Opinion
Court of Appeals No. A-12251 No. 6676
08-15-2018
ROBERT O'NEAL DAVIS III, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael Barber, Attorney at Law, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, 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. Trial Court No. 3AN-12-3725 CR MEMORANDUM OPINION Appeal from the Superior Court, Third Judicial District, Anchorage, Jack W. Smith, Judge. Appearances: Michael Barber, Attorney at Law, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
An Anchorage police officer stopped Robert O'Neal Davis III for speeding on the Glenn Highway. As the officer spoke with Davis, Davis gunned his Jeep and fled the scene. After crashing the Jeep, Davis was arrested for failure to stop, driving under the influence, and multiple counts of misconduct involving a controlled substance. Davis argues that the initial traffic stop was not supported by probable cause, and therefore his convictions should be reversed. For the reasons explained here, we reject this claim and affirm Davis's convictions.
13 Alaska Administrative Code 02.275(b) and 02.280 provide in relevant part "no person may drive a vehicle at a speed in excess of [the] ... limits" and that "[t]he maximum speed limit is effective when signs giving notice of the maximum limit are erected."
Former AS 28.35.182(a)(1), AS 28.35.030(a), AS 11.71.030(a)(1) (2010), AS 11.-71.030(a)(3)(A) (2010), and AS 11.71.060(a)(1) (2010), respectively.
Facts and proceedings
While observing traffic on the Glenn Highway, Anchorage Police Officer David Noll saw a Jeep that appeared to be traveling above the speed limit. Officer Noll used his hand-held laser speed detector to confirm that the Jeep was traveling eighty miles per hour in a sixty-five-mile-per-hour zone.
As Officer Noll pursued the Jeep, he took a second reading of the Jeep's speed with a different device, his patrol car's internal radar detector. This second sensor confirmed that the Jeep was traveling at eighty miles per hour. Based on the officer's observations and the two independent speed detector readings, the officer initiated a traffic stop of the Jeep.
When Officer Noll made contact with the driver, Davis, the officer observed signs that Davis was intoxicated and that he smelled of marijuana. Davis admitted that the Jeep was his, but he refused the officer's request to search the vehicle. Davis then sped away. The officer gave chase until Davis lost control and crashed into a snow berm, where he was arrested. A subsequent search of the Jeep yielded marijuana and cocaine.
Davis filed a motion to suppress the evidence seized as a result of this traffic stop, arguing that the stop was illegal because it was not supported by probable cause. At an evidentiary hearing, Officer Noll testified to the facts set forth above. Davis in turn presented two witnesses — his friend Isaac Murphy, and Brianna Carey, who knew Davis as a mechanic who had recently worked on her vehicle.
Carey testified that a few weeks earlier, Davis had loaned her his Jeep while her car was in the shop, and that the Jeep could not be driven above forty-five miles per hour or it would shake and then shut off. Murphy testified that on the night of the stop, he was following Davis in a separate car, and that they were both driving at or below the posted speed limit of sixty-five miles per hour.
Superior Court Judge Jack W. Smith denied Davis's motion to suppress. The judge found that the officer's testimony was more credible than that of Davis's two witnesses and that the traffic stop was supported by probable cause.
Following a jury trial, Davis was convicted of first-degree failure to stop at the direction of a police officer and driving under the influence. The jury hung on one drug charge and acquitted Davis of the other drug charges. This appeal followed.
Davis's traffic stop was supported by probable cause
Davis appeals the superior court's finding of probable cause for the traffic stop.
Whether probable cause for a traffic stop exists is a mixed question of fact and law. We view the evidence in the light most favorable to the superior court's ruling, overturning its factual findings only if they are clearly erroneous. Whether those facts establish probable cause is an issue subject to de novo review.
Chandler v. State, 830 P.2d 789, 792 (Alaska App. 1992).
State v. Wagar, 79 P.3d 644, 650 (Alaska 2003).
Chandler, 830 P.2d at 792.
Id.
Normally, an officer who directly observes a violation of the traffic code has probable cause for a traffic stop. Officer Noll testified that he directly observed Davis violate the traffic code by traveling above the posted speed limit and that two independent devices supported this observation. Two witnesses disputed that Davis was speeding, but the judge found their testimony to be less credible than the officer's testimony.
Nease v. State, 105 P.3d 1145, 1147 (Alaska App. 2005).
See Samples v. Anchorage, 163 P.3d 967, 967 (Alaska App. 2007) (upholding conviction for speeding under similar facts).
The primary responsibility for determining witness credibility rests with the trial court, since that court has the opportunity to hear the testimony and to observe the demeanor of the witnesses. Officer Noll testified to facts that, if believed, established probable cause for a traffic stop. The trial court determined that the officer's account of the incident was credible, and therefore, that the officer had probable cause to initiate a traffic stop.
Figueroa v. State, 689 P.2d 512, 513 (Alaska App. 1984). --------
Upon review of the record, we conclude that the trial court's findings were not clearly erroneous. And under the facts as determined by the trial court, the traffic stop was supported by probable cause.
Conclusion
The judgment of the superior court is AFFIRMED.