Opinion
A-13470
03-16-2022
AMANDA MARTINA STRAWSER BARSUKOFF, Appellant, v. STATE OF ALASKA, Appellee.
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the District Court, Third Judicial District No. 3PA-17-00975 CR, Palmer, William L. Estelle, Judge.
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
SUMMARY DISPOSITION
Amanda Martina Strawser Barsukoff appeals her conviction for driving under the influence. Prior to trial, Barsukoff filed a motion to suppress evidence gathered during the investigative stop, which had occurred at her workplace. In the motion, Barsukoff argued that the officer lacked reasonable suspicion that she posed an imminent public danger because she had just arrived at work for the day and nothing indicated that she was likely to drive again soon. The court held an evidentiary hearing, at which the following testimony was elicited.
AS 28.35.030(a).
On the morning of June 15, 2017, Barsukoff s supervisor, Heather Miller, called 911 and reported that Barsukoff was driving under the influence. Miller stated that she had just left a meeting with Barsukoff and that, during the meeting, Barsukoff smelled of alcohol and admitted that she was under the influence of opiates. At the time of the call, Miller was following Barsukoff s vehicle. As the call ended, Miller reported that Barsukoff had "just cut off a couple cars" while pulling into her workplace parking lot.
An officer arrived at Barsukoff s workplace ten minutes later and told a receptionist that he needed to speak with Barsukoff by her vehicle. Barsukoff met the officer in the parking lot; according to the officer, Barsukoff was emitting an odor of alcohol and her eyes were "watery and moderately bloodshot." After Barsukoff performed poorly on the horizontal gaze nystagmus test and two preliminary breath tests, the officer arrested her.
The officer did not conduct the full battery of standardized field sobriety tests because Barsukoff reported that she had suffered a back injury that would interfere with the more physically demanding tests.
Based on this evidence, the district court concluded that the officer had reasonable suspicion for an investigative stop under Coleman v. State and denied Barsukoff s motion to suppress.
Coleman v. State, 553 P.2d 40, 46 (Alaska 1976) (holding that, under Alaska law, an officer must have "a reasonable suspicion that imminent public danger exists or serious harm to persons or property has recently occurred" in order to conduct an investigatory stop).
On appeal, Barsukoff renews her motion. Having reviewed the record, we agree with the district court that the investigative stop in this case complied with Coleman-and that the officer had reasonable suspicion, if not probable cause, to detain Barsukoff.
Barsukoff also argues that her initial contact with the officer should have dispelled any reasonable suspicion that she drove while impaired. Relying on the fact that the officer told her only that he detected "maybe a hint" of alcohol on her breath, Barsukoff asserts that she was not visibly impaired when she first encountered the officer.
But Barsukoff takes the officer's words out of context. According to the officer's testimony, he smelled a "light to moderate odor of alcohol" when Barsukoff first met him in the parking lot, and this odor became progressively stronger. After Barsukoff volunteered to remove her sunglasses, the officer saw that her eyes were "watery and moderately bloodshot," and he asked if she had been drinking. Only after Barsukoff denied consuming alcohol that day did the officer say, "Okay. Because I'm kind of smelling maybe a hint." And at the evidentiary hearing, when asked if it was "fair to say that [Barsukoff] didn't appear impaired," the officer answered, "Yeah, no."
Under these circumstances, and in light of the recency and strength of the report of impaired driving, the officer had reasonable suspicion that Barsukoff had driven under the influence and could permissibly continue his investigation.
See Hartman v. State, Dep 't. of Admin., Div. of Motor Vehicles, 152 P.3d 1118, 1123-24 (Alaska 2007) (upholding stop of passenger suspected of recently driving another vehicle while under the influence and crashing that vehicle into a ditch); Shearer v. Anchorage, 4 P.3d 336, 340 (Alaska App. 2000) (upholding trial court's conclusion that a person who had driven poorly for miles continued to pose an imminent public danger, even though he had parked his car and entered his garage, based on the trial court's finding that the driver could still get back into the car and resume driving).
The judgment of the district court is AFFIRMED.