recognizing that an officer “might well fear that someone suspected of burglary would carry a weapon and resort to violence”
How later courts described this case
- recognizing that an officer “might well fear that someone suspected of burglary would carry a weapon and resort to violence”
- consent cannot be inferred solely from lack of objection
- “Generally, the law favors the assignability of contractual rights, unless the assignment would add to or materially alter the obligator’s duty or risk.”
Written by the judges who cited it.
The opinion
BRYNER, Chief Judge,
dissenting.
I dissent.
*881 The evidence in this case, when considered in the light most favorable to the state, indicates that Brown was stopped by Officer Stevens of the Anchorage Police Department because he was carrying a portable television in the hallway of his hotel. Brown was frisked for weapons and ordered to identify himself. The state concedes that Brown was reduced to custody at this point. After requiring Brown to produce identification, Officer Stevens questioned him about the location of his room and the manner in which he had paid for it. Brown was not advised of his rights. When Brown indicated that he was staying in room 8, he was told, “Well, let’s go there.” Brown complied. He unlocked the door to his room and was followed inside by Officer Stevens.
In order to justify Officer Stevens’s war-rantless entry of Brown’s room, the state was required to prove, by a preponderance of the evidence, that Brown’s consent was “unequivocal, specific and intelligently given, and not the product of duress or coercion.” Phillips v. State, 625 P.2d 816, 817 (Alaska 1980); Pierce v. State, 627 P.2d 211, 216 (Alaska App.1981). Certainly, an individual’s consent to a warrantless search need not be expressly given and may be inferred from the totality of the circumstances surrounding the search. Yet I see no circumstances from which an “unequivocal, specific and intelligent” consent may be inferred in this case.
The stop and frisk to which Brown was subjected was unquestionably custodial in nature. Almost immediately after being detained, frisked and ordered to produce identification from his wallet, Brown was told to go to his room. He complied with the order. There is nothing in the record to indicate that Brown could reasonably have believed that he was no longer under detention. Nor does the record support an inference that Brown was given a realistic choice when Officer Stevens told him to “go to room 8.”
This court’s obligation to construe the evidence in the light most favorable to the prevailing party should not serve as a basis for automatic approval of a trial judge’s factual determinations. Here, the trial court’s finding of a consent to search is unsupported by the evidence and is therefore clearly erroneous. The trial court’s conclusion that Brown was free to disregard the command to “go to room 8” simply cannot be reconciled with the state’s concession that Brown had been subjected to a custodial stop. On the factual record in this case, the majority’s willingness to accept the trial court’s findings seems to stand the consent requirement on its head. The majority’s decision in effect holds that any person subjected by police to custodial detention must risk forfeiture of his fourth amendment rights if he does not resist or expressly object to potentially unlawful orders.