Martin v. State

623 P.2d 1225, 1981 Alas. LEXIS 445

Opinions

OPINION

BURKE, Justice.

In State v. Sundberg, 611 P.2d 44, 50-53 (Alaska 1980), we held that the use of excessive force in effectuating an arrest did not require suppression of evidence thus obtained. The same issue is presented in the case at bar.

In the early morning hours of September 2, 1977, Joseph Henry Martin was observed by members of the Anchorage Police Department as he attempted to flee the scene of a burglary. Martin, after repeated warnings to stop, was shot by Officer William Pollard. His wounds were not fatal and Martin was arrested for the crime of burglary not in a dwelling, a violation of former AS 11.20.100.

After being formally charged, Martin moved to suppress all evidence obtained as a result of his apprehension and arrest, including physical evidence found at the scene and his identification as the perpetrator of the charged offense. His motion was denied by the superior court, and Martin entered a plea of nolo contendere. As authorized by our opinion in Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974), Martin’s plea was conditioned upon his right to appeal the court’s ruling on his motion to suppress. See also Oveson v. Municipality of Anchorage, 574 P.2d 801, 803 n.4 (Alaska 1978) (issue reserved for appeal must be dispositive of the entire case).

As we did in Sundberg, we assume, arguendo, that Officer Pollard used excessive force in effectuating Martin’s arrest.¹ The question, then, is whether our decision in that case controls the result in the case at bar. We hold that it does.²

In Sundberg, we refused to apply an exclusionary rule, even though the evidence sought to be suppressed was obtained by the use of excessive force in arresting the accused. Our reasoning is adequately set forth in our earlier opinion and need not be repeated here.³

AFFIRMED.

DIMOND, Senior Justice, dissents.

1 . The superior court in this case, contrary to the trial court’s ruling in Sundberg, found that the amount of force used to arrest Martin was authorized by AS 12.25.080 and constitutionally permissible. It is not necessary, however, for us to decide these issues. See Sundberg v. State, 611 P.2d 44, 49-50 (Alaska 1980).

2 . One issue that was not discussed in Sundberg was whether former Criminal Rule 26(g) required suppression of the evidence in that case. That issue is raised by Martin in the case at bar.

Former Rule 26(g) provided: “Evidence illegally obtained shall not be used for any purpose including the impeachment of a witness.” (See similar provision in current Evidence Rule 412.) Martin contends that the evidence against him was “illegally obtained” and, therefore, inadmissible under the rule. We disagree.

There is no dispute that Pollard had probable cause to arrest Martin. Apart from the assumed fact that he used excessive force in effectuating that arrest, the arrest was lawful in the sense that it was justified. Thus the evidence obtained as a result of the arrest was not the product of illegality. Also, as was the case in Sundberg, Officer Pollard “was proceeding in accordance with existing departmental directives, and the degree of force permissible under the necessary and proper phraseology of AS 12.25.080 had not been previously construed by this court.” 611 P.2d at 52 (footnote omitted). Under these circumstances, we hold that the evidence was not “illegally obtained” for purposes of applying the exclusionary rule contained in former Criminal Rule 26(g).

3 . In Sundberg we did warn:

[W]e think it appropriate to caution that our holding is not immutable. In the event a history of excessive force arrests is shown, demonstrating that existing deterrents are illusory, we will not hesitate to reexamine the question of whether an exclusionary deterrent should be fashioned in the situation where evidence is obtained as a result of an arrest which is effectuated by excessive force.

611 P.2d at 52 (footnote omitted). We repeat that warning here. The record fails to persuade us, however, that our holding in Sund-berg requires modification. The superior court’s ruling in the case at bar was announced on February 13, 1979, well over a year before Sundberg was decided by this court. Despite the able argument of Martin’s attorneys to the contrary, we see no real evidence of a subsequent “history of excessive force arrests ... demonstrating that existing deterrents are illusory.”