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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


JEROMY FRANCIS HURLBURT,
                                                      Court of Appeals No. A-11999
                            Appellant,               Trial Court No. 3KN-12-431 CR

                     v.
                                                               OPINION
STATE OF ALASKA,

                            Appellee.                    No. 2601 — June 1, 2018


              Appeal from the Superior Court, Third Judicial District, Kenai,
              Carl Bauman, Judge.

              Appearances: Olena Kalytiak Davis, Attorney at Law, under
              contract with the Office of Public Advocacy, Anchorage, for the
              Appellant. Michael Sean McLaughlin, Assistant Attorney
              General, Office of Criminal Appeals, Anchorage, and Jahna
              Lindemuth, Attorney General, Juneau, for the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
              Superior Court Judge. *

              Judge ALLARD.


              Jeromy Francis Hurlburt was the driver of a motor vehicle that veered off
the road and onto a bike path, seriously injuring two female joggers. During the

   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
investigation that followed, the lead investigating officer erroneously told Hurlburt that
he was required to submit to a blood test because he had caused an injury accident. In
response, Hurlburt expressed concern about what the blood test might show and he told
the officer that he had used methamphetamine “for the first time” four days earlier.
Based, in part, on this statement, the officer administered field sobriety tests to Hurlburt.
Hurlburt failed the field sobriety tests, and was then arrested for driving under the
influence. A later blood test revealed significant amounts of methamphetamine in
Hurlburt’s system.
              Prior to trial, Hurlburt’s attorney moved to suppress Hurlburt’s statements
regarding his prior drug use and the results of the blood test. Hurlburt argued that this
evidence should be suppressed as the fruit of an unlawful seizure — an unlawful seizure
that he contended occurred when the officer erroneously told him that he was required
to submit to a mandatory blood test. Hurlburt also argued that the officer lacked
reasonable suspicion to conduct the field sobriety tests that led to his arrest, and the
blood test results should also be suppressed on that basis. The superior court rejected
both of these arguments and denied Hurlburt’s motion to suppress. Hurlburt was later
convicted, following a jury trial, of driving under the influence and two counts of first-
degree assault (for recklessly causing serious physical injury to the two joggers by means
of a dangerous instrument).1
              On appeal, Hurlburt challenges the superior court’s denial of his motion to
suppress. For the reasons explained here, we conclude that the officer’s mistaken
statement about the mandatory blood test did not result in an unlawful seizure. We also
conclude that there was reasonable suspicion to conduct the field sobriety tests.




   1
       AS 11.41.200(a)(1).

                                           –2–                                         2601

Accordingly, we uphold the superior court’s denial of Hurlburt’s suppression motion,
and we affirm Hurlburt’s convictions.


        Background facts and prior proceedings
              On March 21, 2012, Jeromy Hurlburt was driving on Kalifornsky Beach
Road, a short distance from its intersection with the Sterling Highway. As Hurlburt’s car
approached a curve in the road, Hurlburt drove straight ahead — crossing the center line,
and cutting off an oncoming driver. Hurlburt’s car then continued in a straight line off
the road and onto a bike path, striking and seriously injuring two women who were
jogging on the path.
              There was no apparent explanation for this accident.          The driving
conditions were not hazardous, and the road was not icy. Witnesses to the accident later
reported that it looked as though the driver had simply failed to follow the curve of the
road.
              Sergeant Stace Escott of the Soldotna Police Department and Sergeant
Eugene Fowler of the Alaska State Troopers were among the first officers to respond to
the accident scene. Sergeant Escott took the lead in the investigation, which included
coordinating the medical response, securing and documenting the site, and interviewing
the witnesses at the scene before they left.
              After speaking to the victims and collecting the names of some of the
witnesses who saw the accident, Escott asked Hurlburt what happened. Hurlburt claimed
that the accident was caused by a simultaneous failure of several mechanical systems in
his car. Hurlburt told Escott that, as he was driving, he felt or heard something break in
his car and, immediately afterwards, the steering on the car locked up, the gas pedal
locked up, and the brakes locked up. Hurlburt said that there was nothing he could do
to stop the car or to steer it back onto the road.

                                           –3–                                      2601

                 During Hurlburt’s initial interaction with Escott, Hurlburt was shaking and
he appeared highly emotional. But Escott did not detect the smell of alcohol, and he
considered Hurlburt’s emotional behavior to be appropriate to the situation. At the
evidentiary hearing, Escott testified that he did not think that Hurlburt was impaired at
that time.
                 However, Escott believed (erroneously) that Alaska law required Hurlburt
to submit to a mandatory blood test based solely on the fact that Hurlburt had caused a
serious injury accident. (The other officers at the scene also appeared to be under the
same mistaken impression.)
                 This mistaken view of the law was likely based on an overly literal reading
of AS 28.35.031(g). This subsection of Alaska’s “implied consent” law provides, in
relevant part:
                 A person who operates or drives a motor vehicle in this state
                 shall be considered to have given consent to a chemical test
                 or tests of the person’s breath and blood for the purpose of
                 determining the alcoholic content of the person’s breath and
                 blood and shall be considered to have given consent to a
                 chemical test or tests of the person’s blood and urine for the
                 purpose of determining the presence of controlled substances
                 in the person’s blood and urine if the person is involved in a
                 motor vehicle accident that causes death or serious physical
                 injury to another person.2


In State v. Blank, however, the Alaska Supreme Court held that it would be
unconstitutional to require a defendant to submit to a chemical test based only on the fact


   2
       AS 28.35.031(g) (“The test or tests may be administered at the direction of a law
enforcement officer who has probable cause to believe that the person was operating or
driving a motor vehicle in this state that was involved in an accident causing death or serious
physical injury to another person.”).

                                             –4–                                         2601

that the defendant caused a serious injury accident.3 Instead, three other requirements
must also be met: (1) there must be probable cause to arrest the defendant for driving
under the influence — although the arrest need not be contemporaneous; (2) there must
be case-specific exigent circumstances that preclude the police from timely applying for
and obtaining a warrant for the chemical test;4 and (3) the chemical test must be
performed in a “reasonable manner.”5
              The constitutional principles the Alaska Supreme Court relied on in Blank
were established in Schmerber v. California, a 1966 decision by the United States
Supreme Court.6 More recent United States Supreme Court decisions have further
restricted the circumstances under which the police can lawfully obtain a warrantless
blood test. In Missouri v. McNeely, the Court held that the natural dissipation of alcohol
or controlled substances in a person’s system did not create a per se exigency justifying
a warrantless blood test.7 And in Birchfield v. North Dakota, the Court held that
warrantless breath tests, but not warrantless blood tests, could be administered under the
search incident to arrest exception to the warrant requirement.8



   3
       See State v. Blank, 90 P.3d 156, 160-62 (Alaska 2004); see also Blank v. State, 3 P.3d
359, 369-370 (Alaska App. 2000).
   4
       Id.
   5
       Id.
   6
       See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).
   7
       See Missouri v. McNeely, 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013).
   8
       See Birchfield v. North Dakota, __ U.S. __, 136 S.Ct. 2160, 2185, 195 L.Ed.2d 560
(2016) (“Because breath tests are significantly less intrusive than blood tests and in most
cases amply serve law enforcement interests, we conclude that a breath test, but not a blood
test, may be administered as a search incident to a lawful arrest for drunk driving.”).

                                           –5–                                         2601

              The Alaska Supreme Court issued Blank in 2004. However, the legislature
has never acted to modify the statutory language of AS 28.35.031(g) to reflect the
constitutional limitations recognized in Blank. As a result, the burden falls on the police
to be aware of those limitations on their authority, notwithstanding the literal language
of the implied consent statute.
              Here, the record shows that Sergeant Escott was not aware of the
constitutional requirements for obtaining a warrantless blood test. Escott therefore told
Hurlburt that he would be required to submit to a mandatory blood test as part of the
investigation into the cause of the accident. In response, Hurlburt expressed concern
about what the blood test might show, and he admitted to Escott that he had smoked
marijuana five days earlier and that he had tried methamphetamine “for the first time”
four days earlier. Hurlburt denied taking any drugs or being under the influence at the
time of the accident.
              Based, in part, on Hurlburt’s admission to recent illegal drug use, Sergeant
Escott made the decision to administer field sobriety tests to Hurlburt. Escott later
testified at an evidentiary hearing that he made the decision to administer field sobriety
tests based on the “totality of circumstances” known to him, which included (1) the
suspicious nature of the accident, (2) an earlier comment by Trooper Fowler to Escott
that Hurlburt was likely “good for something,” and (3) Hurlburt’s statements about his
prior illegal drug use.
              Trooper Fowler’s comment to Escott about Hurlburt being “good for
something” occurred relatively early in the investigation. While Sergeant Escott was
busy coordinating the investigation and the medical response, Trooper Fowler was able
to independently observe Hurlburt’s actions and demeanor. Based on those observations,
Trooper Fowler believed that Hurlburt was likely under the influence of a controlled
substance, probably a stimulant:

                                          –6–                                        2601

             And while I was watching him it — he seemed to not be able
             to stand still. He was pacing back and forth. He was
             swinging his arms. His movements — he — he was touching
             his face. Seemed to be continually doing this repetitive type
             behavior. He was wringing his hands. He appeared to be
             very nervous and — and his movements were — were
             exaggerated in nature and they seemed to be without stop.
Trooper Fowler attempted to communicate his suspicion about Hurlburt’s impairment
by telling Sergeant Escott that Hurlburt “look[ed] like he’d be good for something.”
             At the evidentiary hearing, Trooper Fowler testified that he gestured to
Hurlburt when he made the comment “good for something,” and his intent was to draw
Escott’s attention to Hurlburt’s odd behavior and to alert Escott to the need for further
investigation of Hurlburt’s suspected impairment.
             Sergeant Escott admitted, however, that he did not initially ascribe any
significance to Trooper Fowler’s comment. At the evidentiary hearing, Escott testified
that the comment did not give him “any pause or concern” when it was made, and did
not make Escott revise his earlier impression that Hurlburt was not impaired. However,
he also testified that, after Hurlburt admitted to using methamphetamine, everything
started to “add up in [Escott’s] mind” and the need for field sobriety tests became clear.
             Hurlburt failed the field sobriety tests, and was then arrested for driving
under the influence. Following the arrest, Escott applied for a search warrant to test
Hurlburt’s blood for controlled substances.
             However, when Escott presented his search warrant application to the on-
call Anchorage magistrate judge, the magistrate judge told Escott — erroneously — that
there was no need for a warrant because the police already had the authority to
administer a warrantless blood test to Hurlburt under AS 28.35.031(g). Based on this
erroneous advice, Escott transported Hurlburt to the hospital, where a nurse drew


                                          –7–                                       2601

Hurlburt’s blood. The nurse later testified that Hurlburt had fresh needle marks on his
arm. The blood test revealed significant amounts of methamphetamine in Hurlburt’s
system.9 At trial, the State’s expert testified that the level of methamphetamine in
Hurlburt’s system was inconsistent with his claim that he used methamphetamine “for
the first time” four days earlier.
              Prior to trial, Hurlburt’s defense attorney moved to suppress the blood test
results on three separate grounds. The defense attorney argued first that Hurlburt was
unlawfully “seized” when Sergeant Escott erroneously told him that he would have to
submit to a mandatory blood test, and he asserted that the blood test results (and his
statements to Escott) should be suppressed as the fruit of this unlawful seizure. The
defense attorney argued next that Sergeant Escott lacked reasonable suspicion to conduct
the field sobriety tests because Sergeant Escott did not personally observe any signs of
impairment, and he asserted that the blood test results should be suppressed as the fruit
of that unlawful search. Lastly, the defense attorney argued that the warrantless blood
test was itself unconstitutional because there was clearly time to obtain a warrant — even
though the magistrate judge erroneously refused to issue one.
              The superior court rejected all three grounds for suppression and denied
Hurlburt’s motion to suppress in a written order.
              Hurlburt’s case then went to trial. At trial, the State relied on the results of
the blood test, Trooper Fowler’s observations of Hurlburt’s erratic behavior, Hurlburt’s
inability to pass the field sobriety tests, and the nurse’s observations of fresh needle
tracks on Hurlburt’s arm. The State also presented expert testimony from mechanics
who had examined Hurlburt’s car and concluded that the accident was not caused by any
mechanical failures, as Hurlburt had claimed.


   9
       The blood test also revealed the presence of inactive marijuana metabolites.

                                           –8–                                          2601

              Hurlburt’s defense was that he was sober at the time of the accident, but that
he had orally ingested methamphetamine after the accident happened in an ill-conceived
attempt to keep the police from discovering the methamphetamine in his car.
              The jury rejected this defense and convicted Hurlburt of driving under the
influence and two counts of first-degree assault (one count for each victim) for recklessly
causing serious physical injury by means of a dangerous instrument. As a third felony
offender, Hurlburt faced a presumptive range of 15 to 20 years on each first-degree
assault conviction.10 At sentencing, the trial court imposed a composite sentence of 19
years and 9 months to serve.
              This appeal followed.


        Hurlburt’s claims on appeal
              On appeal, Hurlburt renews his claim that he was “unlawfully seized” when
Sergeant Escott erroneously told him that he was required to submit to a blood test.
Hurlburt also renews his claim that Escott lacked reasonable suspicion to conduct the
field sobriety tests that led to Hurlburt’s arrest.11 We find no merit to either claim.
              As the State correctly points out, Hurlburt was not subjected to an
“unlawful seizure” when Sergeant Escott erroneously told him that he would have to
submit to a blood test because Hurlburt was already “seized” for purposes of the Fourth
Amendment long before Escott made this erroneous statement.12 As the driver of a
motor vehicle who had just caused a serious accident that had resulted in serious injuries


   10
        See former AS 12.55.125(c)(4) (pre-2016 version).
   11
      Hurlburt does not renew his claim that the warrantless blood test was independently
unconstitutional.
   12
        Pooley v. State, 705 P.2d 1293, 1305 (Alaska App. 1985).

                                           –9–                                        2601

to two pedestrians, Hurlburt was not free to leave the accident scene until he had
complied with his obligations to provide various information mandated by law, and the
police had completed that portion of the investigation. The testimony at the evidentiary
hearing makes this clear. Sergeant Escott and Trooper Fowler both testified that,
although Hurlburt’s movements were not closely supervised, they were both watching
Hurlburt to make sure that he did not leave. Contrary to Hurlburt’s contention, Sergeant
Escott’s statement about the mandatory blood test did not result in an unlawful seizure,
instead it took place within an ongoing investigative stop in which Hurlburt had already
been lawfully seized.
              Nor is there anything to suggest that Sergeant Escott’s erroneous statement
about the mandatory blood test unlawfully extended this investigative stop. Indeed, the
recording of the investigative stop indicates that the police were still collecting basic
information from Escott — such as the identity of the legal owner of the car and how to
reach the owner — at the time this statement was made.
              There is likewise no reason to believe that the investigative stop in this case
would have ended without any further investigation of Hurlburt’s suspected impairment.
Indeed, in many respects, Hurlburt’s case closely resembles a Fifth Circuit case, United
States v. Ragsdale, that is discussed approvingly in Professor LaFave’s treatise on Fourth
Amendment search and seizure.13
              Like the present case, Ragsdale involved two law enforcement officers
working closely together as a team during an investigative stop.14 One of the officers
noticed a gun on the floor of the defendant’s vehicle and alerted (or, rather, tried to alert)


   13
      See United States v. Ragsdale, 470 F.2d 24, 30 (5th Cir. 1972); see also, 2 Wayne R.
LaFave, Search and Seizure § 3.5(c), at 356 (5th ed. 2012) (discussing Ragsdale).
   14
        Ragsdale, 470 F.2d at 25-26.

                                           – 10 –                                       2601

the other officer to the gun.15 The other officer subsequently opened the door of the
vehicle and found the gun.16 It later turned out, however, that the officer who opened the
door had not heard the first officer’s comment about the gun.17 The Fifth Circuit
nevertheless upheld the search as lawful because it concluded that if the second officer
“had not commenced the search when he did, [the first officer] would surely have
commanded it, or would have put Ragsdale in [the second officer’s] custody and
performed it himself.”18 In his discussion of Ragsdale, Professor LaFave cautions
against overuse of this “inevitable discovery” or “inevitable communication” rationale.19
But he also concludes that “given the rather unusual facts presented in Ragsdale, the
above result is not open to serious question.”20
               We come to a similar conclusion based on the unusual facts presented here.
That is, we conclude that had Sergeant Escott not conducted the field sobriety tests when
he did, Trooper Fowler would have realized that his attempt to communicate his
suspicions about Hurlburt’s impairment to Escott had failed, and Fowler would have
either made clear to Escott that field sobriety tests were required or he would have
conducted the field sobriety tests himself. In either case, however, the investigative stop
would not have been over until further investigation of Hurlburt’s level of impairment
occurred.


   15
        Id. at 26.
   16
        Id.
   17
        Id.
   18
       Id. at 30 (concluding that the search of the vehicle “invaded no Fourth Amendment
protection which Ragsdale could claim”).
   19
        2 Wayne R. LaFave, Search and Seizure § 3.5(c), at 356-58 (5th ed. 2012).
   20
        Id. at 356.

                                          – 11 –                                     2601

              For somewhat similar reasons, we find no merit to Hurlburt’s challenge to
the reasonable suspicion ruling in this case. Reasonable suspicion to conduct field
sobriety tests exists when an officer has a “particularized and objective basis” for
suspecting that a motorist is under the influence of either alcohol or a controlled
substance.21 Here, Escott testified that he made the decision to conduct field sobriety
tests based on (1) the suspicious nature of the accident, (2) Trooper Fowler’s statement
about Hurlburt being “good for something,” and (3) Hurlburt’s admission regarding
recent illegal drug use.
              On appeal, Hurlburt contends that Trooper Fowler’s comment “good for
something” could not be considered as part of the totality of circumstances justifying the
field sobriety tests. We disagree. Although the record indicates that Escott did not
immediately understand the meaning of this comment when it was first made, the record
also suggests that Escott started to appreciate its significance after Hurlburt admitted to
his recent drug use. Moreover, if nothing else, Escott was aware that Fowler had
significant suspicions about Hurlburt that would need to be followed up on before the
investigation could be considered complete. Given this, we conclude that the existence
of this communication (however poorly understood) could nevertheless be considered
as part of the “totality of circumstances adding up in [Escott’s] head” that led to the
decision to conduct field sobriety tests.
              We note, however, that this is a different rationale than the one relied on by
the State. On appeal, the State contends that Trooper Fowler’s observations of
Hurlburt’s impairment could be directly imputed to Escott “under the long-standing
principle that information in the possession of one law enforcement officer is attributable



   21
      See Galimba v. Anchorage, 19 P.3d 609, 612 (Alaska App. 2001); McCormick v.
Anchorage, 999 P.2d 155, 160 (Alaska App. 2000).

                                            – 12 –                                    2601

to another.” In support of this purported “long-standing principle,” the State cites our
decision in State v. Prater.22 According to the State, Prater stands for the principle that
any relevant information in one law enforcement officer’s possession is automatically
imputed to the investigating officer, even if that information was never actually
communicated to the investigating officer.
              But our holding in Prater is much narrower than the State recognizes. The
question presented in Prater was whether a patrol officer who stopped a suspected drunk
driver based on a police bulletin had to be personally aware of the factual basis for the
police bulletin or whether it was sufficient that the dispatcher who issued the bulletin had
the necessary factual basis for the requested investigative stop.23 In accordance with the
United States Supreme Court’s decision in United States v. Hensley, we held that an
investigative stop made in objective reliance on a police bulletin is justified if the
dispatcher or officer who initiated the bulletin possessed reasonable suspicion of
imminent public danger justifying the stop.24
              Prater therefore stands for the basic legal principle that law enforcement
officers who act at the directive or request of other law enforcement officers do not
violate a defendant’s protected constitutional rights — provided that the law enforcement
officer or agency issuing the directive or request has the requisite factual basis for the

   22
        State v. Prater, 958 P.2d 1110, 1111-12 (Alaska App. 1998).
   23
        Id.
   24
       Prater, 958 P.2d at 1113 (internal citations omitted); see also United States v.
Hensley, 469 U.S. 221, 231 (1985) (holding that an investigative stop based on a wanted flyer
or police bulletin should be upheld if (i) the officer who conducted the stop acted “in
objective reliance” on the flyer or bulletin, (ii) the officer who issued the flyer or bulletin
possessed a reasonable suspicion justifying the stop, and (iii) the stop that in fact occurred
was not significantly more intrusive than would have been permitted by the officer who
issued the bulletin).

                                            – 13 –                                       2601

requested action.25 This widely accepted principle of law is sometimes referred to as the
“vertical” application of the collective knowledge doctrine,26 to distinguish it from the
much broader (and more controversial) “horizontal” collective knowledge doctrine
alluded to in the State’s brief.27
              Under the horizontal application of the collective knowledge doctrine, some
courts will automatically impute knowledge from one law enforcement officer to another,
even in the absence of any direct communication or request for action.28 Courts that have
adopted this more expansive approach to the collective knowledge doctrine have
generally done so under the theory that a “presumption of communication” among fellow
officers working closely together “often will reflect what has actually taken place” and



   25
       Cf. Hensley, 469 U.S. at 231 (describing this rule as based on common sense because
it minimizes the volume of information that must be transmitted and facilitates prompt and
efficient police action).
   26
       In Prater, we referred to the collective knowledge doctrine as the “fellow officer” or
“police team” rule. See Prater, 958 P.2d at 1111.
   27
       For a comprehensive overview of the vertical and horizontal applications of the
collective knowledge doctrine, see Derik T. Fettig, Who Knew What When? A Critical
Analysis of the Expanding Collective Knowledge Doctrine, 82 UMKC L. Rev. 663, 672
(2014); see also Simon Stern, Constructive Knowledge, Probable Cause, and Administrative
Decisionmaking, 82 Notre Dame L. Rev. 1085, 1110-11 (2007) (distinguishing between
collective knowledge doctrines that rely on some type of direct communication between the
officers and criticizing a “no communication” approach that views law enforcement officers
working together as though they are acting as “a single organism” with a collective mind).
   28
       4 Wayne R. LaFave, Search and Seizure § 9.5(j), at 822-23 (5th ed. 2012) (The
Hensley situation, where action was requested but the underlying factual basis was not
communicated, must be distinguished from the situation in which neither the request nor the
factual basis is communicated, but the officer making the Terry stop later relies upon the fact
that a fellow officer possessed the requisite reasonable suspicion at the time the stop
occurred.”).

                                           – 14 –                                        2601

that “communication among officers during the exigencies of a stop … may often be
subtle and nonverbal.”29
               This expansive approach to the collective knowledge doctrine has been
criticized by other courts and commentators, particularly when it leads to a finding of
reasonable suspicion or probable cause only by “aggregat[ing] bits and pieces of
information from ... myriad officers.”30 Neither this Court nor the Alaska Supreme Court
has directly addressed to what extent Alaska law has adopted, or should adopt, this
broader version of the collective knowledge doctrine.31 Nor do we need to resolve that
issue here because we conclude that reasonable suspicion to conduct the field sobriety
tests existed, even without Trooper Fowler’s observations of Hurlburt’s impairment
being imputed to Sergeant Escott.


        Conclusion
               The judgment of the superior court is AFFIRMED.




   29
        4 Wayne R. LaFave, Search and Seizure § 9.5(j), at 823.
   30
       4 Wayne R. LaFave, Search and Seizure § 9.5(j), at 823, 823 n.571 & 572 (5th ed.
2012); see also United States v. Massenburg, 654 F.3d 480, 495 (4th Cir. 2011) (criticizing
the horizontal expansion of the collective knowledge doctrine as undermining the purpose
of the exclusionary rule); State v. Rahier, 849 N.W.2d 212, 217 (N.D. 2014) (noting the
danger that unjustified police action will be taken “in the hopes it is later validated by tallying
the knowledge of every officer and agency involved in the case”).
   31
      See, e.g., Newsom v. State, 199 P.3d 1181, 1184-5 (Alaska App. 2009) (noting the
narrowness of the Prater holding and declining to apply an expanded “community of
knowledge” doctrine without better briefing on that issue).

                                             – 15 –                                         2601

