Correspondence from Winter to Judge Wellford Re: Alaska v. Sundberg Court Opinion

    L . . fefense 'F N A A C P  L E G A L  D E F E N S E  A N D  E D U C A T I O N A L  F U N D ,  I N C .  
10 Colum bus C ircle, New York, N.Y. 1 0 0 1 9  •  (2 1 2 ) 5 8 6 -8 3 9 7

April 7, 1981

Hon. Harry W. Wellford 
District Judge, United States 

District Court for the 
Western District of Tennessee 
957 Federal Building 
Memphis, Tennessee 38103
Re: Garner v. Memphis Police Department

No. C-75-145

Dear Judge Wellford:
In response to the Court's letter of March 24, 1981, 

we would like to draw the Court's attention to the case 
of State of Alaska v. Sundberg, 611 P.2d 44 (1980). In 
that case, the Alaska Supreme Court had occasion to 
comment upon the use of deadly force to apprehend a 
non-violent fleeing felony suspect in the context of 
the application of the exclusionary rule. Its discussion 
of the fleeing felon rule highlights its historical 
and constitutional underpinnings. In construing the 
relevant Alaskan statute, the court held that deadly 
force could only be used against a fleeing felony suspect who has either committed a violent felony, is escaping 
while in possession of a firearm, or otherwise would 
endanger life unless arrested without delay. IW. at 49-50. 
The court concluded by noting that only in these situations 
may a felon

be subjected to the possibility 
of summary execution. Approval 
on our part of more relaxed 
standards...would give rise to 
significant constitutional 
questions.

Id. at 50. In a footnote, the court went on to note that 
oTt "v;ould entertain grave doubts as to the constitutionality 
of a statute which permitted peace officers to employ 
deadly force against all fleeing felons regardless of the 
particular circumstances." Id. at 50 n. 16. A copy of

C.onli ibulioiis are deductible for Ij.S. income tax i)urposes

The NAACP LEGAL DEFENSE & EDUCATIONAL FUND is not part of the National Association for the Advancement of Colored People although it 
was founded by it and shares its commitment to equal rights. LOF has had for over 20 years a separate Board, program, staff, office and budget.



Hon. Harry W. Wellford 
April 7, 1981 
Page 2

the opinion is attached for the Court's convenience.
If the Court so desires, we would be happy to 

appear at oral argument on the difficult constitutional 
questions posed in our papers. Otherwise, we would 
submit the case for decision based upon our brief and 
the offer of proof which was submitted in lieu of the 
evidentiary hearing which we requested-

Sincerely,
tco;

Steven L. Winter

/gh 
Enc.
cc: Walter L. Daily, Jr.

Henry L. Klein, Esq.
Esq.



m

44 Alaska 611 PACIFIC REPORTER, 2d SERIES

|l'

v i

ate, work in, or frequent such establish­
ments.

Affirmed as modified in this opinion.

I  KEY NUMBER SYSHMp

STATE of Alaska, Petitioner,

V .

Russell SUNDBERG, Respondent. 

No. 4397.

Supreme Court of Alaska.

May 9, 1980.

Defendant, charged with burglary, 
moved to suppress evidence. The Superior 
Court, Third Judicial District, Victor D. 
Carlson, J., adopted an exclusionary rule as 
a sanction against use of excessive force in 
effectuating the arrest, and the State peti­
tioned for review. The Supreme Court, Ra- 
binowitz, C. J., held that: (1) statute pro­
viding that if the person being arrested 
either flees or forcibly resists after notice of 
intention to make the arrest the officer 
may use all necessary and proper means to 
effect the arrest did not authorize law en­
forcement personnel to employ deadly force 
to arrest fleeing suspects under any and all 
circumstances; rather, the “necessary and 
proper” terminology was to be construed in 
light of relevant portions of the new Crimi­
nal Code which became effective on Janu­
ary 1, 1980, and (2) assuming that police 
officer, who discharged shotgun and 
wounded fleeing burglary suspect, used ex­
cessive force in effectuating the arrest, it 
was inappropriate, under the circumstances, 
to impose an exclusionary rule as a sanction 
against officer’s violation of arrest statute.

Reversed and remanded for further 
proceedings.

Burke, J., filed concurring opinion.

1. Homicide <®=»I07
Originally, the common-Ia^^ 

that use of deadly force was*j_ 
whenever the use of such force wasii 
sary to prevent or terminate theN 
sion of any felony. AS 12.25.(p,^

2. Arrest <3=68 ■ • •
Statute providing that ifyt 

being arrested either flees oi[, fo 
sists after notice of intention t,o'i 
arrest the officer may use all nec« 
proper means to effect the arrest . 
authorize law enforcement personftdi 
ploy deadly force to arrest fleeing 
under any and all circumstano^"-; 
the “necessary and proper’-  ̂ter 
was to be construed in light o f ^  
portions of the new Criminal .Cod^ 
became effective on January 1,V.I 
11.81.370, 11.81.900(12), 12.25.08oj 

See publication Words and 
for other judicial constructlons/li| 
definitions. ‘

3. Constitutional Law «=>48(1)^^
It is duty of the Supremej;( 

reasonably construe statutes,' whei^y 
sible, to avoid the dangers _of'*UhO 
tionality.

4. Criminal Law «=>394.1(2) *
Assuming that police officerJ>^jL 

discharged shotgun and wounded^,® 
burglary suspect, used excessivft^^on 
the arrest, it was inappropriate, to j 
an exclusionary rule as a sanction fij' 
tion of arrest statute as officer h ^  j  
ble cause, was proceeding . in 
with existing departmental directrix 
degree of force permissible under 1 
tory “necessary and proper” langua 
not previously been construed'by^l 
preme Court; also, consideration!^ 
cial integrity did not dictate invo 
an exclusionary rule. AS 12.25.0 
art. 1, § 14; U.S.C.A.Const. Amend

5. Criminal Law <®=»394.1(1)
The primary purpose of the e x ._  

ary rule is deterrence of future ille;^ | 
duct by the police. Const. art^jV 
U.S.C.A.Const. Amends. 5,



SERIES 
*•

tie «=>107
'ally, the common-law rule 
of deadly force was ju s tifu ^ i^  
the use of such force was fx 
event or terminate the com 
' felony. AS 12.25.080.

3=>68
e providing that if the-,__
sted either flees or forcibly__
notice of intention to maka tkVfl 
>fficer may use all neccssajy i 
ms to effect the arrest did 
w enforcement personnel to i 
force to arrest fleeing suspi 

and all circumstances;
'ary .and proper” terminolefyi.* 
construed in light of r e le « ^ f i  
the new Criminal Code «

■ctive on January 1, 1980. 
•81.900(12), 12.25.080. 
blication Words and Phrases'‘•.‘r,
" judicial constructions and 
s. .

ional Law «=48(1) ^
ity of the Supreme Court to f t 
)nstrue statutes, whenever pci^'^ 
id the dangers of unconsUl**’̂

>aw 394.1(2) 
that police officer, who 

hotgun and wounded Heeii^!^ 
pect, used excessive force to 

was inappropriate to ir 
ry rule as a sanction for < 
statute as officer had proh^,; 

as proceeding in accordeii^  
departmental directives 

e permissible under the 
y  and proper” language 
■ been construed by the 

also, considerations of jodkt 
did not dictate invocalioa
y rule. AS 12.25.080; __ _
l-S.C.A.Const. Amends, i,''

9
IW <S=>394.1(1) '■
ry purpose of the exclus*s*»,P. 
■rrence of future illegal 
’olice. Const, a r t  1, § U, 
Amends. 5, 14.

R-
Criminal Law <s=»394.1(2)

Potential deterrents to use of excessive 
in making an arrest exists in the 

|■Hbility of criminal sanctions, police de- 
tlBtraental proceedings, civil rights actions 

common-law tort suits against the of- 
ding officer; absence showing that such 

ents are ineffective, invocation of an 
usionary rule is not mandated. AS 12.- 

Const. art. 1, § 14; U.S.C.A.Const. 
ends. 5, 14.

J. Stern, Asst. Atty. Gen., Daniel 
X  Hickey, Chief Pros., Avrum M. Gross, 

Pltty. Gen., Juneau, for petitioner.
^ M n  M. Murtagh and Walter Share, Asst 

‘die Defenders, Brian Shortell, Public De- 
ider, Anchorage, for respondent.
obert H. Wagstaff and Louis James M. 
endez. Anchorage, for Alaska Civil Lib- 

Union as amicus curiae in support of 
“ “ ondont.

( Before-RABINOWITZ, C. J., and CON- 
'OR. POOCHEVER, BURKE and MAT- 
BEWS, JJ.

OPINION
^-RABINOWITZ, Chief Justice.
)This petition for review raises the propri- 

m  of the superior court’s adoption of an 
w|Klusionary rule as a sanction against the 

Ir •eof excessive force by the police in effec- 
•ling an arrest of a fleeing burglary sus- 

?f*t. We conclude such a rule should not 
iTc been applied and reverse.

eThe relevant facts are as follows. On the 
|i i |h t  of Airril 30, 1978, Anchorage Police 
f Officer Jack Bohannon, driving a marked 
jfitrol car, responded to a police dispatch 
Importing a burglary in progress at a phar- 

in a medical office building. The 
feliformation relayed by the dispatch was 
l ^ t  there were two susjrects one being 

■ibly a black male. When Officer Bo- 
anon arrived at the scene of the reported 

 ̂ glary, he noted the presence of a private 
I^,|rurity guard and another [)olice patrol 

He had akso ob.served a third patrol 
r a short distance away on its way to the 

ETstoc.'

STATE V. SUNDBERG
CUe as, A laska, 6 1 1 P.2d 44

Officer Bohannon saw a susjicct near a 
broken window of the pharmacy carrying a 
blue hat and a pillow case as a sack. The 
suspect dropiMid the pillow case on the side­
walk and began to run down the sidewalk 
away from Bohannon. Carrying a 12- 
gauge riot shotgun loaded with buckshot, 
Bohannon pursued the suspect on foot 
around the corner of the building for about 
fifteen or twenty feet, and shouted, “Hold 
it, police officer.” Bohannon did not warn 
the suspect that he had a weapon and 
would shoot if the suspect failed to stop.

Bohannon decided that he could not out­
run the suspect, stopped, and fired at the 
suspect with his shotgun from a distance of- 
approximately fifty yards. In accordance 
with police department policy, Bohannon 
had not fired a warning shot. One shotgun 
pellet struck the suspect in the back of the 
foot and another pellet struck him in the 
upper thigh. The susjiect immediately fell 
to the ground. - '  ’

Bohannon (juickly reached the suspect 
and several other police officers arrived at ■ 
that location within a minute or so. The 
suspect was searched and a box containing 
forty-two nine-millimcter cartridges was 
found in his pocket. A subsequent search 
of the [lillow case which had been dropped 
by the suspect revealed drugs and other 
items which had been taken from the phar­
macy. The susjKict was arrested, ques­
tioned, and identified as Russell Sundberg,' 
the respondent in this case.

Two days later, a nine-millimeter semi­
automatic handgun with seven cartridges in 
its clip and one cartridge in its chamber was 
found on the roof of a building near the 
pharmacy. This rooftop location was above 
the place where Sundbe'rg had fallen after 
being shot, and the cartridges in the hand­
gun found there were the same type as 
those found on Sundberg’s person when he 
was apprehended. While Sundlxirg’s fin­
gerprints were not on either the handgun or 
the cartridges, the superior court concluded 
that Sundberg had been armed at the time 
of the burglary and his subsequent flight.

I:

'IS

l i

li

. ill,
' ’f



4|6 Alaska 611 f'ACIFIC REPORiER, 2d SERIES

However, Officer Bohannon did not testi­
fy to any facts which indicated that he 
perceived Sundberg to be armed at the time 
of the chase, nor did he testify that he saw 
Sundberg either reach for or discard a 
weapon, though the street was well lit. Ac­
cordingly the superior court found that “no­
body perceived [Sundberg] to be armed*” at 
the time of the shooting and arrest.

In the superior court, Sundberg moved to 
suppress any evidence obtained by his ar­
rest, including statements made by him, his 
clothes and other evidence obtained in the 
search made incident to his arrest, and the 
identification of him accomplished after he 
was arrested. Sundberg asserted that his 
arrest was unlawful because excessive force 
had been used to accomplish it. He argued 
that Alaska’s statutory scheme, AS 12.25.- 
080, detailing the means permissible to ef­
fect an arrest is unconstitutional, if inter­
preted to allow the use of deadly force to 
arrest a fleeing felon who is not threaten­
ing the life of another. His argument in­
voked constitutional doctrines concerned 
with due process, equal protection, cruel 
and unusual punishment, and, unreasonable 
searches and seizures.

In a memorandum opinion, the superior 
court interpreted AS 12.25.080 to prohibit 
the use of deadly force by a police officer to 
arrest a fleeing felon unless the officer had 
“a reasonable belief that the [fleeing felon] 
was threatening the use of deadly force 
against either the officer himself, the vic­
tims of a crime, or innocent bystanders.” 
The superior court alternatively held that, 
if not so interpreted, the statutory scheme

1. After using a due process interest balancing 
analysis to give content to this constitutional 
requirement of reasonableness, Judge Carlson 
stated:

In conclusion, I find that the state’s interest 
in deterrence of future crime and effective 
law enforcement does not outweigh the de­
fendant's constitutionally protected right to 
suffer no deprivation of life or limb without 
due process of law. In order for the state’s 
interest to outweigh the individual’s interest, 
the individual must be threatening a compet­
ing and equal interest in another person’s life 
or limb. In other words, in the ca.se of a 
police officer using deadly force against a

violated Alaska’s constitutional gu 
against “unreasonable searches ‘ aiHl 
zures.” ' Subsequently the sufierior c o ^ , 
entered an order “suppressing the resultfrf 
the search which took place pursuant 
what [it] believe[d] was an
reasonable seizure of Mr. Sundberg’a

The state then petitioned this .court 
review of Judge Carlson’s opinion and 
pression order. The state’s petition in jttC 
asserts the following:

The state can establish that there'wMfiV 
burglary of a pharmacy, that’a . 'p e f^ : 
was seen fleeing from the pharma^ 
that prior to being arrested that p 
dropped a pillow case containingH 
and other items taken from the pi 
cy. However, with the suppression of tbl, 
results of the arrest, the critical pieoatf'J 
evidence, the identification of SundlM|L 
made after his arrest as the person 
ing from the pharmacy, is unavailable to 
the state. The state is unable to ( 
Sundberg’s identity by other:']
While the [sup>erior court’s] or „ „  
framed in terms of the suppressioi^lf.!' 
evidence, its effect is to bar prosecy^ 
of Sundberg.

Because of the importance of the l^ s l K  
sues involved, we granted review.^"*

I Historical Background
The common law developed a highli'  ̂

ticulated set of principles of jusUf.„,_j^, 
for the use of force to prevent crime.ltotj 
effect arrest.^ These principles are 
to and some extent overlap the doctrinb^ll 1

fleeing suspect, the police officer m ustbntn^ 
reasonable belief that the fleeing suspect i l l  
threatening the life of the officer, bys
or victims of the crime. In any other <___

. stance, the uge of deadly force to effed I 
arrest would constitute an unreasonable) 
zure in violation of the defendant's 
under Article 1, section 14 of the Alatfca l 
stitution. '  ■ ■■ >

2. For a thorough general discussion nt i 
principles, see Note, Justification for the 
f  orce in the Criminal Law, 13 Stan,L.RM9 
(1961).

•elf-dt
of pro[

|l . I- -Will
com me

The
justi

'̂ tion
P* prom

’■ the

' L For
f-'-.see V 

 ̂j §  53 
..nal c< 

,1 iMurdt
■ Beale,

> Rev. f)“y ■

gard t
■ also S i

f c i i  i. U n d e r
: (1942) 
^^Proceii 

l^"Code, 
[.y- ■jBums, 

'.Dangc: 
Yal(

y4. Note 
/X h m in  
) '‘{footni

I> LaFa 
: , notes i

m -



ska’s constitutional guaranUt’''' 
reasonable searches and Mi> ’ 
ibsequently the superior court  ̂
rder “suppressing the result! of ■' 
■vhich took place pursuant to 

{it] believe[dj was an ua> 
'izure of Mr. Sundberg’s body,"^

then petitioned this court for • 
dge Carlson’s opinion and 8up>
■r. The state’s petition in p u t 
allowing:
can establish that there w u  •  
f a pharmacy, that a perso* 
leeing from the pharmacy, and 
to being arrested that pcnoa 
pillow case containing drop  

items, taken from the pharma* 
'er, with the suppression of Uw • 
he arrest, the critical piece of , 
he identification of Sundberf 
his arrest as the person flo*» 

he pharmacy, is unavailable tO' 
The state is unable to establkk 

identity by other meanfc 
[superior court’s] order b  

terms of the suppression of 
s effect is to bar proseculioa 
g-
he importance of the legal »•,
, we granted review. - Ij

listorical Background

>n law developed a highly ar* 
of principles of justificatioa 

if force to prevent crime and s? 
■ These principles arc rclatad^^' 
xtent overlap the doctrines of

>ect, the police officer must ha^O  
belief that the fleeing suspect Is 
the life of the officer, bystander^

)f the crime. In any other circuo^- 
use of deadly force to effect 

Id constitute an unreasonable i  
ilation of the defendant's tiafais 
le I, section 14 of the Alaska CoM' f

High general discussion of thaw ■;
'  Note, Justification for the Vwtet 
Criminal Law, 13 Stan.L.Rev.

KRIES
I

i

k ;ielf-defensc, defense of others, and defense of felonies 
of proiierty.^

With regard to crime prevention, one 
1  ̂commentator noted:

•< The use of force has historically been 
justified when its purpose is the preven- 

, tion of a criminal act. Such force is 
prompted by different motives than when 
the actor is protecting himself or his 
property, because the threat is not to a 
personal interest of the actor but rather 
to society’s general interest in preventing 
.̂criminal acts. This interest would clearly 
seem a sufficient justification for force, 
particularly because the common law jus­
tified such force in apprehending the 
criminal once he had committed the crim­
inal act. Thus the effect of the crime- 
prevention privilege is to allow a [Kirson 
to use force in preventing a crime, rather 

-. than compel him to await the commission 
of the unlawful act.

Historically, the right to use force in 
, • preventing crimes was limited to situa- 
» tions where the threatened act would 

l_ .have constituted a felony or breach of the 
’peace. ' Consc(]uently, the threatened 

"commission of a non-violent misdemean- 
 ̂ or, such as petty larceny, provided no 

basis for the use of preventive force.^
However, in the 19th century, this com­

mon law distinction between the prevention

STATE v. SUNDl
CM.e as. A laska, 611 P.2d 44

and misdemeanors began to 
erode, and it l>ecame the general rule that 
“[0]ne who reasonably believes that a felo­
ny, or a misdemeanor amounting to a 
breach of the peace, is being committed, or 
is about to l(c committed, in his pri-^.uice 
may use reasonable force to terminate or 
prevent it.” ®

Alaska 47

'■h-
i. For a general discussion of these doctrines, 

see W. LaFave & A. Scott, Criminal Law 
§§ 53 55 (1972). On self defense in the crimi­
nal context, .see also Beale, Retreat from a 
Murderous Assault, 16 Harv.L.Rev. 567 (1903); 
Beale, Homicide in Self-Defense, 3 Colum.L. 

[f^^^Rev, 526 (1903); Perkins, Self-Defense Reex- 
twined, 1 U.C.L.A.L.Rev. 133 (19.54). With re- 

, gard to the defense of others and property, .see 
J V- tiso Stumberg, Defense of Person and Property 
ll'''’'’ Under Texas Criminal Law, 21 Tex.L.Rev. 17 

(1942); Note, The Use of Deadly force in the 
Protection of Property Under the Model Penal 
Codr. 59 Colum.L.Rev. 1212 (19.59); Bohlen & 
Burns, The Privilege to Protect Property by 
Dangerous Barriers and Mechanical Devices, 

; , .,J5 Yale L.J. 525 (1926).

.m Note, Justification for the Use of Force in the 
,̂ICrirninal Law, 13 Stan.L.Rev. 566, 568 (1961) 
: (footnote omitted).

Lai ave & Scott, supra note 3, at 406 (foot- 
note.s omitted).

[1] Originally, the common law rule was 
that the use of deadly force was justifiable 
whenever the use of such force was neces­
sary to prevent or terminate the commis­
sion of any felony. The common law felo­
nies were murder, rape, manslaughter, rob­
bery, sodomy, mayhem, burglary, arson, and 
prison break, and each of these offenses 
was punishable by death.* While most of 
these offenses involved danger to the life of 
others, the justification was based on the 
rationale that “the law does not allow ‘any 
crime to be prevented by death, unless the 
same, if committed, would also be punished 
by death.’ ” ^

With progressive creation of a great 
number of'statutory felonies, few' of which 
were punishable by death or even life im­
prisonment, this supporting rationale disap­
peared.* As a result, this justification was 
modified by judicial interpretation and, in 
some cases, statutes. The general rule that 
emerged limited the right, to use deadly

6. This list applies to felonies recognized in Eng­
land in 1500 and approximately the same felo­
nies existed in America at the time of the Revo­
lution. T. Plucknett. A Concise History of the 
Common l.aw (5th ed. 1956). See also Com­
ment, The Use of Deadly Force in the Protec­
tion of Property Under the Model Penal Code, 
59 Colum.L.Rev. 1212, 1217 nn. 26-27 (1959); 
LaFave & Scott, Criminal §§ 53-55 at 406 
(1972); Note, Justification for the Use of Force 
in the Criminal Law, 13 Stan.L.Rev. 566, 577 
(1961).

7. LaFave & .Scott, supra note 3, at 406 n. 27, 
(/noting 4 Blackstone, Commentaries 182 
(180,3).

8. From 1500 1800 the number of statutory fel­
onies recognized in England increased by over 
200. See L. Radzinowicz, A History of English 
Criminal Law 151, 153 (1948).

■ S 'JM

ny jef-r

■ il;f



M-'i!

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48 Alaska 611 PACIFIC REPORTER, 2d SERIES

force to prevent only those dangerous felo­
nies which posed a substantial risk of death 
or serious bodily harm to any person. How­
ever, in some jurisdictions the use of deadly 
force continued to be authorized to prevent 
at least certain classes of felonies without 
regard to the danger presented in the spe­
cific circumstances.®

With resj>ect to the principle of justifica­
tion involved in the present case, the com­
mon law allowed the use of deadly force 
when necessary to secure the arrest of any 
felon, with no distinction made between 
those felonies which did or did not pose a 
threat of violence. In contrast, there was 
no right to use deadly force, even though 
necessary, to arrest a misdemeanant."* The 
rationale was similar to that underlying the 
original felony |>revention standard.**

The common law rule authorizing the use 
of deadly force to effect the arrest of any 
felony suspect has been almost uniformly

9. See. e. g„ State v, Waggoner. 49 N.M. 399, 
165 P.2d 122 (1946); State v. Holbrook, 98 Or. 
43, 188 P. 947 (1920); Commonwealth v. Em­
mons, 157 Pa..Super. 495. 43 A.2d 568 (1945); 
State V. Nyland, 47 Wash.2d 240, 287 P.2d 345 
(1955). See generally LaFave & Scott, Crimi­
nal Law §§ 53 55 at 406 07 (1972); Comment, 
rhe Use o f Deadly Force in the Protection of 
Property Under the Model Penal Code. 59 Co- 
lum.L.Rev. 1212, 1217 18 (1959); Note, Ju.s(/F/- 
cation for the Use of Force in the Criminal 
law. 13 Stan.L.Kev. 566, 577 79. See also 
Restatement (Second) of Torts § 143(2) (1965).

10. .See, e. g., Lal ave & Scott, supra note 3, at 
405 06; Moreland, The Use of Force in Effect­
ing or Kesisting Arrest, 33 Neb. L. Rev. 408 
(1954); Pearson, The Right to Kill in Making 
Arrests, 28 Mich.L.Rev. 957 (1930); Perkins, 
The Law of Arrest. 25 Iowa L.Rev, 201, 268 73 
(1940).

11. Comment, Deadly Force to Arrest: Trigger­
ing Constitutional Review, 11 Harv. C.R. C.L. 
L.Rev. 361, .365 67 (1976) (footnotes omitted).

In contrast with re(>ard to a misdemeanant it 
was thought, as one court stated:

In such cases it is better, and more in conso­
nance with modern notions regarding the 
sanctity of human life, that the offender es­
cape than that his life be taken, in a case 
where e.xtreme penalty would be a trifling 
line or a tew days' imprisonment in jail. 

Klinkel v. .Saddler, 211 Iowa 368, 233 N.W. 538, 
541 (1940). See generally Note, The Applica­
tion of Deadly Force to Effectuate an Arrest, 5 
Washburn L.J. 262 (1966).

criticized by legal commentators for
past fifty years. These commentf _
though differing as to details of 
and formulation, have urged that dca^ 
force is justified only to a arrest a fitrr, 
felon who, either iK'cause of the naUnt^ ■ 
the offense committed or the facts k w a j  
to the arresting officer, poses a substariT 
threat to the life or physical safety of’W_. 
ers if not immediately apprehended.** fH- I

'-'tV-In 1962, the American Law InsUtotit 
ter considerable debate, agreed upoB'ft*^ 
section, 3.07(2)(b) of the Model Penal 
which provides:

The use of deadly force is not justifl^^ 
ble under this Section unless: '

(i) the arrest is for a felony; .̂.:
(ii) the person effecting the arr«t 

authorized to act as a peace officer Of fc 
assisting a person whom he believes toWf 
authorized to act as a pieace officer;*aa41

12. See, e. g„ .Sherman, Execution WitbdutTl^^ 
al: Police Homicide and the Constilut/«d' 
Vand.L.Rev. 71 (1980); Note, Arrest With i ‘ 
Without a Warrant, 75 U.Pa.L.Rev. 485.-.
504 (1927); Day, Shooting the Fleeing'fUm ' 
State of the Law. 14 Crim.L.Bull. 285, 297-9H ' 
(1978); Greenstone, Liability of Police Oftkini 
for Misuse of Their Weapons. 16 Clev..M«4.^ 
Rev. .397, 400 05 (1967); Gremel, W henQ m tJ  
Policeman Use His Gun? 40 J,Crim.L.C. * M  ’ 
756,7.59 60(1950); McDonald, Use oFForcs^ * 
Police to Effect Lawful Arrest, 9 Crlm.L(jL4H'j| 
451 52 (1967) (urging narrowing of justifi» 
tion in Canada); Moreland, The UseofFaitek] 
Effecting or Resisting Arrest. 33 Neb,Ul»c | 
408 (1954); Pearson, The Right to Kill in tU ti! 
ing Arrests, 28 Mich.L.Rev. 957, 974-76(18*1 
Safer, Deadly Weapons in the Hands of 
Officers on Duty and Off Duty, 49 J.Urb.U SH 
568 (1971); Note, The Justified Use of D e ^  
Force. 4 Crim.L.Bull. 3, 15 20 (1968); Nats, 4  
The Civil Liability of Peace Officers for Woimi- i 
ing or Killing, 28 U.Cin.L.Rev. 488, 4 9 4 ^  
(1959); Comment, Deadly Force to AmSBliiJ 
Triggering Constitutional Review. 11 Han. 
C.R. C.L. l..Rev. 361 (1976); Note, JustifiCMOOB, 
for the Use of Force in the Criminal Lawi U 
Stan.L.Rev. 566, 582 85 (1961); Note, j
ble Use of Deadly Force by the Police: A SoOh A 
tory Survey, 12 Wm. & Mary L.Rev.
(1970). See also President's Commissloo M 
Law Enforcement and Administration of Jm. 
tice. Task Force Report: The Police 188-W 
(1967).

'S":

Ik (iii) the acto 
employed creat 

'. ;injury to innoc 
(iv) the actoi
(1) the crimi 

made involved 
or threatened
'.V,

(2) there is ; 
^  ’person to be at

serious bodily 
 ̂delayed.

'As of 1978, sevei 
Imsion of the Co■p, ̂  .
non of the Mo> 

:^nacted in Ala.' 
which became c

i i f II Constru
With the foreg 

Kpirid, we turn n< 
Iquestion of the i 
Il2.25.080. Thiss 
Bnd effect at th 
prehended by Oi 

If the pers 
flees or.forcil 

If  'intention to n 
Hofficer may u 

[2;. proper means i 
in the .case at b 
strued AS 12.25.'

3. These statute' 
Del.Code tit. 1 

• Stat. tit. 37, 
Stat. § 503.09' 

; 17A, § 107-2(1
839(3) (1975);
§ 9.51(c) (19 
401(d)(2)(b) (L 

Note, Substantb 
Deadly Force Ay 
V. Memphis Pot 
Schnarr, 7 Cap.' 

/•See  also Cornin' 
If*' Triggering Con- 

C.R.-C.L. L.Rev 
| « .  tifiable Use of I 
fS .Statutory' Survey 
J.V 81-84 (1970).

.14. Article I, § I 
.provides:

The right ol 
persons, housi 
and effects, a

If: 611 P.2d—2



ES

î al commentators for 
rs. These commcnUU*%.,^ 
r as to details of analyi 
1, have urged that dca(Q|P ^
1 only to a arrest a flcrisf 
■r because of the nuturv >jI 
imitted or the facts kno«« 
officer, poses a substantM|| 

e or physical safety of olll»j 
diately apprehended.**
Vmerican Law Institute, •!*
> debate, agreed upon th e ,
)) of the Model Penal Codl tM-

deadly force is not jusUfi**
 ̂ Section unless: . '
L'st is for a felony; ao4 . „  
son effecting the arrest 
act ae a peace officer or h"? 

rson whom he believes to be 
act as a peace officer; ani'.^

icrman, Kveciitioii Without 7X»., 
'icidf and the Constitution, S i ' 
(1980); Note, Arrest With a 
rant, 75 U.Pa.L.Rev. 485. 
y. Shooting the Fleeing 
w, 14 Crim.UBull. 285, 297-3011 '̂  ̂
one. Liability of Police Offictn. •. 
I'heir Weapons. 16 Clev.-Marl.,f' 
i5 (1967); Gremel, When Cana
llis Gun? 40 .I.Crini.L.C. & PX 
r>0); McDonald, Use of Foret by 
l.au fill Arrest. 9 Crim I..Q 434, 

( i i i f ; i n; ;  n a t r i  ''■in; of justirtcaa'.-
Moreland, 7/icDse of Force ai I  

esisting Arrest. 33 Neb.L.Rrw,'’', 
irson. The Right to Kill in 
Mich.L Rev. 957, 974 76 (1930t"* 
Veapons in the Hands of Poircy 
S' and Off Diil.v, 49 J.Urb.l. 564. i 
te. The Justified Use of Deadly 
l. Bull. 3, 15 20 (1968); 
ity of Peace Officers for Wound- •

28 U.Cin.L.Rev. 488, 494 89 r 
ent. Deadly Force to A i7 r* ^ l  
■istitutional Resiew, 11 Han*..^j 

361(1976); Note, JiisfificaOoe 
f  orce in the Criminal Lass', IS 

582 85 (1961); Note, JustilUn-f^ 
lly Force by the Police: A SiatW-r^H 
2 Wm. & Mary I, Rev. 67, 81 ‘ 
Iso President's Commission oa ’irfl 
<‘iit and Administration of Ju»* fUm 
ce Report: The Police 189-90'

(iii) the actor believes that the force 
employed creates no substantial risk of 
injury to innocent persons; and

(iv) the actor believes that;
(1) the crime for which the arrest is 

made involved conduct including the use 
or threatened use of deadly force; or

(2) there is a substantial risk that the 
i .'person to be arrested will cause death or

serious bodily harm if apprehension is 
delayed.

of 1978, seven states had enacted some 
^  wsion of the Code’s approach,'* and a ver­

sion of the Model Penal Code has been 
enacted in Alaska’s new criminal code,
•hkh became effective January 1, 1980.

STATE V. SUNDBE
c ite  .IS , Alaska, 611 P.2d 44

Alaska 49

II Construction of A S 12.25.080 
With the foregoing historical overview in 

f'y.. nind, we turn next to the first impression 
'*>,-question of the proper construction of AS 

c  12.25.080. This statute, which was in force 
ft »nd effect at the time Sundberg was ap- 
fei’prehended by Officer Bohannon, provided;

. If the person being arrested cither 
.flees or. forcibly resists after notice of 
, intention to make the arrest, the peace 

V officer may use all the necessary and 
’ proper means to effect the arrest.
In the case at bar, the superior court con- 

■Itnied AS 12.25.080 in the following man­
ner:

13. These statutes are:
Del.Code tit. 11 § 467(c) (1974); Haw.Rev.

• Stat. tit. 37, § 703 ,307(3) (1976); Ky.Rev. 
St.at. § 503.090(2) (1975); Me.Rev.Stat. tit. 
17A, § 107 2(B) (197.5); Nev.Rev.Stat. § 28.- 
839(3) (1975); lex.Penal Code Ann. tit. 2.
§ 9.51(c) (1974); N.C.Gen.Stat. § 15A-

■■ 401(d)(2)(b) (197,5).
Note, Substantive Due Process and the Use of 
Deadly Force Against the Fleeing Felon: Wiley 
V. Memphis Police Department & Mattis v. 
Schnarr, 1 Cap.U.T.Rev 497, 499 n. 13 (1978).

- See also Comment, Deadly Force to Arrest: 
Triggering Constitutional Review, 11 Harv. 
C.R.-C.L. L.Rev. 361,368 69(1976); Note, Jiis- 

» liFiable Use of Deadly Force by the Police: A 
Staliitoiy Surs'ey, 12 Wm. & Mary L.Rev, 67, 
81-84 (l’970).

;r 14. Article I, § 14 of the Alaska Constitution 
pro'.'ides:

The riglit of the people to be secure in their 
pi-rsons, houses and other property, papers 
and effects, against unreasonable searches
eil P.2d—2

In other words, in the case of a police 
officer using deadly force against a flee­
ing suspect, the police officer must have a 
reasonable belief that the fleeing suspect 
is threatening the life of the officer, by­
standers, or victims of the crime. In any 
other circumstance, the use of deadly 
force to effect an arrest would constitute 
an unreasonable seizure in violation of 
the defendant’s rights under Article I, 
section 14 of the Alaska Constitution.** 
[2] We are of the opinion that the supe­

rior court correctly rejected a construction 
of AS 12.25.080 which would have permit­
ted law enforcement personnel to employ 
deadly force to arrest fleeing suspects un­
der any and all circumstances.'* In making ' 
this ruling the superior court appropriately 
considered relevant portions of Alaska’s 
new Criminal Code which became effective 
on January 1, 1980. AS 11.81.370 of the 
new code provides in part that a peace 
officer in making an arrest, or terminating 
an escape, may

(a) [U]se 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 escajie or at-' 
tempted 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;

and seizures shall not be violated. No war­
rants shall issue, but upon probable cause, 
supported by oath or affirmation, and partic­
ularly describing the place to be searched, 
and the persons or things to be seized.

15. There is no dispute that Officer Bohannon 
did use "deadly lorce” to make the arrest. 
Though not specifically defined in the then ap­
plicable statutes. AS 11,81,900(12) of the new 
Criminal Code provides;

“[D]eadly force” means force which the per­
son uses wilh the intent of causing or uses 
under circumstances which he knows create 
a substantial risk of causing, death or serious 
physical injury; “deadly force includes in­
tentionally discharging a firearm in the di­
rection o f another person or in the direction 
in which another person is believed to be 

. . [emphasis supplied].
This definition is similar to that found in the 
Model Renal Code § 3.11(2) (1962).

■'ll■|l i

4
-iH ■



, V  V

50 Alask 611 PACIFIC REPORTER, 2d S

% ■'a

i

yl:
Hi

m

(2) has escaped or is aLtemplin^ to es­
cape from custody while in possession of 
a firearm on or about his person; or

(3) may otherwise endanger life or in­
flict serious physical injury unless arrest­
ed without delay.

Given the circumstance that AS 11.81.370 is 
now operative, we believe a construction of 
the “necessary and proper means” phraseol­
ogy of AS 12.25.080, which brings these 
provisions into conformity with contempo­
rary Alaskan values, is indicated.

|3J Frequently felony suspects may flee 
for reasons other than guilt. Whatever the 
reason, the fleeing suspect has overriding 
interests involved in these circumstances. 
As one commentator notes;

The fleeing felony suspect advances 
two distinct but interrelated interests: 
the interest in not being deprived of life 
or limb because he committed a crime (a 
right to life) and the interest in suffering 
no de[)rivation until convicted in a court 
of law (a right to trial). When deadly 
force is used to arrest nonviolent felony 
suspects, these interests give rise to the 
two fundamental objections against the 
use of deadly force. The first is that the 
use of such force merely to arrest for a 
nonviolent crime is grossly disproportion- 

' ate and morally wrong. The second ob­
jection is that the de|)rivation of life or 
limb without trial is offensive to the pre­
sumption of innocence and other values 
central to our conception of justice and 
should not be condoned except in emer­
gency situations.

Comment, Deadly Force to Arrest: Trig- 
gering Constitutional Review, 11 Harv. 
C.R.-C.L.L. Rev. 361, 372-73 (1976). This

16. Given the narrow applicability of our hold- 
ing pertaining to the proper con.struction of AS 
12.25.080, and the fact that AS 11.81.370 be­
came effective on January 1, 1980, we deem it 
unnecessary to .set forth a lengthy explanation 
of our reasons for adopting the criteria of AS 
11.81.370 as appropriate limitations on the 
"necessary and proper" means phraseology of 
AS 12.25.080. We deem it sufficient to again 
note that without the construction of AS 12.25.- 
080 we have adopted today, this court would 
entertain grave doubts as to the constitutionali­
ty of a statute which permitted [X'ace officers

first interest is es|)ecially compelling in that iff- 
the death penalty is not available in Alaska,
Thus, it is only in situations articulated in ijs: 
AS 11.81.370 that a felon should be subject­
ed to the possibility of summary execution. 
Approval on our part of more relaxed stan­
dards than those provided in AS 11.81.370, 
would give rise to significant constitutional O  
questions.'* ^

Thus, we hold that the criteria embodied- '^ ' 
in AS 11.81.370 should be looked to as the (, 
relevant standards to be applied by Alaska'a\ 
courts in resolving issues which might stM; 
arise under the “necessary and propw 
means” phraseology of former AS 12.25.0M.̂

III Appropriateness of the superiortj^;^^ 
court’s invocation o f the 

exclusionary rule
14] T he foregoing leads us to an exami-'. '  

nation of the merits of the superior court’s 
imposition of an exclusionary rule and re-^.5 
sultant suppression order. We assume ar-'ji 
guendo that the record demonstrates that 
Officer Bohannon used excessive force 
effectuating the arrest of Russell Sundberg.f}p 
Taking this given as our starting point,,weJ 
address the (piestion of whether the sup 
or court properly invoked an exclusionary*!?^ 
rule as a sanction against Officer Bohaih,^'' 
non’s violation of AS 12.25.080. In the 
cumstances of this case, we conclude that it; . 
was inappropriate for the superior court 
have imposed an exclusionary rule. • 

Initially, we note that there is no legisUr  ̂
tive directive calling for invocation of 
exclusionary rule as a sanction against 
sort by the |)olice to excessive force in mak*.,jr 
ing an arrest (/. e., a violation of AS 12JJ5,«_̂  
080).”  Therefore, in the absence of a^y, 
compelling legislative history of AS 12.2S.-

to employ deadly force against all fleeing felOM 
regardless of the particular circumstanc**,;,
See Mallis v. Schnarr, 547 F.2d 1007 (8lh Qc^ 
1976) vacated soli nom. Ashcroft v. Matlis, 4Jt 
U.S. 171, 97 .S.ct. 1739, 52 L.Ed.2d 219, 
sterdam. Perspectives on the Fourth Ameoit-'t 
nient, 58 Minn.L.Rev. 349, 366-67 (1974).. 
ther, it is this court’s duty to reasonably i 
strue statutes, whenever possible, to avoid 
dangers of unconstitutionality. Hoffman 
State, 404 l'.2d 644. 046 (Alaska 1965).

17. See, e. g., lll.Rev.Stat. ch. 38 § 14-5 (1979I»,.s

080, we are fti 
to whether a 
rule should b 
the situation ' 
by excessive 
lice.**

Some measi 
tach in the ci 
duct is viola! 
significantly 
the accused.*® 
of the rights i 
think it relev: 
between AS

18. Compare 
(Alaska 1963 

■y 367 U.S. 643 
(1961) had n.

, • rule on unla 
. state, “Alask 

the federal e 
, which obtain 

718.

. 19. See Rule 
Procedure (/ 
Model Code 

. '  § SS 290.2(2

• 20. State v. S 
1976). As t 

.' the exclusioi 
2 . ed States, 23 

652 (1914); (
■ , 438, 48S.Ct.

United State 
- .  L.Ed.2d 1669 

643,.81 S .ct 
ry V. Ohio, 3; 
889 (1968); 
433, 96 S.Ci 

The deteri 
j-, , strongly dis| 
, - the Exclusiv 
-• 37 U.Chi.UR

• rent effect q 
. • search) and 

Problem—Ti 
.. • Tort Remed} 

\ J. Police Sc 
-' effect not d 

with Cannon 
ing Health?

' Against a I 
681, 725-26 

,V< See also 1 
§ 1.2(b), a t ; ’

21. See Annt! 
(discussing a 

■ See also Sta



STATE V. SUNDB
Clip as, Alaska, 611 P.2d 44

Alaska 51 i i v i

>ecially compelling in Oval 
is'not available in Alaska. ’ "* 
i situations articulated ia 
a felon should be subjerl- 
ly of summary execution.. 
iurt of more rela.xed sUn- 
provided in AS 11.81.371), 
significant constitutional ^^41^

r ' i '
hat the criteria embodied fc 
lould be looked to as th# ■
> to be applied by Alaska's 
r issues which might still 

“necessary and proi>er 
ry of former AS 12.25.080. 
teness o f the superior 
nvocation o f the 
isionary rule . . ^
'ing leads us to an exami* 
its of. the superior court’s 
exclusionary rule and re* 
in order. We assume ar- 
record demonstrates that 
1 used excessive force in 
rrest of Russell Sundberg.,^ 
as our starling point, we 

ion of whether the su|>cri- 
invoked an exclusionary 

n against Officer Bohan- 
AS 12.^5.080. In the cir-  ̂va 
I case, we conclude that it 
' for the superior court to 
exclusionary rule.
le that there is no Icgisla- 
ling for invocation of an 
as a sanction against re- 
to excessive force in mak- 

a violation of AS 12.25.- 
!, in the absence of any 
• live history of AS 12.25.-

forcc against all fleeing felon* 
!■ particular circumstance*, 
narr. 547 F.2d 1007 (8th Cir.
I riom. Ashcroft v. Maltis, 431 

1739, 52 L.F.(l.2d 219, Am- 
iivcs on the Fourth Amend- 
Itev. .349, 306 67 (1974). Fur-, 
lilt's duty to reasonably con- 
lenever possible, to avoid the 
■nstitutionality. Hoffman V. 
14. 646 (Alaska 1965).

ev.Stat. ch. 38 § 14 5 (1979).

080, we are faced with the policy decision as 
to whether a judicially created exclusionary 
rule should be .fashioned and employed in 
the situation where arrests are accompanied 
by excessive force on the part of the po­
lice.'*

Some measurable consequence should at- 
ifi the circumstance where police con- 

duct is violative of a statute and in turn 
1  significantly affects substantial rights of 

the accused.'* In assessing the significance 
i ' of the rights involved in the case at bar, we 

think it relevant to consider the' relationship 
between AS 12.25.080 and the goals of the

18. Compare Ellison v. State, 383 P.2d 716 
(Alaska 1963). We noted that if Mapp v. Ohio, 
367 U.S. 643 , 81 S.Ct. 1684, 6 L.Ed.2d 1081 
(1961) had not applied the federal exclusionary 

1 rule on unlawful searches and seizures to the 
state, “Alaska would have been free to retain 
the federal exclusionary rule or adopt the rule 

’ which obtained at common law.’’. 383 P.2d at 
718.

.19. See Rule 461, Uniform Rules of Criminal 
Procedure (Approved Draft 1964); compare 

, Model Code of Pre-Arraignment Procedure 
• § SS 290.2(2) (Proposed Official Draft 1975).

?0. State V. Sears, 553 P.2d 907, 911 12 (Alaska 
1976), As to the origins and development of 

. the exclusionary rule, see, e. g.. Weeks v. Unit- 
ed States, 232 U.S. .383, ,34 S.Ct. 341, .58 L.Ed. 
652 (1914); Olmstead v. United States, 277 U.S. 
438, 48 S.Ct. 564, 72 L.Ed. 944 (1928); Elkins v. 
United States, 364 U.S. 206, 80 S.Ct. 1437, 4 
L.Ed.2d 1669 (1960); Mapp v. Ohio, 367 U.S. 
643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Ter­
ry V. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 
M9 (1968); United States v. Janis, 428 U.S. 
433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976).

The deterrent effect of the rule has been 
strongly disputed. Compare Oaks, Studying 

, the Exclusionary Rule in Search and Seizure, 
37 U.Chi.L.Rev.'665, 709, 775-76 (1970) (deter­
rent effect questionable based on empirical re­
search) and Spiotto, The Search and Seizure 
Problem-—Two Approaches: The Canadian
Tort Remedy and the U.S. Exclusionary Rule, 1 
J, Police Sci. & Ad. 36, 49 (1973) (deterrent 
effect not demonstrated by empirical study) 

’ with Cannon, Is the Exclusionary Rule in Fail-
- ing Health? Some New Data and a Plea

Against a Precipitous Conclusion, 62 Ky.L.J. 
681, 725 26 (1974) (rule fulfills its purpose).
See also 1 W. LaFave, Search and Seizure
§ 1.2(b), at 25-30 (1978).

21. See Annot., 83 A.L.R.3d 174, 224-30 (1976) 
(discussing a few such criminal prosecutions). 
See also State v. Barr, 115 Ariz. 346, 565 P.2d

exclusionary rule as developed in the con­
text of searches and seizures.

[5, 6] The primary purpose of the exclu­
sionary rule is deterrence of future illegal 
conduct by the police.** Assuming that ap­
plication of an exclusionary rule would pro­
vide some disincentive to the use of unlaw­
ful force by police officers in making ar­
rests, the question which remains is wheth­
er other deterrents render adoption of an 
exclusionary rule unnecessary giv.en socie­
ty’s interests in the apprehension, preven­
tion, and trial of offenders. Potential de­
terrents exist in the possibility of criminal 
sanctions; *' police departmental proceed-

526 (1977); People v. Wild, 60 Cal.App.3d 829, 
1,31 Cal.Rptr. 713 (1976); Commonwealth v. 
Duerr, 158 Pa.Super. 484, 45 A,2d 235 (1946), 
See generally Edwards, Criminal Liability for 
Unreasonable Search and Seizure, 41 Va.L.Rev. 
621 (1955); Newman, Suing the Lawbreakers: 
Proposals to Strengthen the Section 1983 Dam­
age Remedy for La w Enforcer’s Misconduct, 87 
Yale L.J. 447 (1978).

At the time of the offense, AS 11.60.350 pro­
vided:

Deprivation of Rights Under Color of Law.
A person who, under color of any law, ordi­
nance or regulation of this state or its politi­
cal subdivisions, wilfully deprives another 
person of a right, privilege or immunity 
granted by the constitution or the laws of 
this state, or who subjects another person to 
different punishments, pains or penalties be­
cause of that person’s race, color, creed or 
national origin, is guilty of a misdemeanor 
and upon conviction is punishable by impris­
onment for not more than one year, or by a 
fine of not more than $1,000, or by both, 

3'his offense is now incorporated under AS 11.- 
76.110 of the new criminal code which provides 
in pertinent part:

Interference with Constitutional Rights, (a) 
A person commits the crime of interference 
with constitutional rights if

(1) he injures, oppresses, threatens, or in­
timidates another person with intent to de­
prive that person of a right, privilege, or 
immunity in fact granted by the constitution 
or laws of this state;

(2) he intentionally injures, oppresses, 
threatens, or intimidates another person be­
cause that person Iras exercised or enjoyed a 
right, privilege, or immunity in fact granted 
by the constitution or laws of this state; or

(3) under color of law, ordinance, or regu­
lation of this state or a municipality or other 
political subdivision of this state, he inten­
tionally deprives another of a right, privilege,, 
or immunity in fact granted by the constitu­
tion or laws of this state.

m



52 Alaska 611 PACIFIC REPORTER, 2d SERIES

ip!!■

mi

E li'

ings; “  civil rights actions; “  and common 
law tort suits against the offending officer.
On ihe record in this case we are not per- 
suaiU'd that these deterrents are so ineffec­
tive that invoiration of an exclusionary rule 
is the only viable alternative.

Further, the conventional search and sei­
zure setting usually involves a relatively 
static factual circumstance where the object 
of police efforts is to obtain evidence of 
criminal conduct. In stark contrast, the 
fleeing offender—arrest situation normally 
does not involve intentional police efforts to 
obtain evidence of criminality. This latter 
setting often requires law enforcement offi­
cials to make rapid decisions within the 
framework of fluid and confused factual 
situations which do not permit significant 
reflection, the obtaining of legal advice, or 
the intervention of, and decision from, a 
neutral and detached judicial officer.

Given these considerations and the ab­
sence of a history of excessive force arrests 
by police officers in Alaska, we conclude

22. There is considerable di.sagreement as to 
both the present and potential effectiveness of 
such administrative procedures in determimng 
police violations of individual rights and in im­
posing meaningful sanction. See Report of the 
National Advisory Commissioa on Civil Disor­
ders 162 6.1(1968); President’s Commission on 
1 aw enforcement and Administration of .Jus­
tice, Task I'orce Report: Ihe  Police 200 0.'5 
(1967); W Gellhorn, When Americans Com­
plain 170 95 (1966); Goldstein, Administrative 
Problems in Controlling the Exercise of Police 
Authority, 58 J.Crim. l-.C. & P.S. 160 (1967); 
McGowan, Rulemaking and the Police, 70 
Mich.L.Rev. 659 (1972); .Schwartz, Complaints 
Against the Police: Experience of the Commn- 
nitv Rights Division of the Philadelphia District 
Attorney’s Office, 1 18 U.Pa.l. Rev. 102,1(1970); 
Note, The Administration of Complaints by Ci­
vilians Against the Police, 77 Harv.I. Rev. 499 
(1964); Comment, POLICE— Philadelphia’s Po­
lice Advisory Hoard—A New Concept in Com- 
munitv Relations, 1 Vill.C.Rev. 6.56 (1962). See 
also Council of Org. on Phila. Police Accounta­
bility & P-esponsibility v. Rizzo, 157 F.Supp. 
1289 (E D. Pa. 1971) (court ordering improved 
police procedures for reducing police miscon­
duct and handling citizen complaints alter lind- 
ing frequent rights violations by members of 
department), rcv’il sub nom. Rizzo v. Gooile, 
421 U.S. .162, 96 S.Ct. 598, 46 l..i;d.2d 561 
(1976); Calvin v. Conlisk, 167 F.Supp. 476 
(N.D.111.1971) (refusing to order Chicago Police 
Department “to adopt and implement an effec­
tive police discipline system").

that the imposition of an additional exclu- 
sionary deterrent would at best achieve 
only a marginal deterrent effect. Further­
more, we are of the view that imixwition of 
an exclusionary rule on the particular facU 
of the case at bar was clearly unwarranted.
Here the officer had probable cause to 
make the arrest, was proceeding in accord*  ̂
ance with existing departmental directive^ 
and the degree of force permissible undeg 
the necessary and proper phraseology of 
12.25.080 had not been previously constru^'^i 
by this court.^ .

On the other hand, we think it appropri-’̂  
ate to caution that our holding is not im­
mutable. In the event a history of ex c ^  ' j 
sive force arrests is shown, demonstrating y  
that existing deterrents are illusory, we will,-- 
not hesitate to reexamine the question of y  
whether an exclusionary deterrent should^ ; 
be fashioned in the situation where 
dence is obtained as a result of an arrest y  
which is effectuated by excessive force,*:

23. Cases based on such complaints are collect- 
ed in Annot., Police Action in Connection 
Arrest as Violation of Civil Right,s Act, 42 
U.S.C. § 1981. 1 A.l..R.Fed. 519 (1969 & Supp. 
1979). See also Comment, The Use of Deadly 
Force to Arrest: Conflicting and U n certa ^^^  
Standards in the Courts, 12 Creighton LReV..
655 (1978).

Moreover, "[i]n recent years the number o< 
civil suits filed in federal court under 42 U.S.C.)
§ 1981, alleging police misconduct has in- '^  
creased dramatically.” Project, Suing the Pth .•> 
lice in Federal Court, 88 Yale LJ. 781 (1^^^* 
(footnotes omitted).

24 Compare Frisbie v. Collins, 342 U.S. 518,72 
s e t  .509, 96 L.Ed. 541 (1952) and Ker v.TO- 
nois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed 421- ' l l  
(1886). In these cases the Supreme Court nd 
dressed the question of illegality in obtaining 
the physical presence of the accused for 
dictional-due process purposes. See UniUi '  
States V. Toscanino, 500 F'.2d 267 (2nd Of. 
1974), where the Second Circuit noted wt»M  ̂
has since been considered an exception to 
Ker-Frisbie doctrine in cases,where grosi . 
treatment, shocking to the conscience, bad 
been perpetuated us part of the forcible abAifr 
lion of the accused. ;

25. Implicit in our ilecision is the conclualo*.- 
that considerations of judicial integrity dona, 
dictate that an exclusionary rule should be ^  
voked. See State v. Sears, 553 P.2d 907, 811-̂
12 (Alaska 1976), for a di.scussion of ih ii' 
second rationale for the exclusionary rule.

• REVERSED 
ther proceediii 
ion.

BURKE, Ju 
Were it not 

l^v. enactment of 
it'V grave reservat 

of AS 12.25.01 
to join in tl; 
because I beb 
actment of A; 

 ̂ of what it im 
'  acted AS 12.2- 
. erland Statut 
' ed. 1973).

91’ ■

i#--' Supi

Followin 
contendere ti 
narcotic druj 
denial by th< 
District, Aik 

IP to suppress < 
that it was t 

.'. The Supren 
t (1) officers < 

leave the pu 
t ' path, and (2 
: court’s find 

t̂  'were made 
or was othiu 
right to be. 

Reverse



Alaska 53
of an additional exclu- 

would at best achieve 
errent effect. Further- 
view that im|K)sition of 

.> on the particular facts 
>'as clearly unwarranted, 
had probable cause to 
as proceeding in accord- 
departmental directives, 
force permissible under 
roper phraseology of AS 
;en previously construed

d, we think it appropri- 
our holding is not im- 

vent a history of exces- 
s shown, demonstrating 
ents are illusory, we will 
xamine the question of 
ionary deterrent should 
le situation where evi­
ls a result of an arrest 
■d by excessive force.“

uch complaints are collect- 
Action in Connection with 

1 of Civil Rights Act, 42 
I..R.Fed. 519 (1969 & Supp. 
mment. The Use o f Deadly 
Conflicting and Uncertain 
oiirts, 12 Creighton L.Rev.

■ cent years the number of 
cieral court under 42 U.S.C. 
lolice misconduct has in- 
y.” Project, Suing the Po­
rt, 88 Yale L.J. 781 (1979)

V. Collins, 342 U.S. 519, 72 
.541 (1952) and Ker v. lilt- 
7 S.Ct. 225, 30 L.Ed. 421 

ses the Supreme Court ad­
it of illegality in obtaining 
ce of the accused for juris- 
ss purposes. See United 
). 500 F.2d 267 (2nd Cir. 
■econd Circuit noted what 
sidered an exception to the
■ in cases^where gross mis- 
g to the conscience, had

Itart of the forcible abduc-

decision is the conclusion 
of judicial integrity do not 
usionary rule should be in- 
. Sears, 553 P.2d 907, 911- 
for a discussion of this 
the exclusionary rule.

CHILTON V. STATE
c ite  as, A laska, 6 1 1 P.2d 53

REVP.,RSED AND REMANDED for fur- Boochever, J., filed dissenting opinion 
ther proceedings consistent with this opin- in which Matthews, J., joined, 
ion.

BURKE, Justice, concurring.
Were it not for the legislature’s recent 

enactment of AS 11.81.370, I would have 
grave reservations about our interpretation 
of AS 12.25.080. However, I am persuaded 
to join in the opinion of my colleagues 
because I believe that the legislature’s en­
actment of AS 11.81.370 is strong evidence 
of what it intended when it previously en­
acted AS 12.25.080. See 2A C. Sands, Suth­
erland Statutory Construction § 49.11 (4th 
ed. 1973).

Eric CHILTON, Appellant, 
v.

STATE of Alaska, Appellee. 
No. 4148.

Supreme Court of Alaska. 

May 9, 1980.

Following his entry of a plea of nolo 
contendere to the charge of possession of a 
narcotic drug, defendant apjiealed from the 
denial by the Superior Court, First Judicial 
District, Allen T. Compton, J., of his motion 
to suppress certain evidence on the ground 
that it was the product of an illegal search. 
The Supreme Court, Burke, J., held that; 
(1) officers did not have probable cause to 

, leave the public way and enter upon private 
path, and (2) evidence did not support trial 
court’s finding that at time observations 
were made the path was open to the public 
or was otherwise a place where officers had 
right to be.

Reversed.

1. Searches and Seizures «=>3.3(4)
Officer’s observation of things in plain 

view made from place where he has right to 
be does not constitute “search” in constitu­
tional sense; conversely, when observations 
are made from area to which officer has not 
been expressly or impliedly invited, the in­
trusion is an unlawful search unless made 
pursuant to warrant or one of the estab­
lished exceptions to warrant requirement. 
U.S.C.A.Const. Amend. 4. ,> ■■■

2. Searches and Seizures <®=>7(29) ^
Once constitutionality of observation 

by police has been challenged through mo­
tion to suppress, burden is on State to prove 
by preponderance of the evidence that offi­
cer was in place where he had right to be or 
was acting pursuant to exception to war­
rant requirement. U.S.C.A.Const. Amend. 
4.

3. Criminal Law «=> 1158(4)
Any factual determinations made by 

trial court in ruling on motion to suppress 
will be upheld unless clearly erroneous.

4. Searches and Seizures <s=>3.3(2)
For probable cause to exist, facts and 

circumstances within officers’ knowledge 
must be sufficient in themselves to warrant 
man of reasonable caution to believe that 
crime has been or is being committed; more 
than good faith on the part of the officer is 
required.

5. Searches and Seizures 'S=»3.3(3)
Where sole basis for officers’ departure 

from the public way was that they heard 
voices apparently coming from rear of 
apartment building, area where officers had 
previously accosted individuals smoking 
marijuana, officers did not have probable 
cause to venture onto private property sole­
ly on ground that it was area in which past 
crimes had been committed. U.S.C.A. 
Const. Amend. 4.

■ 1 m

k ik r