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O'CONNOR v. MUNICIPALITY OF ANCHORAGE12/15/1995
We renew our consideration of Michael R. O'Connor's appeal of his conviction for driving while intoxicated, Anchorage Municipal Code § 9.28.020. Having considered O'Connor's claims, we affirm his conviction.
To recapitulate the facts of the case: O'Connor was detained by two private citizens, Mssrs. Hugo and Campbell, at a 7-Eleven convenience store. Hugo observed O'Connor pull into the parking lot and concluded that O'Connor was intoxicated. Hugo maneuvered his own car to prevent O'Connor from driving away. He then asked Campbell, the store clerk, to call the police. Campbell observed O'Connor and also concluded that O'Connor was intoxicated. When O'Connor tried to secure a ride from a cab driver, Campbell dissuaded the cab driver from accepting O'Connor as a passenger. The police eventually arrived at the 7-Eleven and arrested O'Connor. O'Connor v. Anchorage, Memorandum Opinion and Judgement No. 2942 (Alaska App., July 13, 1994), pp. 1-2.
O'Connor asserts that the evidence against him should be suppressed because he was subjected to an unlawful arrest by the two private citizens. However, as we noted in our prior opinion, the exclusionary rule does not apply to actions of private citizens unless the private citizens acted in conjunction with, or at the behest of, the government. O'Connor, Memorandum Opinion at 2-3. We therefore remanded this case to the district court for consideration of O'Connor's argument that Hugo and Campbell had acted in conjunction with the police, so that their detention of O'Connor should be considered government action for purposes of the Fourth Amendment and the exclusionary rule.
Following an evidentiary hearing, District Court Judge Gregory J. Motyka concluded that the Anchorage police " either instigated or significantly participated in the actions of . . . Hugo and Campbell." Judge Motyka found that Hugo took action to detain O'Connor (blocking the exit of O'Connor's car) before anyone called the Anchorage police. Judge Motyka further found that Hugo's action was motivated by his own "personal interest in making sure [O'Connor] did not get into his car and drive away, since [Hugo] and his family were on the road at the same time".
O'Connor argues that, even if Hugo and Campbell began their detention of O'Connor without police instigation, their actions later became government action for purposes of the Fourth Amendment. O'Connor notes that, after Hugo and Campbell notified the police of what was occurring at the 7-Eleven store, the police did nothing to dissuade Hugo and Campbell from continuing their detention of O'Connor.
According to testimony presented at the hearing on remand, when the police receive a telephone call like the one in this case (a private citizen informing the police that he or
she is holding a suspected drunk driver), the police dispatcher will neither encourage the private citizen to continue the detention nor suggest that the private citizen release the driver. Rather, the dispatcher will merely say that the police are on their way.
O'Connor argues that this practice constitutes tacit condonation of the private citizen's arrest. He contends that the police, by failing to question the basis for O'Connor's detention, tacitly encouraged Hugo and Campbell to hold O'Connor until patrol officers could arrive to investigate. Therefore, O'Connor argues, any evidence obtained through Hugo and Campbell's actions should be suppressed if it later turns out that Hugo and Campbell lacked probable cause to make an arrest.
O'Connor cites United States v. Reed, 15 F.3d 928, 930-33 (9th Cir. 1994), for the proposition that a private citizen's violation of Fourth Ame
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