Opinion
Court of Appeals No. A-11008 Trial Court No. 1JU-10-923 CR No. 5993
11-27-2013
CHARLES M. BROUILLETTE, Appellant, v. STATE OF ALASKA, Appellee.
Linda R. Beecher, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, 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, First Judicial District, Juneau, Philip M. Pallenberg, Judge.
Appearances: Linda R. Beecher, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, 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 Coats, Senior Judge.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Judge MANNHEIMER.
This case raises the question of whether the defendant was subjected to an unlawful investigative stop.
One evening around 9:30, a Juneau police officer observed Charles M. Brouillette in a downtown parking area reserved for heavy equipment vehicles. Brouillette was dressed all in black, and he was standing on the step of a dump truck, holding the door handle, as if he were about to open the driver's door.
When Brouillette saw the police officer, he quickly got down from the step and ran behind another heavy equipment vehicle. From his position behind this vehicle, Brouillette peered back at the officer, apparently to see what he was doing.
The officer contacted his dispatcher to report what was going on, and then he got out of his patrol car and started walking toward the vehicle where Brouillette was hiding. The officer identified himself and called out for Brouillette to stop, but Brouillette ran toward some nearby woods.
In order to escape, Brouillette had to climb over a fence. While Brouillette was attempting to surmount this fence, the officer caught him. A subsequent search of Brouillette's person revealed that he was carrying a handgun. Because Brouillette was a felon, his possession of this handgun constituted the crime of third-degree weapons misconduct, AS 11.61.200(a)(1).
Following his indictment for this crime, Brouillette filed a motion asking the superior court to suppress the handgun and dismiss the indictment. Brouillette argued that the officer lacked reasonable suspicion to stop and detain him, and thus the discovery of the handgun was the fruit of an unlawful investigative stop.
Based on the testimony presented at an evidentiary hearing, the superior court concluded that the officer's actions were supported by a reasonable suspicion that Brouillette was getting ready to rifle the dump truck. The court therefore denied Brouillette's suppression motion.
For purposes of assessing the legality of this investigative stop, we will assume that the stop occurred when the police officer identified himself and told Brouillette to stop.
In his brief to this Court, Brouillette argues that there is evidence to support the conclusion that, at the time the officer issued this verbal command, he (Brouillette) was still crouched behind the heavy equipment vehicle and had not yet begun to run away. Brouillette argues that if the officer issued the verbal command before Brouillette starting running, then the superior court was wrong to have considered Brouillette's act of flight as one of the factors supporting a finding of reasonable suspicion for the investigative stop.
We recognize that the evidence on this point was conflicting. The officer himself conceded that he was not sure whether he told Brouillette to stop when Brouillette started to run away, or whether he told Brouillette to stop — i.e., stay put — and then Brouillette started to run away. The officer testified that these two events (his verbal command and Brouillette's act of flight) occurred essentially simultaneously, within a half-second of each other.
Brouillette notes that when the superior court denied his suppression motion, the court did not make a specific finding regarding the sequence of these two events. Because of this, Brouillette argues that we should view the evidence in the light most favorable to him.
As a legal matter, this argument is incorrect. If, as Brouillette suggests, the sequence of events was crucial to the legality of the investigative stop, we would vacate the superior court's decision and direct the superior court to make additional findings of fact. But we conclude that this factual issue is moot. Even if this dispute were resolved in Brouillette's favor, the investigative stop would still be supported by a reasonable suspicion that the officer had just interrupted a theft in progress.
Brouillette argues (in the alternative) that even if the facts support a reasonable suspicion that he was interrupted in the act of theft, this crime was not serious enough to satisfy the test set forth in Coleman v. State, 553 P.2d 40 (Alaska 1976).
In Coleman, the Alaska Supreme Court confined investigative stops to situations where the police have a reasonable suspicion that the person being stopped is committing, or has just committed, a crime involving imminent public danger or recent serious harm to persons or property. Id. at 43. Brouillette argues that theft of property from a vehicle is not a sufficient public danger to satisfy the Coleman test.
We disagree. In State v. G.B., 769 P.2d 452 (Alaska App. 1989), we upheld an investigative stop that was conducted based on the officer's reasonable suspicion that the suspect had just committed a minor theft at a video store a few minutes earlier. The defendant in G.B. argued that, under the Coleman test, this kind of minor theft would not support an investigative stop. But this Court concluded that Coleman's requirement of recent serious harm to persons or property is satisfied when a police officer responds to a report of a just-committed theft — even a seemingly minor theft — and soon thereafter conducts an investigative stop in the immediate vicinity of the crime. G.B., 769 P.2d at 456-57.
G.B., 769 P.2d at 453.
Id. at 454.
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Our decision in G.B. governs Brouillette's case. We therefore conclude that the stop in this case satisfies Coleman.
The judgement of the superior court is AFFIRMED.