Opinion
Court of Appeals No. A-11044 Trial Court No. 4FA-10-2594 CR No. 5999
12-11-2013
MICHAEL J. WEBB, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Callie Patton Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, 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.
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge.
Appearances: Callie Patton Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and E. Smith, Superior Court Judge.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge MANNHEIMER.
Michael J. Webb appeals his conviction for third-degree controlled substance misconduct; he argues that the evidence against him was obtained as a result of an illegal investigative stop. For the reasons explained here, we conclude that the investigative stop was lawful because the police officer who performed the stop had reasonable grounds to believe that Webb was violating the terms of his probation.
Underlying facts, and the superior court's ruling
At approximately 1:30 in the morning on June 18, 2010, Fairbanks Police Officer Dustin Stonecipher was performing a security check at the Arctic Bar. During this security check, Stonecipher saw Michael Webb, whom he recognized from several previous encounters. Stonecipher heard Webb say something like, "I'm on probation." From his previous encounters with Webb, Stonecipher recalled that Webb was on federal probation for weapons trafficking, and that Webb had previously been arrested for driving under the influence.
Based on these circumstances, Stonecipher decided to ask Webb if he was allowed to be in the bar — given the fact that probationers are commonly prohibited from drinking alcoholic beverages or being in a place where alcohol is served.
The bar was crowded, and music was playing. To get Webb's attention, Stonecipher placed his hand on Webb's shoulder. He then asked Webb to "come over here" — that is, to come speak with him in the arctic entry, where it would be easier to converse without so much noise from the music and the crowd.
When the officer spoke to him, Webb immediately placed his hands in his pockets. Stonecipher, fearing for his safety, told Webb to remove his hands from his pockets, and he again told Webb to come talk to him in the arctic entry — this time, with a more commanding tone. In response, Webb immediately ran toward the exit of the bar — knocking into people, chairs, and tables in the process. (One bar patron informed Stonecipher afterwards that Webb had knocked them to the ground, and that they wanted to press charges.)
Stonecipher pursued Webb out of the bar and into the parking lot. Webb ran up to a chainlink fence that divided the bar's parking lot from the adjacent highway. At this point, Webb took a bag out of his pocket and threw it over the fence. Stonecipher immediately arrested him. The bag was recovered, and it was found to contain packages of cocaine, as well as Oxycontin pills.
It turned out that Webb was not actually on probation at the time of this incident. Nevertheless, at the conclusion of the evidentiary hearing, the superior court found that Stonecipher's testimony about hearing Webb say that he was on probation was credible. Based on this, the superior court concluded that Stonecipher was entitled to contact Webb to clarify whether Webb was lawfully in the bar.
The superior court further concluded that Stonecipher's initial contact with Webb was a permissible, non-custodial police-citizen contact:
The Court: [W]hen you raise your voice in a crowded, noisy bar, that is not some kind of control technique. That's probably necessary just to get the person's attention, as well as placing a hand on their shoulder to get their attention, and say[ing], "Let's step over here; I want to ask you a couple questions." ... That's not a Terry stop. [Officer Stonecipher] is entitled to do that.
According to the superior court, the situation changed when "Mr. Webb put [his] hands in his pockets". At that point, Stonecipher "directed [Webb] to remove [his] hands for the officer's safety". The superior court concluded that Stonecipher's command was reasonable, given the fact that Stonecipher believed Webb was on probation and that the encounter was taking place in a crowded bar.
The court further found that, as soon as Stonecipher told Webb to take his hands out of his pockets, Webb bolted from the bar, knocking into people and furniture:
The Court: [It was a matter of] split seconds [between] "take your hands out" and [Webb's] bolting and running. And it is that bolting that is the really suspicious situation. And the officer was certainly entitled to follow up on that kind of suspicious activity.
The superior court concluded that Stonecipher's act of chasing Webb was a custodial stop — but that, by this point, it was lawful for Stonecipher to conduct an investigative stop.
Why we uphold the superior court's decision
On appeal, Webb argues that the superior court was wrong in concluding that no investigative stop took place until Webb ran from the bar and Stonecipher chased him. Instead, Webb contends, the investigative stop took place moments earlier, when Stonecipher directed Webb to take his hands out of his pockets and to come to the arctic entry to speak with Stonecipher.
Webb concedes that encounters and requests of this kind are not always investigative stops. The test is whether, given the circumstances, "a reasonable person would believe that he or she was free to go." But Webb argues that a reasonable person in his situation would not have felt free to go, or free to refuse to speak with the officer, in light of "Stonecipher's choice of words and his tone" — especially, the officer's ordering Webb to take his hands out of his pockets.
See, for instance, Cofey v. State, 216 P.3d 564, 566 (Alaska App. 2009), where this Court explained that "an officer does not conduct an investigative stop by merely approaching an individual on the street or in another public place, [and] by asking him if he is willing to answer some questions". (Quoting Waring v. State, 670 P.2d 357, 363 (Alaska 1983), which in turn was quoting Florida v. Royer, 460 U.S. 491, 497; 103 S.Ct. 1319, 1324; 75 L.Ed.2d 229, 236 (1983).)
Waring v. State, 670 P.2d 357, 364 (Alaska 1983).
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But as we have already explained, the superior court found that Stonecipher responded appropriately when Webb put his hands in his pockets — that the officer's act of directing Webb to remove his hands from his pockets was justified by a concern for officer safety, given the fact that Stonecipher reasonably believed that Webb was on probation, and given the fact that the encounter was taking place in a crowded bar. The superior court's ruling on this issue is supported by the record.
And within "split seconds" after the officer told Webb to remove his hands from his pockets, Webb was running from the bar, knocking into the people and furniture in his path. Webb does not challenge the superior court's conclusion that Stonecipher was justified in chasing after Webb.
For these reasons, we uphold the superior court's denial of Webb's suppression motion.
Conclusion
The judgement of the superior court is AFFIRMED.