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Kevin J. anderson v. State of Alaska

January 28, 2011

KEVIN J. ANDERSON,
APPELLANT,
v.
STATE OF ALASKA, APPELLEE.



Appeal from the District Court, Third Judicial District, Anchorage, Alex Swiderski, Judge. Trial Court No. 3AN-07-6537 CR Court of Appeals No. A-10297

The opinion of the court was delivered by: Coats, Chief Judge.

NOTICE

The text of this opinion can be corrected before the opinion is published in the Pacific Reporter. Readers are encouraged to bring typographical or other formal errors to the attention of the Clerk of the Appellate Courts. 303 K Street, Anchorage, Alaska 99501 Fax: (907) 264-0878 E-mail: corrections at appellate.courts.state.ak.us

OPINION

Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.

BOLGER, Judge, concurring.

MANNHEIMER, Judge, dissenting.

While driving on a snowy day, Kevin J. Anderson hit and killed a pedestrian. The police investigated the accident but did not suspect Anderson of any wrongdoing. An officer told Anderson that he was required by statute to provide blood and urine samples for testing because he had been involved in an accident that caused death or serious physical injury to another person. They transported Anderson to a police substation.

At the substation, the police allowed Anderson to contact his attorney. After discussing the matter with his attorney, Anderson provided the requested samples. Based on the test results, which showed that Anderson's blood alcohol level was .08 percent and that he had consumed marijuana, the State charged Anderson with driving under the influence.*fn1

Anderson filed a motion to suppress the evidence from his blood and urine samples. Anderson pointed out that the police had incorrectly advised him about their authority: the police could only require him to submit the blood and urine samples if they had probable cause to believe he had committed a crime.*fn2

District Court Judge Alex Swiderski agreed that the police did not have statutory authority to seize Anderson's blood and urine samples. Because the police had misrepresented their authority to collect the samples, Judge Swiderski concluded that they had illegally detained Anderson when they transported him to the police substation. However, Judge Swiderski concluded that Anderson's consultation with his attorney before providing the samples had insulated Anderson's consent from the officers' prior illegal conduct, and the consent was voluntary.

Anderson filed motions for reconsideration, arguing that he had not had a meaningful conversation with his attorney. Judge Swiderski denied the motions, finding that the evidence at the suppression hearing supported the conclusion that Anderson was able to meaningfully consult with his attorney.

After his motions for reconsideration were denied, Anderson had a bench trial based on stipulated facts. District Court Judge Gregory Motyka found him guilty of driving under the influence. Anderson appeals. We affirm his conviction.

Discussion

When an illegal seizure or arrest by the police precedes a defendant's consent to search, the State must show that the defendant's subsequent consent was voluntary and not tainted by the illegal police conduct.*fn3 As just explained, Judge Swiderski ruled that Anderson's consultations with his attorney dissipated the taint from the officer's prior illegal conduct, and that his consent was voluntary. Anderson challenges both of these conclusions. Viewing the evidence in the light most favorable to the trial court's rulings, the record supports Judge Swiderski's decision.*fn4

Judge Swiderski found that the officer's misrepresentation of authority was not intentional. Anderson does not challenge this finding on appeal, and it is supported by the record. The officer testified that he did not believe Anderson had committed a crime, and that when he requested the blood and urine samples, he was not investigating a crime or looking for evidence. He requested the samples because he believed he was required to by state law.

Anderson was a forty-five-year-old lawyer and the police did not suspect him of any wrongdoing. The police were polite and courteous throughout the contact, and Anderson was not arrested at gunpoint, handcuffed, or surrounded by police officers. After he was transported to the police substation, Anderson was allowed to call his attorney, who was not immediately available. The police allowed Anderson to wait for the attorney to call back. They also permitted Anderson to call his wife and insurance adjuster, and offered to let him call anyone else he wanted to talk with.

When Anderson's attorney, Rex Lamont Butler, returned Anderson's call, Butler spoke with Anderson. Butler then discussed the implied consent law with Anchorage Police Officer Thomas Gaulke. Officer Gaulke directed Butler to his supervisor, Lieutenant Nancy Reeder. After his conversation with Reeder, Butler spoke with Anderson again. After talking ...


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