Barker v. State

663 P.2d 932
CourtAlaska Supreme Court
DecidedMay 6, 1983
DocketNo. 5232
StatusPublished
Cited by1 cases

This text of 663 P.2d 932 (Barker v. State) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barker v. State, 663 P.2d 932 (Ala. 1983).

Opinion

OPINION

COMPTON, Justice.

Ralph Harker was convicted of armed robbery under former AS 11.15.240 and AS 11.15.295 and sentenced to ten years in prison, with six years suspended. Harker’s conviction and sentence were upheld by the court of appeals in Harker v. State, 637 P.2d 716 (Alaska App.1981). We granted Harker’s petition for hearing to review one aspect of that decision: the holding that Alaska’s exclusionary rule, Evidence Rule 412, applies only to constitutional violations and thus not to violations of the Posse Comitatus Act (the “Act”).1 We conclude that Rule 412 does apply to non-constitutional violations under certain circumstances, but hold that there was no violation of the Act in this case; therefore, we affirm the conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 16, 1979, a small convenience store in Fairbanks was robbed. The Fairbanks City Police Department broadcast a description of two suspects and their vehicle over police radio. Rodney Forbes, a soldier who was off duty, heard the broadcast on a police scanner he kept in his home. A few minutes later, while driving to a store, he saw a vehicle on the Ft. Wainwright Army Base that met the broadcasted description. He flagged down a nearby military police car driven by M.P. Smith and pointed out the suspect vehicle to him. Smith stopped the vehicle, searched the driver and the passenger, appellant Harker, and searched and seized evidence from the vehicle. The Fairbanks City Police were notified, and the suspects and evidence were turned over to them. At the time of his arrest, Harker was a soldier in the United States Army, stationed at Ft. Wainwright.

After prosecution of Harker for armed robbery was commenced, Harker filed motions to dismiss the case and to suppress the seized evidence. Following an omnibus and evidentiary hearing, the superior court denied the motions. Harker pleaded no contest to the charge of armed robbery, conditioned on the preservation of dispositive appellate issues in accordance with Cooksey v. State, 524 P.2d 1251, 1256 (Alaska 1974). See Oveson v. Anchorage, 574 P.2d 801, 803 n. 4 (Alaska 1978).

Harker appealed to the court of appeals, contending that the involvement of the military police in his arrest and in the search and seizure of evidence from the’ vehicle violated the Posse Comitatus Act. He argued that evidence taken as a result of the alleged violation should have been suppressed. The court of appeals did not decide whether there was an actual violation of the Act in this case, holding that even if [934]*934there were a violation, an exclusionary remedy should not be applied. This holding was based on two grounds: (1) that the usual considerations for applying the exclusionary rule in fourth amendment cases are not present in Posse Comitatus Act cases, and (2) that Alaska Evidence Rule 412 does not mandate a different result. 687 P.2d at 718-20.

II. APPLICABILITY OF RULE 412 TO NON-CONSTITUTIONAL VIOLATIONS

The first issue to be decided is whether the exclusionary remedy, set forth in Alaska Evidence Rule 412, applies to the violation of statutory, as well as constitutional, rights. Rule 412 provides in relevant part: “Evidence illegally obtained shall not be used over proper objection by the defendant in a criminal prosecution for any purpose except [for certain purposes in perjury prosecutions].” Harker contends that Rule 412 should be interpreted literally, extending to all evidence “illegally obtained” regardless of the basis for that illegality. The court of appeals rejected this interpretation and held that Rule 412 applies only to evidence obtained in violation of a defendant’s constitutional rights. 637 P.2d at 720. We disagree.

The exclusionary remedy stated in Rule 412 is distinct from the exclusionary rule required by Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090 (1961). In that case, the United States Supreme Court “in effect declared that the exclusionary rule, which it previously regarded as a rule of evidence, now operates as a constitutional mandate upon the state courts.” Ellison v. State, 383 P.2d 716, 718 (Alaska 1963) (footnote omitted). The exclusionary remedy provided by Evidence Rule 412, on the other hand, operates as a state rule of evidence. Although Alaska’s evidentiary rule cannot provide less protection than that afforded by the federal constitution, it can provide greater protection.

The primary rationale2 behind the federal exclusionary rule is to deter police from using unconstitutional methods of law enforcement. Mapp v. Ohio, 367 U.S. at 656, 81 S.Ct. at 1691, 6 L.Ed.2d at 1090. Deterrence is also one of the purposes behind Rule 412 and its predecessor, Criminal Rule 26(g).3 The policy underlying Rule 26(g) was discussed in State v. Sears, 553 P.2d 907 (Alaska 1976). In that case, we quoted from the committee notes of the Criminal Rules Revision Commission, which addressed the standing problem discussed in Dimmick v. State, 473 P.2d 616 (Alaska 1970): “ ‘The majority adopt the reasoning of Justice Connor in Dimmick v. State, [473 P.2d at 625,] that it is important that the government obey the law as well as enforce it and by excluding otherwise probative evidence official misconduct is deterred.’ ” 553 P.2d at 911.

The Commentary to Evidence Rule 412 also discusses the deterrence rationale: “Although illegally obtained evidence may be highly probative, this rule recognizes that such evidence must generally be excluded in order to breathe life into constitutional guarantees and to remove incentives for governmental intrusion into protected areas.” Alaska R.Evid. Commentary at 103. It is clear that the phrase “to breathe life into constitutional guarantees” can only apply to violations of constitutional rights. The second phrase, “to remove incentives for governmental intrusion into protected areas,” is not so limited. Rather, this phrase can apply to governmental intrusion into areas protected by statutes as well as by the state or federal constitution. There[935]*935fore, Rule 412 is not necessarily limited to violations of constitutional rights. Accordingly, we reverse the court of appeals’ holding on this issue.

We do not, however, hold that Rule 412 automatically applies to violations of all statutes, including the Posse Comitatus Act. In delimiting the scope of Rule 412 in earlier decisions, we have balanced the purpose behind excluding illegally obtained evidence with the interest in admitting reliable evidence in those proceedings. E.g., Elson v. State, 659 P.2d 1195, at 1202, (Alaska 1983) (applicability of exclusionary rule in sentencing proceedings); State v. Sundberg, 611 P.2d 44, 52 (Alaska 1980) (applicability of exclusionary rule to violations of statute prohibiting excessive force); State v. Sears, 553 P.2d at 912 (applicability of Rule 26(g) in probation revocation proceedings). See also Martin v.

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Harker v. State
663 P.2d 932 (Alaska Supreme Court, 1983)

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663 P.2d 932, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barker-v-state-alaska-1983.