Opinion
Court of Appeals No. A-8822.
July 12, 2006.
Appeal from the District Court, Third Judicial District, Kodiak, Joel H. Bolger, Judge. Trial Court No. 3KO-03-417 CR.
Suzanne Rapoza, Assistant Public Defender, Kodiak, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Joseph S. Slusser, Assistant District Attorney, J. Michael Gray, District Attorney, Kodiak, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Shortly before midnight on July 3, 2003, a state trooper stopped sixteen-year-old Jeremiah O. Cousins and his two companions after the trooper observed one of the three throw a firework into a lane of traffic in Kodiak. The trooper warned the three youths not to throw fireworks in the city or in traffic. He was about to let them go when a city police officer arrived. That officer obtained identification from the youths, and the trooper ran their names through the state law enforcement database to check for outstanding warrants. There were no warrants. The officer then told one of Cousins's companions, Thomas Brent, who was also underage, that he smelled alcohol on his breath. Ultimately, Brent and Cousins admitted to drinking and submitted to portable breath tests. They were both cited for minor consuming alcohol.
AS 04.16.050.
Cousins moved to suppress his statement that he had been drinking, arguing that the stop was illegal. The district court denied the motion. For the reasons discussed below, we conclude that Cousins's stop was illegal. We therefore reverse his conviction.
Stipulated facts and proceedings
On July 3, 2003, at about 11:50 p.m., Alaska State Trooper Dennis Dupras observed three youths walking along the sidewalk in Kodiak. He saw one of them throw a firecracker into a lane of traffic. Trooper Dupras knew this conduct violated a Kodiak ordinance prohibiting the use of fireworks without the permission of the fire chief. That offense is an infraction punishable by a fine of not more than $300.
Kodiak City Code (KCC) 8.32.110 ("It is unlawful for any person to sell, use, or explode any fireworks . . . without permission of the fire chief.").
KCC 1.12.010 ("Unless otherwise specifically provided, any person violating any provisions or failing to comply with any of the mandatory requirements of the city ordinances is guilty of an infraction, which is punishable by a fine of not more than three hundred dollars. . . .).
Trooper Dupras activated his flashing lights and stopped the three youths. He warned them to light their fireworks outside the city limits and away from traffic. Trooper Dupras normally did not enforce violations of the city fireworks ordinance, and he did not intend to issue a citation in this case. He did not believe the conduct he observed amounted to reckless endangerment or any other criminal offense. He also saw no signs that the youths were intoxicated.
However, within five minutes of this stop, Kodiak Police Officer Frank Peterson Jr., who had heard Trooper Dupras radio this incident to dispatch, arrived on the scene. Trooper Dupras told Officer Peterson what had transpired. Officer Peterson asked the three youths to identify themselves, which they did, and two of the youths (the record is silent as to which two) provided a driver's license or identification card. Officer Peterson took the cards, and Trooper Dupras ran the names through the state's law enforcement computer database (APSIN). After establishing that there were no outstanding warrants and that two of the three youths (Cousins and Brent) were underage, Officer Peterson told Brent he smelled alcohol on his breath. Brent admitted he had consumed a "couple of beers" and submitted to a portable breath test. Officer Peterson then asked Cousins how much alcohol he had consumed. Cousins said he had just been "sipping from the other guy[s'] beers." (Cousins also submitted to a portable breath test, but the results of that test were suppressed.) The officers then searched the backpack of the third youth, who was twenty-one years old, and found unopened beers. Brent and Cousins were cited for minor consuming alcohol. All three youths were allowed to leave after this contact, which lasted fifteen to thirty minutes.
Cousins moved to suppress his admission that he had been drinking, challenging the legality of this stop. He argued that his stop was not supported by reasonable suspicion and that, even if it was, the detention exceeded its constitutionally permissible scope. He also argued that he was subjected to custodial interrogation without the benefit of Miranda warnings.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
District Court Judge Joel H. Bolger denied Cousins's motion. He concluded that Trooper Dupras had probable cause to believe that "one of the three kids" had violated the Kodiak code. He also concluded that the stop in its entirety was brief and reasonable and that Cousins was not in custody when he made the self-incriminatory statement that he had been drinking beer.
Following this ruling, Cousins entered a no contest plea to the charge of repeat minor consuming alcohol, reserving his right to appeal the denial of his motion to suppress. Why we conclude based on the stipulated record that the stop was illegal
AS 04.16.050(c).
Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
The roadside stop in this case, for violation of the city fireworks ordinance, is analogous to a routine traffic stop. In evaluating the reasonableness of a routine traffic stop, courts apply the dual inquiry outlined by the United States Supreme Court in Terry v. Ohio: "whether the officer's action [was] justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference."
See State v. Chapman, 921 P.2d 446, 452 (Utah 1996).
Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317 (1984) (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)) (holding that roadside questioning during a routine traffic stop does not amount to custodial interrogation and is more analogous to a Terry stop); State v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004) (applying general rule that reasonableness of a traffic stop is judged by reference to Terry's dual inquiry). See generally 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.3(b) (4th ed. 2004).
Brown v. State, 684 P.2d 874, 879 (Alaska App. 1984) (citing Terry, 392 U.S. at 17-19, 88 S. Ct. at 1877-78).
We have no doubt that Trooper Dupras was justified in stopping the youths after he observed one of them throw a firework into a lane of traffic. But even if an initial stop is lawful, the way the stop is executed may unreasonably infringe upon interests protected by the constitution. In Howard v. State, we discussed some of the factors Alaska courts must consider in determining if an investigatory stop exceeds its allowable scope:
Illinois v. Caballes, 543 U.S. 405, 407, 125 S. Ct. 834, 837, 160 L. Ed. 2d 842 (2005).
664 P.2d 603 (Alaska App. 1983).
First, the court must consider the purpose for the stop and, specifically, the kind of criminal activity being investigated. . . . Second, the stop must be for a limited and specific inquiry, i.e., the police must be diligently pursuing a means of investigation which is soon likely to resolve the matter one way or another. Once the inquiry is completed the person detained must be freed or arrested. Third, the stop must be of brief duration; the exact length will depend in part upon what is learned by the police relating to their initial suspicions. As one court pointed out:
The results of the initial stop may arouse further suspicion or may dispel the questions in the officer's mind. If the latter is the case, the stop may go no further and the detained individual must be free to go. If, on the contrary, the officer's suspicions are confirmed or are further aroused, the stop may be prolonged and the scope enlarged as required by the circumstances.
Id. at 609-10 (citing State v. Watson, 345 A.2d 532, 537 (Conn. 1973)). In Howard, we discussed several additional factors, but they are not relevant to this appeal.
Thus, once the normal process that motivated the stop is completed — for instance, in the case of a routine traffic stop, once the officer hands the motorist a warning ticket or citation and returns his driver's license and registration, or otherwise demonstrates that the purpose of the stop has been effectuated — the stop may go no further unless (1) the officer has reasonable suspicion that some other criminal activity is afoot, or (2) the initial detention has become a consensual encounter.
See, e.g., People v. McGaughran, 601 P.2d 207, 209, 213-14 (Cal. 1979).
See Russell v. Anchorage, 706 P.2d 687, 689 (Alaska App. 1985).
See Ohio v. Robinette, 519 U.S. 33, 36-40, 117 S. Ct. 417, 419-21, 136 L. Ed. 2d 347 (1996); Byndloss v. State, 873 A.2d 1233, 1243 (Md.App. 2005).
In this case, the parties do not dispute that Cousins was detained when Trooper Dupras activated the flashing lights on his patrol car, signaled for the three youths to stop, and warned them not to light firecrackers within the city limits. This initial stop lasted no more than five minutes. According to the stipulated facts, Trooper Dupras did not intend to issue a citation and was about to let the three leave when Officer Peterson showed up. The youths were then held for another ten to twenty minutes while the officers obtained identification and checked for outstanding warrants.
There is nothing in the record to suggest that the warrant checks were related to the initial purpose of the stop (a violation of the Kodiak fireworks ordinance). No citation was issued for the fireworks infraction. Nor is there evidence that Officer Peterson questioned the three youths about the fireworks incident. Moreover, it is hard to imagine a situation in which running a warrant check would further the investigation of a fireworks infraction personally witnessed by a state trooper. For these reasons, we conclude, based on the stipulated record before us, that the purpose of the initial stop was accomplished when Trooper Dupras issued his verbal warning and prepared to let the youths go.
The encounter changed when Officer Peterson arrived on the scene and the officers obtained identification and ran warrant checks on the youths. It is not clear exactly how long the warrant checks took; ten to twenty-five minutes elapsed between the time Officer Peterson arrived and Cousins was cited and permitted to leave. Officer Peterson apparently retained the driver's license or identification card of two of the three youths (the stipulated facts do not specify whether Cousins's identification was among those retained). As soon as the warrant checks were completed, Officer Peterson told Brent he smelled alcohol on his breath. After Brent admitted to drinking alcohol, Officer Peterson administered a portable breath test on him. Officer Peterson then asked Cousins how much he had consumed, and, after Cousins confessed to "sipping" beer, administered a portable breath test on him. The officers then searched the backpack of the one adult and discovered unopened beers.
See Caballes, 543 U.S. at 407, 125 S. Ct. at 837 ("A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.").
It is improbable, considering this encounter as a whole, that a reasonable person in Cousin's position would have felt free to leave while the results of the warrant check were pending or during the inquiry about criminal conduct that immediately followed. Furthermore, this second detention was unlawful because it was not supported by any suspicion of criminal activity. "Although it is crucial for law enforcement officials to continue an investigation when suspicious facts warrant it, they cannot embark upon an investigatory course of action `in the hope that something might turn up.'" It may be that Officer Peterson ran the warrant checks because he had good reason to believe the youths were underage and had been drinking. But there is nothing in the stipulated facts to support that conclusion. Trooper Dupras saw no signs of drinking. Although Officer Peterson told Brent he smelled alcohol on his breath, this statement was made after the warrant checks were completed. And from the meager record it appears that the officers had no basis for suspecting — before or after the warrant checks — that Cousins had been drinking, apart from his association with Brent and his eventual confession. While association with someone suspected of a crime may be one factor in evaluating the legality of a stop, it is not sufficient alone to justify a seizure.
See, e.g., State v. Hall, 115 P.3d 908, 917 (Or. 2005).
See United States v. Luckett, 484 F.2d 89, 90-91 (9th Cir. 1973) (after defendant was cited for jaywalking, continued detention to run a warrant check was unlawful in the absence of reasonable suspicion of criminal activity).
Waring v. State, 670 P.2d 357, 366 (Alaska 1983) (quoting Brown v. Illinois, 422 U.S. 590, 605, 95 S. Ct. 2254, 2262, 45 L. Ed. 2d 416 (1975)).
See Ybarra v. Illinois, 444 U.S. 85, 91-93, 100 S. Ct. 338, 342-43, 62 L. Ed. 2d 238 (1979) ("[A] person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search" or reasonable suspicion to frisk for weapons); State v. Morris, 72 P.3d 570, 580 (Kan. 2003) ("A person's mere propinquity to others independently suspected of criminal activity does not, without more, authorize a Terry stop unless the officer has reasonable suspicion directed specifically at that person."). Compare United States v. Silva, 957 F.2d 157, 161 (5th Cir. 1992) ("a suspect's companionship with or propinquity to an individual independently suspected of criminal activity is a factor to be considered in assessing the reasonableness of a seizure"); United States v. Bell, 762 F.2d 495, 499-500 (6th Cir. 1985) (although the fact of companionship with a person suspected of criminal activity does not of itself justify a search, it is relevant to the mix that should be considered in determining if the search was justified).
Although there was nothing particularly coercive or threatening about this stop, it was the type of suspicionless detention that the Fourth Amendment and the exclusionary rule were designed to prevent. After the purposes of the initial stop were accomplished, the officers detained Cousins for another ten to twenty minutes without any suspicion of criminal activity. We have previously condemned this type of "expedition for evidence." Because Cousins's admission that he had been drinking was the product of this unlawful stop, the district court erred in denying his motion to suppress. Conclusion
See G.R. v. State, 638 P.2d 191, 201 (Alaska App. 1981), remanded on other grounds in Waring, 670 P.2d 357 (quoting Dunaway v. New York, 442 U.S. 200, 218, 99 S.Ct. 2248, 2259, 60 L.Ed.2d 824 (1979) and Brown, 422 U.S. at 605, 95 S.Ct. at 2262).
Having reversed Cousins's conviction on the ground that his stop was illegal, we need not address his separate claim that his Miranda rights were violated.
We REVERSE Cousins's conviction.