Summary
In Geisler, two police officers approached the two occupants of a parked car because the officers suspected that the two were involved in a drug transaction.
Summary of this case from Dinnis v. StateOpinion
Court of Appeals No. A-11266 No. 6130
12-24-2014
JASON ARNOLD GEISLER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Cynthia Strout, Anchorage, for the Appellant. Diane L. Wendlandt, 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. Trial Court No. 3AN-09-14900 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Jack Smith, Judge. Appearances: Cynthia Strout, Anchorage, for the Appellant. Diane L. Wendlandt, 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 Hanley, District Court Judge. Judge HANLEY.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Police officers saw Jason Arnold Geisler sitting in a car in the vicinity of a drug arrest. The officers contacted Geisler and searched his car, discovering heroin. Based on this evidence, Geisler was charged with second-degree misconduct involving a controlled substance. Before Geisler's trial, he moved to suppress the evidence of the heroin, claiming the police illegally seized him. The superior court denied the motion, and a jury convicted Geisler.
AS 11.71.020(a)(1).
We conclude that the police seized Geisler without reasonable suspicion and that the superior court erred when it denied his motion to suppress the evidence. We therefore reverse Geisler's conviction.
Facts and proceedings
On December 31, 2009, Anchorage Police Officer Eric Smith was working undercover, riding in a car driven by a confidential informant. The informant had arranged to buy $200 worth of crack cocaine from a drug dealer. The dealer got into the car carrying a bag of crack cocaine and said that the bag cost $400. When the informant said he only had $200, the dealer separated out $200 worth of cocaine and sold it to the informant. The informant then dropped the dealer off in a parking lot, at her request. The dealer got out of the car and disappeared around the side of a nearby apartment building.
Officer Smith gave nearby officers the signal to arrest the dealer, but the officers were unable to locate her. Smith then directed the informant to call the dealer to ask her for more drugs. The dealer told the informant she was just "walking out the door." When she re-appeared, the officers arrested her.
Smith suspected that the person who supplied the dealer's drugs was nearby, so he retraced the dealer's path. He saw two vehicles near the apartment building; the second vehicle was parked behind the first, blocking it in. Smith encountered a woman walking toward the second vehicle. The woman indicated she had come from apartment 2, but she was evasive about what she was doing there. She said she had driven to the apartment with one of the occupants of the first vehicle and was moving her car so they could leave. Another officer detected the odor of marijuana coming from inside the woman's car, and she admitted she had smoked marijuana and had a pipe in the car.
Meanwhile, Officer Shaun Henry approached the first car and asked the two occupants for identification. Based on the information they provided, Officer Smith left to conduct a records check on the two occupants: Jason Geisler (who was in the driver's seat) and a female passenger.
While Officer Smith was gone, Officer Henry stood by the car and observed the two occupants. He used a small flashlight to illuminate the interior of the car and observed that they were "fidgety" and kept moving their hands under their legs and around the seat area. He repeatedly told them to stop moving their hands and to place them on top of their legs so he could see them. They did not comply; Geisler picked up an orange juice container, drank from it, and put it back onto the floor of the car. Again, the officer told Geisler and the passenger to stop moving and to keep their hands on their laps.
Another officer, who had learned that a search was going to be conducted, asked Geisler to step out of the car. Geisler complied, and the officer patted him down for weapons. Officer Henry had the passenger step out of the car, and as she did, the officer saw a plastic baggie, similar to those commonly used to package illegal drugs, sticking out of her waistband. The police then searched the car and found a baggie of heroin on the driver's seat.
The State charged Geisler with second-degree misconduct involving a controlled substance for possessing heroin with the intent to deliver it. Geisler filed a motion to suppress the evidence, asserting that the officers had illegally seized him. After an evidentiary hearing, Superior Court Judge Jack Smith denied the motion. The judge ruled that the officers' encounter with Geisler did not amount to a seizure and, even if it did, the officers' actions were supported by reasonable suspicion.
A jury convicted Geisler. On appeal, he claims the superior court erroneously denied his motion to suppress the evidence.
Why we conclude that Geisler was illegally seized and the superior court erred in denying his motion to suppress the evidence
Geisler contends that the police seized him without reasonable suspicion and the superior court erred when it ruled that the officers' contact with him was a legal investigatory stop.
In determining whether the police violated the constitution when they contacted a citizen, we first consider whether the encounter amounted to a "seizure" that triggered constitutional protections. If a seizure did occur, we then determine whether the seizure was justified by reasonable suspicion. "Whether reasonable suspicion exists is a mixed question of fact and law." We will overturn the trial court's factual findings only if they are clearly erroneous. But we review de novo the question of whether the circumstances leading up to an investigative stop amounted to reasonable suspicion.
Majaev v. State, 223 P.3d 629, 632 (Alaska 2010).
State v. Garcia, 752 P.2d 478, 480 (Alaska App. 1988).
Id. (citation omitted).
Hayes v. State, 785 P.2d 33, 36 (Alaska App. 1990) (citing LeMense v. State, 754 P.2d 268, 272-73 (Alaska App. 1988)).
The police conduct amounted to a seizure
A seizure exists when a police officer "by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Because Geisler was seized without the use of physical force, the question before us is whether the officers engaged in a "show of authority" that made the encounter a seizure.
Romo v. Anchorage, 697 P.2d 1065, 1068 (Alaska App. 1985) (internal quotation marks omitted) (quoting Waring v. State, 670 P.2d 357, 363 (Alaska 1983)).
For these purposes, Alaska law defines a "show of authority" as a "circumstance under which a reasonable person, in view of the objective facts surrounding the incident, would believe that he is not free to leave." A person may be subjected to a seizure even if the police do not exert "overt control." In determining whether a person has been seized under this standard, we consider the totality of the circumstances.
Id.
Ozhuwan v. State, 786 P.2d 918, 920 (Alaska App. 1990).
Id. (citations omitted).
The State cites Barrows v. State to support its assertion that the police did not seize Geisler. In Barrows, an officer stopped his patrol car approximately twenty feet from a van that was parked on the side of the road. The officer did not activate his overhead lights and walked up to the van to determine why it was parked there. The officer asked Barrows and his female companion "how they were doing" and, after determining they were not in any danger, asked Barrows "if he'd mind" showing identification. Barrows told the officer that he did not have identification with him, but he gave the officer his name. The officer ran a computer check, learned that Barrows' driver's license was revoked, and warned Barrows not to drive. Shortly thereafter, the officer saw Barrows driving the van, stopped him, and issued him a citation for driving while his license was revoked.
814 P.2d 1376 (Alaska App. 1991).
Id. at 1377.
Id. at 1377, 1379.
Id. (alterations omitted).
Id.
Id. at 1378.
Barrows claimed that the officer conducted an illegal investigatory stop when he approached the van and asked to see identification. This Court disagreed and ruled that Barrows had not been seized because the officer asked him and his companion questions in a conversational manner, did not make threatening gestures or remarks, and asked Barrows for identification without any threat of retaliation if he refused. Under these circumstances, we concluded that a reasonable person in Barrows' position "would have felt free to refuse to comply with this request."
Id. at 1378-80.
Id. at 1379.
In contrast, after Officer Henry asked Geisler and his passenger for identification, at least one officer, and at times two officers, stood directly next to Geisler's car in an authoritative manner. Officer Henry testified that he was attempting to control Geisler and his passenger and that he repeatedly told them to stop moving their hands and to keep their hands on their legs. After Geisler picked up an orange juice container and drank from it, Henry again told Geisler and his passenger to stop moving around and to keep their hands on their laps. Officer Henry estimated that this interaction lasted for approximately three to five minutes.
After reviewing the totality of the circumstances, we conclude that a reasonable person in Geisler's position would view the positioning of the officers and the repeated commands to stop moving as a show of authority and that a reasonable person would not have felt free to walk away. Instead, a reasonable person would interpret the presence and location of the officers and Officer Henry's orders to stop moving as just that — a command to not move, including to not get out of the car. Thus, the officers' conduct constituted a seizure of Geisler.
The seizure was not supported by reasonable suspicion
Given our conclusion that the officers seized Geisler, we must determine whether the police had sufficient grounds to justify the seizure. To seize a person as part of an investigative stop, the police must have "articulable facts creating a reasonable suspicion that imminent public danger existed or that serious harm to persons or property had recently occurred." "A reasonable suspicion is one that has some factual foundation in the totality of the circumstances observed by the officer in light of the officer's knowledge." The "requirement of reasonable suspicion is not a requirement of absolute certainty," but it does require more than an "inchoate and unparticularized suspicion or hunch." An officer must be able to "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [an] intrusion."
Ozhuwan v. State, 786 P.2d 918, 921 (Alaska App. 1990) (citing Coleman v. State, 553 P.2d 40, 46 (Alaska 1976)).
Id. (citing United States v. Sokolow, 490 U.S. 1, 7-8 (1989)).
Shamberg v. State, 762 P.2d 488, 492 (Alaska App. 1988) (internal quotation marks omitted) (quoting New Jersey v. T.L.O., 469 U.S. 325, 346 (1985)).
Waring v. State, 670 P.2d 357, 365 (Alaska 1983) (internal quotation marks omitted) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)).
At the conclusion of the evidentiary hearing, the superior court ruled that the police had reasonable suspicion based on the following facts: the police suspected that the dealer and the woman driving the second vehicle had come from the same nearby apartment, the woman was evasive about being in the apartment, the woman's car smelled like marijuana, and she admitted to recently smoking marijuana. The court also found that Geisler's passenger had arrived with the woman but was leaving with someone else, and that the woman was moving her car to allow Geisler and the passenger to leave.
In support of the trial court's rulings, the State asserts that the officers had reasonable suspicion to believe the dealer was "probably acting as a middleman for a [drug] supplier"; that the source of her drugs "had to be near the location of the sale and arrest"; and that the officers were justified in attempting to locate the source. As explained below, however, the record demonstrates that the officers' beliefs were based on speculation rather than specific, articulable facts.
The officers' belief that the dealer had a supply source in the area was speculative. After the first purchase, Officer Smith knew that the dealer still had approximately half the cocaine in her possession, and he instructed the informant to tell the dealer that they were getting more money for "the other dope that [the dealer] had." The State presented no evidence that when the dealer returned for the second drug sale she brought with her anything other than the cocaine that Smith had previously seen.
Even if the dealer had a drug supplier in the vicinity, the officers knew only that the dealer had disappeared near an apartment building and then re-appeared near the same location. While the woman in the parking lot indicated she had been in apartment 2, the officers did not know where the dealer went after she left their sight. The dealer told the informant that she was "walking out the door," but it is unknown if the door she referred to was the door to apartment 2 or even a door in the same apartment building.
The State makes the related argument that, even if the dealer's supplier was not present, the officers reasonably believed she had "compatriots [who] were likely very near by" who would attempt to leave the area after learning of her arrest. The State contends that this belief provided the officers with reasonable suspicion to briefly detain the woman in the parking lot, Geisler, and Geisler's passenger to determine whether any of them were involved in the drug dealing committed by the dealer.
As explained above, however, the facts do not demonstrate that the dealer was working in concert with anyone when she initially sold cocaine to the informant or when she returned for a second sale. The dealer was alone when she got in the car with Smith and the informant, and she entered the vehicle at a location removed from the apartment building. She sold the informant half the cocaine from the baggie, and the informant then drove the dealer to the parking lot of the apartment building. While it is obvious that the dealer somehow obtained the cocaine before Smith and the informant picked her up, it was speculation for the officers to think (1) that the dealer got more cocaine from apartment 2, and (2) that Geisler was somehow associated with the dealer.
Further, the State's reasoning — that police could stop Geisler because the dealer's supplier or compatriots were "likely very near by" — would justify stopping any person found in the vicinity of a drug transaction. This result would be contrary to the requirement that when the police seize a person, that particular seizure must be supported by reasonable suspicion.
The facts of this case did not provide the police with reasonable suspicion to believe Geisler's activities created an imminent public danger or caused serious harm to persons or property. Therefore, the police were not justified in seizing Geisler and searching the vehicle he was in.
Ozhuwan, 786 P.2d at 921 (citations omitted).
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Conclusion
Because the officers seized Geisler without reasonable suspicion, the superior court erred when it denied Geisler's motion to suppress the evidence. We REVERSE the judgment of the superior court.