Opinion
Court of Appeals No. A-9956.
March 12, 2008.
Appeal from the District Court, Third Judicial District, Anchorage, Gregory J. Motyka and J. Patrick Hanley, Judges, Trial Court No. 3AN-06-11090 CR.
Henry E. Graper III, Gorton, Logue Graper, Anchorage, for the Appellant. Amy K. Doogan, Assistant Municipal Prosecutor, and James Reeves, Municipal Attorney, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Devon K. Spencer, following a bench trial with stipulated facts, was convicted of driving with a revoked license. Spencer appeals the denial of his motion to dismiss in which he alleged he was subject to an unlawful investigatory stop.
Anchorage Municipal Code 9.28.019(B).
Spencer argues he was illegally seized when Anchorage Police Officer Anthony Rollins pulled him over. But we conclude Officer Rollins's stop of Spencer was supported by reasonable suspicion and affirm the judgment of the district court.
Facts and proceedings
On September 25, 2006, Officer Rollins learned of a shooting that had occurred the night before at about 12:30 a.m. According to the report, someone in a dark-colored, older-model, medium-sized, Blazer-style vehicle with tinted windows followed another vehicle and shot at it approximately twenty times. Despite the number of shots fired, no one was injured in the shooting. The shooting took place in the area of Bitterroot Circle, near Sixth Avenue and Boniface Parkway.
While on patrol at 11:30 p.m. on the 25th of September, about twenty-three hours after the shooting, Officer Rollins turned eastbound onto Sixth Avenue from Boniface and saw a vehicle matching the description of the suspect vehicle. The vehicle, a black 1984 Blazer, was parked on the side of the road near Bitterroot, about one to two hundred yards from where the shooting had taken place. Officer Rollins was concerned that the shooters had returned to "continue what they had started the night before."
Officer Rollins was driving in the wrong direction to make contact with the vehicle, so he turned around. As Officer Rollins turned around, the driver of the vehicle drove away. The officer turned on his overhead lights, but the suspect vehicle continued driving down the street to a trailer park where it stopped. The two passengers jumped out and ran away. Officer Rollins made contact with the driver, Spencer.
After investigation, Officer Rollins charged Spencer with driving with a revoked license. Spencer filed a motion to dismiss the charge, arguing the officer did not have reasonable suspicion to stop him. The Municipality of Anchorage opposed the motion, and District Court Judge Gregory J. Motyka held an evidentiary hearing at which Officer Rollins testified.
In denying Spencer's motion, Judge Motyka found that Spencer's vehicle was similar to the description of the shooter's vehicle; Spencer was parked within one to two hundred yards of where the shooting had taken place; the shooting occurred less than twenty-four hours before; Spencer's vehicle was there at the same time of day the shooting had occurred; and that Spencer drove away as soon as the officer turned around to make contact with him. Judge Motyka ruled that Officer Rollins had been justified in stopping Spencer "given the fact that no injuries had occurred the night before and there was the possibility of a second attempt in progress."
After the district court denied his motion to suppress, Spencer went to trial before District Court Judge J. Patrick Hanley on stipulated facts. Judge Hanley found Spencer guilty of driving with a revoked license.
Discussion Why we conclude the officer had reasonable suspicion to stop Spencer
An officer may conduct an investigative stop if the officer has a reasonable suspicion that imminent public danger exists or that serious harm to persons or property has recently occurred. A reasonable suspicion is one that has an articulable basis in the "totality of the circumstances observed by the officer in light of the officer's knowledge." The standard applied to investigatory stops is a flexible standard that weighs factors such as the extent of danger threatened by a potential crime or the seriousness of harm resulting from a crime that has already been committed, the imminence of the threat or recentness of the crime, the unavailability of investigative alternatives, the strength of the officer's reasonable suspicion, and the intrusiveness of the stop. Furtive actions and flight at the approach of police officers provide strong indicia of mensrea and can be used to support reasonable suspicion. The fundamental inquiry is whether "a prompt investigation [was] required . . . as a matter of practical necessity."
Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).
Ozhuwan v. State, 786 P.2d 918, 921 (Alaska App. 1990).
Zemljich v. Anchorage, 151 P.3d 471, 474-75 (Alaska App. 2006); State v. G.B., 769 P.2d 452, 455-56 (Alaska App. 1989); Dimascio v. Anchorage, 813 P.2d 696, 698-99 (Alaska App. 1991).
See Rock v. State, 802 P.2d 998, 999 (Alaska App. 1990).
Coleman, 553 P.2d at 46 (quoting Goss v. State, 390 P.2d 220, 224 (Alaska 1964)).
Spencer argues the district court erred in finding reasonable suspicion. He argues the description of the shooter's vehicle was vague and general. He also argues the public danger posed by the shooter was not imminent at the time the officer contacted him because the time between the shooting and the contact was considerable — "between twenty-four hours if not days." However, the lower court found the shooting occurred less than twenty-four hours before the officer's contact with Spencer, and the evidence supports this finding. Spencer does not argue the vehicle he was driving did not match the description of the shooter's vehicle. He instead argues the description of the shooter's vehicle was vague and general.
Considering the totality of the circumstances, we believe a prompt investigation was required as a matter of practical necessity. The crime, a report of twenty shots being fired, was serious. Spencer's vehicle was similar to the description of the shooter's vehicle, and his vehicle was parked in the same area as the shooting, at the same time of day, less than twenty-four hours later. The officer could reasonably suspect that the people who had committed the shooting the day before had returned to finish the job. Spencer's behavior of driving away when the officer turned around to make contact with him added to the officer's reasons for believing Spencer may have been involved in the shooting. The totality of the circumstances gave the officer reasonable suspicion to make contact with Spencer.
Id.
In reaching this decision, we note that the officer's response was minimally intrusive. After the officer found Spencer's license was revoked, he gave Spencer a criminal citation for driving with a revoked license and released him. And, had the officer not made contact with Spencer at that time, it would have been difficult for the officer to locate him later and the risk of a shooting could have increased.
Id. at 46 n. 19.
[P]olice officers must be permitted to act before their reasonable belief is verified by escape or fruition of the harm it was their duty to prevent. "A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer."
Gutierres v. State, 793 P.2d 1078, 1081 (Alaska App. 1990) (quoting United States v. Holland, 510 F.2d 453, 455 (9th Cir. 1975) (quoting Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612 (1972))).
Accordingly, the trial court did not err in denying the motion to dismiss.
Conclusion
The conviction is AFFIRMED.