Opinion
Court of Appeals No. A-11343 No. 6165
04-08-2015
RUSTY K. MEYER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Marjorie Mock, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3PA-11-14 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa White, Judge. Appearances: Marjorie Mock, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Kossler, Judges. Judge KOSSLER.
Rusty K. Meyer was convicted of felony driving under the influence. On appeal, Meyer claims that the superior court should have suppressed the evidence against him because he was subjected to an investigative stop that was not supported by reasonable suspicion. Because we conclude that the police contact with Meyer did not amount to an investigative stop, we affirm the superior court's decision to deny the motion to suppress.
Background facts and proceedings
On New Year's Eve 2010, a number of Houston firefighters were providing security for fireworks businesses that were anticipating a high volume of sales. The firefighters were also overseeing the businesses' compliance with a city ordinance that prohibited the sale of fireworks to anyone under eighteen years old.
See Houston Municipal Code 08.05.034(F)(3).
At about 9:40 p.m., one of these firefighters, Christian Hartley, called Houston Police Officer Brandon Gray to report that a man driving an orange all-terrain vehicle (ATV) had been refused service at Gorilla Fireworks because he had no identification. This man, later identified as Rusty Meyer, had then driven across the street to TNT Fireworks. Hartley was concerned that Meyer was creating a traffic hazard by driving his ATV alongside the highway.
Officer Gray responded to Hartley's call by parking his patrol car in the Gorilla Fireworks parking lot. From there, the officer observed Meyer leave the parking lot of TNT Fireworks and drive back toward Gorilla Fireworks. While this was occurring, Officer Gray heard Hartley broadcast over the radio that Meyer was "extremely upset" because he had not been able to purchase fireworks at TNT Fireworks.
Officer Gray then heard over the radio that Meyer had stopped his ATV in front of Gorilla Fireworks, and that the firefighters were requesting police assistance because of a "verbal disturbance."
Officer Gray parked his patrol car ten to fifteen yards away from Meyer's ATV and walked toward Meyer, who was standing near the fireworks stand. As he did so, he heard Meyer call one of the firefighters a "douche bag." Officer Gray motioned to Meyer to come toward him and said, "What's this I hear about you calling him a douche bag?"
As soon as Officer Gray contacted Meyer, he observed that Meyer had bloodshot, watery eyes. At Officer Gray's request, Meyer removed his helmet, and Officer Gray then smelled a strong odor of alcohol coming from Meyer. The ensuing investigation — including a DataMaster breath test that showed that Meyer's blood alcohol level was .116 percent — ultimately led to the State charging Meyer with felony driving under the influence.
AS 28.35.030(a), (n). Meyer was also charged with reckless endangerment, AS 11.41.250, but that charge was dismissed.
Before trial, Meyer moved to suppress the evidence arising from Officer Gray's contact, arguing that the officer had subjected him to an investigative stop without reasonable suspicion.
See Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).
Following an evidentiary hearing, Superior Court Judge Vanessa White ruled that Officer Gray's contact with Meyer amounted to an investigative stop for purposes of the Fourth Amendment, but she concluded that Officer Gray had reasonable suspicion to seize Meyer.
After Judge White denied the motion to suppress, a jury convicted Meyer of felony driving under the influence.
Why we conclude that the police contact did not amount to a seizure
On appeal, Meyer claims that Officer Gray's investigative stop was not supported by reasonable suspicion of criminal activity as required under Coleman v. State. But we conclude that Officer Gray's initial contact with Meyer did not amount to a Fourth Amendment seizure. It is therefore unnecessary to address whether reasonable suspicion supported this initial contact.
Id.
It is well-settled that "[a] police officer can approach a private citizen and direct questions to that person without turning the encounter into an investigative stop." Alaska courts employ an objective, reasonable person standard in assessing whether police contact with a citizen should be classified as a mere citizen contact that requires no reasonable suspicion, or instead a Fourth Amendment seizure. A Fourth Amendment seizure occurs when an officer "by means of physical force or a show of authority, in some way restricts the liberty of a citizen." For these purposes, a "show of authority" occurs when police conduct leads a reasonable person who is innocent of any crime to believe he is not free to leave or break off questioning.
Adams v. State, 103 P.3d 908, 910 (Alaska App. 2004) (citing Romo v. Anchorage, 697 P.2d 1065, 1068 (Alaska App. 1985)).
Waring v. State, 670 P.2d 357, 364 (Alaska 1983).
Barrows v. State, 814 P.2d 1376, 1378 (Alaska App. 1991).
Romo, 697 P.2d at 1068 (citing Waring, 670 P.2d at 364).
Because the average person feels some obligation to respond when confronted by a police officer, our supreme court in Waring v. State emphasized that a police contact becomes a seizure only if the officer adds to the inherent pressures of a police encounter "by engaging in contact which a reasonable [person] would view as threatening or offensive even if coming from another private citizen." According to Professor LaFave,
Waring, 670 P.2d at 364 (quoting 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.2, at 53, 54 (1st ed. 1978) (footnote and internal quotation marks omitted)).
This would include such tactics as pursuing a person who has attempted to terminate the contact by departing, continuing to interrogate a person who has clearly expressed a desire not to cooperate, renewing an encounter with a person who earlier responded fully to police inquiries, calling to such a person to halt, holding a person's identification papers or other property, conducting a consensual search of the person in an "authoritative manner," bringing a drug-sniffing dog toward the person or his property, intercepting a phone call for the suspect, blocking the path of the suspect, physically grabbing and moving the suspect, drawing a weapon, calling for backup, and encircling the suspect by many officers[.]
4 Wayne R. LaFave, Search and Seizure § 9.4(a), at 586-90 (5th ed. 2012) (footnotes omitted).
Thus, the police "do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen." Nor is a police contact converted into a seizure simply because the officer is in uniform and armed. Even physical contact by the officer is acceptable if it is limited to normal means of attracting a person's attention.
Waring, 670 P.2d at 363 (quoting Florida v. Royer, 460 U.S. 491, 497 (1983)).
Barrows, 814 P.2d at 1379; see also Royer, 460 U.S. at 497 ("Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure[.]").
4 LaFave, Search and Seizure § 9.4(a), at 585 (citation omitted).
In this case, the superior court found that Officer Gray parked his patrol car ten yards away from Meyer and did not activate his overhead lights or block Meyer from leaving. Nor did the officer draw his weapon or direct Meyer to stop. Instead, Officer Gray gestured at Meyer to approach, and said — in a confrontational tone — "What's this I hear about you calling him a douche bag?" By Meyer's own admission, he had called the firefighter a "douche bag" two or three times. Although Officer Gray clearly conveyed his displeasure by confronting Meyer about his language, the officer did so without a direct show of police authority. He did not, at that moment, seize Meyer for purposes of the Fourth Amendment.
We acknowledge that Officer Gray's contact with Meyer soon ripened into a seizure, but by that time the officer had developed reasonable suspicion that Meyer was under the influence.
For these reasons, we conclude that the superior court properly denied Meyer's motion to suppress.
Torrey v. Hamilton, 872 P.2d 186, 188 (Alaska 1994) (appellate court can affirm on any legal theory revealed by the record, including one rejected by the trial court); see also Russell v. Anchorage, 626 P.2d 586, 588 n.4 (Alaska App. 1981).
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Conclusion
We AFFIRM the judgment of the superior court.