Opinion
Court of Appeals No. A-10048.
August 20, 2008.
Appeal from the District Court, Fourth Judicial District, Fairbanks, Raymond M. Funk, Judge, Trial Court No. 4FA-06-1935 CR.
Nelson Traverso, Law Office of Nelson Traverso, Fairbanks, for the Appellant. David A. Carlson, Assistant District Attorney, Fairbanks, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Cleophus P. Arrington Jr. was stopped by a state trooper for driving without any visible registration on his vehicle and for making an improper right turn. Ultimately, as a result of this stop, Arrington was convicted of driving while under the influence. He argues that the stop was not supported by probable cause because the trooper was not credible in asserting that he witnessed Arrington violate several traffic laws. We conclude that the trooper had probable cause for a traffic stop and affirm Arrington's conviction.
Facts and proceedings
On May 28, 2006, at about 2:00 a.m., Alaska State Trooper Scott Sands was driving northbound on University Avenue in Fairbanks when he observed that the vehicle directly in front of him had no license plate or temporary registration. Trooper Sands watched the vehicle make an improper right turn onto the Johannsen Expressway.
Trooper Sands stopped the vehicle and shined his spotlight on the back of the vehicle. He then saw that a temporary registration permit was displayed inside the rear window. Because the window had "very dark tint," Trooper Sands could not read the letters or dates on the temporary permit until he was out of his patrol car and standing within three or four feet of the vehicle.
After observing the temporary registration, Trooper Sands contacted the driver, Arrington. When he did so, he observed signs that Arrington was intoxicated. He eventually arrested Arrington for driving while under the influence. At the trooper station, Arrington submitted to a breath test which, at 2:28 a.m., showed a blood alcohol level of .213 percent. The State charged Arrington with driving while under the influence, a misdemeanor offense, and with making an improper turn, a violation of the traffic code.
AS 28.35.030(a) and 13 AAC 02.200(a), respectively.
Before trial, Arrington filed a motion to suppress the evidence of his intoxication, arguing that Trooper Sands did not have probable cause to stop him. After an evidentiary hearing, District Court Judge Raymond M. Funk denied the motion. Arrington entered a Cooksey plea to the charged offenses, reserving his right to challenge the denial of his motion to suppress. Why we conclude that Arrington's stop was legal
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Arrington argues that Trooper Sands had no probable cause to stop him. He claims that Trooper Sands's testimony that he could not see the temporary permit in the rear window and that he observed an improper turn was not credible.
Whether probable cause exists for a traffic stop is a mixed question of fact and law. "The district court, as the trier of fact, weighs the credibility of the evidence and the witnesses and resolves any conflicts and inconsistencies in that evidence." On appeal, we view the evidence in the light most favorable to the district court's ruling and overturn the court's factual findings only if they are clearly erroneous. W e independently decide whether these facts justify probable cause for the stop. Normally, a trooper who observes a traffic violation has probable cause for a stop.
Chandler v. State, 830 P.2d 789, 792 (Alaska App. 1992).
Hensel v. State, 604 P.2d 222, 235 (Alaska 1979).
State v. Wagar, 79 P.3d 644, 650 (Alaska 2003); Chandler, 830 P.2d at 792.
Chandler, 830 P.2d at 792; LeMense v. State, 754 P.2d 268, 272-73 (Alaska App. 1988).
Nease v. State, 105 P.3d 1145, 1147 (Alaska App. 2005); Williams v. State, 853 P.2d 537, 538 (Alaska App. 1993).
After an evidentiary hearing, Judge Funk found that Trooper Sands could not see the temporary registration permit displayed in Arrington's rear window. He also found that Trooper Sands observed Arrington make an improper right turn. Judge Funk held that each of these traffic violations gave Trooper Sands probable cause for the stop. He therefore denied the motion to suppress.
See AS 28.10.461 (registration must be displayed); AS 28.10.031 (allowing temporary registration); 13 AAC 02.200(a) (improper right turn).
Alaska Statute 28.10.461 provides that any motor vehicle that must be registered may not be driven on a public highway unless the registration is "attached to and displayed on the vehicle." Alaska Statute 28.10.031(a) states that once an application has been made to register a vehicle, "the vehicle may be driven pending the issuance of a certificate of registration by displaying a temporary permit issued by the department [of motor vehicles]." The statute does not specify that the temporary permit must be visible from a particular distance. But Trooper Sands testified that he saw no registration displayed on the vehicle until he stopped the vehicle and shined a spotlight on the back window. Because the window had "very dark tint," he could not read the letters or dates on the temporary permit, even with the aid of the spotlight, until he was out of his patrol car and standing within three or four feet of the vehicle. These facts support Judge Funk's conclusion that Trooper Sands had probable cause to believe Arrington w as violating state law by driving without any registration displayed.
See State v. Burke, 714 P.2d 374, 377 (Alaska App. 1986) (holding that AS 28.35.225 authorizes any law enforcement officer to stop a vehicle whose driver has committed a statewide traffic offense in the officer's presence).
When Trooper Sands saw the temporary permit in the rear window, he decided to let Arrington go with a verbal warning. But once Trooper Sands contacted Arrington and observed signs of intoxication, he was justified in expanding the scope of his investigation to determine if Arrington was driving while under the influence.
See Russell v. Anchorage, 706 P.2d 687, 689 (Alaska App. 1985).
Arrington argues that Judge Funk's finding that Trooper Sands could not see the temporary permit displayed in his rear window was clearly erroneous. He argues that there were inaccuracies in Trooper Sands's testimony that undermined his overall credibility. He notes that Trooper Sands first testified that it was dark out at the time of the stop but later said the sun was "starting to come up." He also notes that Trooper Sands testified, apparently erroneously, that state law requires temporary registration permits to be illuminated by a white light.
At trial, Joanne Olsen, office manager for the Fairbanks Department of Motor Vehicles, testified that the DMV requires that temporary registration permits be visible but not that they be illuminated.
Judge Funk could reasonably find that these inaccuracies or inconsistencies in Trooper Sands's testimony did not impeach his testimony in any significant way. As noted above, "[c]redibility choices and the weighing of evidence are within the province of the trier of fact." Trooper Sands testified that he stopped Arrington's vehicle because his temporary permit was not visible, not because it was not illuminated by a white light. This testimony w as corroborated by Arrington, w ho testified that Trooper Sands told him he stopped the vehicle because "he could not see my temporary permit."
Brown v. Anchorage, 680 P.2d 100, 104 (Alaska App. 1984) (citing Anthony v. State, 521 P.2d 486, 492 (Alaska 1974)).
Arrington also argues that Trooper Sands's testimony that he observed an improper right turn was not credible because Trooper Sands testified at trial that there were clearly marked lanes at the intersection where Arrington turned. Photographs that Arrington's wife took three or four days after the stop showed no marked lanes on the road Arrington turned onto, the Johannsen Expressway. Moreover, Arrington testified that he did not make an improper wide turn but rather was forced to "swing out" to avoid driving in the emergency lane.
Under 13 AAC 02.200(a), "both the approach for a right turn, and a right turn, must be made as close as practicable to the right-hand curb or edge of the roadway." Trooper Sands testified that Arrington turned from the far right-hand lane of University Avenue into the outside of the two eastbound lanes on Johannsen Expressway. Trooper Sands issued Arrington a citation for this violation.
Again, Judge Funk reasonably could have concluded that Trooper Sands's testimony that he saw Arrington make an improper right turn was credible even if, by the time of trial, Trooper Sands incorrectly remembered that the lanes at the intersection were clearly marked. In any event, the traffic stop was separately justified by the fact that Arrington's registration was not visible.
Conclusion
We AFFIRM Arrington's conviction.