it cannot make such a determination in this context.

¶10In my view the court of appeals ably justified adopting of the rule of Theodor v. Superior Court of Orange County, 8 Cal.3d 77, 104 Cal.Rptr. 226, 501 P.2d 234 (Cal.1972), based upon that decision’s consistency with Alaska constitutional provisions, which textually and as interpreted go farther in protecting privacy than provisions of the United States Constitution or the Minnesota constitution interpreted in State v. Causey, 257 N.W.2d 288 (Minn. 1977). The analysis need not be repeated here.

¶11I also believe the court’s analysis of the exclusionary rule is incorrect and incomplete. First, the court should determine whether the Alaska constitution has been violated. If it has not, discussion of the exclusionary rule or any other remedy is irrelevant. Second, if a violation is found, the appropriate remedy must be determined. It may be the exclusion of evidence, but as this case demonstrates, does not have to be. Thus the intentional inclusion of a misstatement will result in application of the exclusionary rule — the search warrant will be invalidated — while reckless inclusion will result in excision and redeter-mination of probable cause. This is not the exclusionary rule.

¶12As the court correctly notes, the purposes of the exclusionary rule are deterrence of inappropriate law enforcement conduct and preservation of judicial integrity. These are not factors to be considered in determining whether there has been a constitutional violation in the first place, although the court’s analysis suggests that they are. The analysis is wrong. Further, because of the blurred analysis it is not possible to tell whether or at what point a constitutional violation has occurred. It is only possible to tell what remedy the court believes to be appropriate where certain culpability is found.