Opinion
Court of Appeals No. A-9329.
February 6, 2008.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Niesje J. Steinkruger, Judge, Trial Court No. 4FA-04-3911 Cr.
Marcia E. Holland, Missoula, Montana, under contract with the Public Defender Agency, and Quinlan G. Steiner, Public Defender, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
This appeal presents the question of whether an investigative stop occurred when two airport police officers approached Samuel R. Horner and his companions on the tarmac of the Fairbanks International Airport, asked them for identification, and inquired about their activities on the tarmac. For the reasons explained here, we conclude that the officers' interaction with Horner and his companions was not so intrusive as to constitute an investigative stop. We therefore affirm Horner's conviction.
Underlying facts
The following facts are taken from our previous decision in this case, Horner v. State, Alaska App. Memorandum Opinion No. 5184 (March 7, 2007), 2007 WL 706631. However, the transcription of the conversation between the airport police officers and Horner that was quoted in our previous decision has now been corrected to conform to the audio recording that was filed with the trial court.
On November 7, 2004, the Alaska State Troopers received an anonymous tip that three unidentified people had booked a flight to the village of Shugnak that afternoon through Ken's Air Service in Fairbanks, and that they would be transporting alcoholic beverages to Shugnak on this flight. The troopers passed this tip along to the State Airport Police at the Fairbanks airport.
Acting on this tip, Airport Police Officer Nicholas Zito contacted the ow ner of Ken's Air Service and learned that three people were scheduled to take a flight to Shugnak that afternoon, and that the flight would be leaving between 12:30 and 1:30 p.m. . The owner of Ken's Air Service said that he would contact the airport police if the three people actually showed up for the flight.
At approximately 12:45 p.m., the owner of Ken's Air Service called the airport police and notified them that the three people had shown up for the chartered flight to Shugnak. Officer Zito and Officer Craig Persson drove in separate cars to the east ramp of the Fairbanks airport, where Ken's Air Service was located. While the two officers were en route, the dispatcher in the airport tower informed them that three people were walking back and forth between the plane and a truck parked next to the plane, although the dispatcher apparently could not see what (if anything) these people were carrying to the plane. Zito and Persson parked their patrol vehicles about 100 to 200 feet away from the plane, and they approached the three people on foot. The officers were in uniform, but they did not activate the overhead lights on their patrol cars or make any other visible show of authority.
As the officers approached the three individuals, they observed several unmarked packing boxes sitting next to the plane. Zito walked up to the three people and engaged Horner in the following conversation:
Zito: Hey, guys, how's it going? How's it going?
Horner: (indiscernible)
Zito: Okay, I just need to talk to you guys real quick. Everybody got ID? Everybody have ID? Identification? Identification?
Horner: Yeah. We were just waiting for a friend to pick us up.
Zito: Okay. [To Horner's female companion:] I need, I need your ID too, ma'am. [To all three:] These are boxes that you guys are dropping off?
Horner: Oh, no. We're waiting for a friend to pick us up.
Zito: You guys were just bringing boxes over to the plane.
Horner: No.
Zito: Yeah, you were. Our tower was just watching you. Why . . .
Horner: No.
Zito: Okay, I want you to be straight up with me right now, okay? Right now, I know you just brought those boxes over — because our tower was watching you guys. So are you going to be straight up with me, or are we going to start out by not being truthful?
Horner: The pilot can tell us where he's going, so . . .
Zito: We already know where you three are going. Now from here on out, if you want to help yourself, you need to be honest with us. That sound fair enough?
Horner: Okay.
Zito: I'm Nick, and this is Craig. We're officers with the State Airport Police out of Fairbanks. What's your name, sir?
Horner: Sam.
Zito: Sam, [do] you know why we're here?
Horner: Uh-huh [affirmative].
Zito: Okay. What's going on today?
Horner: Uh, just importing.
Zito: Trying to import? Okay, what are you importing?
Horner: Alcohol.
Zito: Alcohol?
Horner: Yeah. . . .
Zito: Do you realize it's illegal to import alcohol [into Shugnak]? Obviously, . . .
Horner: Yep.
Zito: How much alcohol are you importing? About three cases' worth?
Horner: More than that. . . . [We have] R R . . . and a little bit of Bacardi.
Zito: Okay. How much [are] you selling it for, out there?
Horner: One [hundred] fifty [dollars] for R R. . . .
Zito: You can actually — well, I'm going to probably let you end up taking this plane home [ i.e., home to Shugnak] today. Do you give consent for us to search your boxes?
Horner: Yeah, you can (indiscernible).
After Horner gave his consent, Zito searched the boxes that were located next to the plane. In these boxes, Zito found seventy-six 750-ml bottles of R R whiskey, as well as two 750-ml bottles of Bacardi rum. Zito then contacted the district attorney's office. Following his consultation with the district attorney, Zito arrested Horner.
After Horner was indicted for importing alcoholic beverages into a local option community, he asked the superior court to suppress the evidence against him. Horner argued that the airport police unlawfully subjected him to an investigative stop when they had no reasonable suspicion of criminal activity.
AS 04.11.499.
The superior court denied this suppression motion. Following the superior court's ruling, Horner entered a Cooksey plea of no contest, reserving his right to litigate the suppression issue on appeal. The legal issue presented in this appeal
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974) (allowing a criminal defendant to plead no contest and still preserve a dispositive issue for appeal).
Although the State originally argued that the airport police had the necessary reasonable suspicion of criminal activity to justify an investigative stop, the State now concedes that the airport police had no reasonable suspicion of criminal activity. The State argues that the police did not need reasonable suspicion, because their contact with Horner did not constitute an investigative stop. Consequently, Horner's case now turns on the issue of whether Zito's approach to Horner constituted an investigative stop or merely a "police-citizen contact".
Alaska law draws a distinction between investigative stops (which constitute "seizures" for constitutional purposes) and police-citizen contacts in which the police merely seek information without engaging in a show of authority. Before the police can subject a person to an investigative stop, they must have reasonable suspicion of criminal activity that is currently posing an imminent danger to the public, or that involved recent serious harm to persons or property. Coleman v. State, 553 P.2d 40, 46 (Alaska 1976). In contrast, the police can engage in a "citizen contact" without special justification. Waring v. State, 670 P.2d 357, 363-64 (Alaska 1983); Florida v. Bostick, 501 U.S. 429, 434-35; 111 S.Ct. 2382, 2386; 115 L.Ed.2d 389 (1991) (noting that, even without particularized suspicion of criminal activity, police officers may ask a person questions and ask to see their identification, so long as they do not convey the message that the person is bound to comply with the request).
Reichel v. State, 101 P.3d 197, 199 (Alaska App. 2004); Howard v. State, 664 P.2d 603, 608 (Alaska App. 1983).
Whether an encounter between a police officer and a citizen constitutes an "investigative stop" or merely a "contact" will, of course, hinge on the facts of the case. But the ultimate question is a legal one: whether, under the totality of the circumstances, the officer's conduct would lead a reasonable innocent person to believe that they were not free to leave.
Reichel, 101 P.3d at 199; Martin v. State, 797 P.2d 1209, 1214 (Alaska App. 1990).
Waring, 670 P.2d at 364; Ozhuwan v. State, 786 P.2d 918, 920 (Alaska App. 1990); Romo v. Anchorage, 697 P.2d 1065, 1068 (Alaska App. 1985).
In the present case, if the police officers' interaction with Horner was an investigative stop, that stop was unlawful, and Horner is entitled to reversal of his conviction. If, on the other hand, the officers merely engaged in a police-citizen contact with Horner, then Horner's conviction should be affirmed. Our analysis of Horner's encounter with the airport police In our prior decision in this case, we directed the superior court to make more detailed findings on the issue of whether the officers' encounter with Horner was an investigative stop or a police-citizen contact. In response, Superior Court Judge Niesje J. Steinkruger issued written findings, concluding that the encounter was a police-citizen contact.
Specifically, Judge Steinkruger found that the officers' encounter with Horner and his companions took place between the airplane and the building that housed Ken's Air Service. The officers, who were in uniform, left their patrol cars in the parking lot next to the building, and they approached Horner and his companions on foot.
When the officers walked up to Horner and his two companions, Zito initially spoke in a friendly manner. However, Zito's tone became more accusatory after Horner denied that he and his companions had been moving the boxes that were stacked next to the airplane.
Zito continued to ask Horner questions about the boxes and Horner's connection to them. Nevertheless, neither Zito nor his fellow officer attempted to control Horner's movements, nor did they order him to do anything, or handcuff him, or threaten him with restraint. Moreover, the contact was brief, and it took place in an open, public location. And although Zito was openly skeptical of Horner's answers, Zito's tone remained reasonably low-key throughout the encounter.
Based on these findings, as well as the content of the conversation between Zito and Horner, Judge Steinkruger concluded that a reasonable innocent person in Horner's position would have felt free to walk away and refuse to answer further questions. That is, the judge found that the encounter was a police-citizen contact rather than an investigatory stop. On appeal, Horner takes issue with a few of Judge Steinkruger's findings of fact.
Horner contends that the evidence does not support the judge's finding that the officers parked their patrol cars in the parking lot adjacent to the Ken's Air Service building. Rather, according to Horner, the officers testified that they parked their cars on the tarmac behind the airplane.
Horner appears to be correct. However, this discrepancy would not affect Judge Steinkruger's analysis unless the patrol cars were parked in such a way as to block Horner's path and restrict his freedom of movement. Horner does not assert that this was the case. In fact, according to the testimony, the officers parked their cars at least 100 feet away.
See Ozhuwan v. State, 786 P.2d 918, 920 (Alaska App. 1990) (holding that an investigatory stop occurred when a police officer activated the overhead lights on his patrol car and parked his patrol car so that it blocked the only exit for the defendant's vehicle).
Additionally, Horner points out that when the officers walked up to Horner and his companions, the officers were between the airplane and the Ken's Air Service building — in other words, between Horner and the building toward which he and his companions were walking. But there is nothing in the record to indicate that the two officers blocked Horner and his two companions from their intended path, or that the officers took other actions to physically restrict Horner's freedom of movement. Thus, even though Horner and his companions may have had to walk past (as opposed to around) the officers to continue on their path, this would not be the kind of conduct that a reasonable person would view as threatening or offensive.
Horner also points out that Zito immediately asked to see everyone's identification. But a police officer's request for identification does not automatically turn an encounter into an investigatory stop. As this Court noted in Wright v. State, 795 P.2d 812, 815 (Alaska App. 1990), "It is settled that a law enforcement officer may request and briefly inspect a person's identification without turning the encounter into a [Fourth Amendment] seizure" — at least, so long as the officer does not convey the message that compliance is required, and so long as the officer does not retain the identification for an unnecessarily long time. See the discussion of this issue in Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (4th ed. 2004), § 9.4(a), Vol. 4, pp. 426-27.
Florida v. Bostick, 501 U.S. at 434-35, 111 S.Ct. at 2386.
Pooley v. State, 705 P.2d 1293, 1306 (Alaska App. 1985).
Horner points out that, at one point, Officer Zito spoke of "needing" to see identification. Based on this, Horner argues that Zito demanded — rather than requested — to see identification.
However, according to the transcript quoted above, Zito's original request was, "Okay, I just need to talk to you guys real quick. Everybody got ID? Everybody have ID? Identification? Identification?" At this point, it appears that Horner and his male companion began to comply with Zito's request — because Zito's next statement on this subject was addressed to Horner's female companion: "I need your ID too, ma'am."
In context, it is unclear whether Zito's statement about "needing" the female companion's identification should be construed as a demand. But even if it is construed in that fashion, the record suggests that Horner was already in the process of complying with Zito's earlier request.
Horner also points out that Zito told him and his companions that he "need[ed]" to talk to them. Horner characterizes this language as a demand that he and his companions stop and submit to questioning. But in colloquial usage, one person will often tell another person that they "need" to talk to them, and both people understand this statement to be a request rather than a command.
It is true that, in this case, the person speaking was a police officer. But viewing the evidence in the light most favorable to Judge Steinkruger's ruling (as we are obliged to do), this fact does not alter the conclusion that there was no show of authority.
Zito's choice of wording is not determinative. Rather, this Court must assess the overall context of the encounter to determine whether a reasonable person in Horner's situation would have interpreted Zito's language as a command to stop and be questioned or, instead, a request. Judge Steinkruger found that Zito's tone was friendly and low-key, that the encounter took place in a public area, and that Zito and his fellow officer made no attempt to block Horner and his companions or restrict their movement in any other way. The record supports these findings. Given this context, we agree with Judge Steinkruger that Zito's initial statement about "needing" to talk to Horner and his companions did not convert the encounter into an investigative stop.
Finally, H orner argues that he and h is companions felt coerced because Z ito told them "lies . . . that the police had been following [them] and . . . watching [them,] and that [the police] already knew what Mr. Horner [and his companions were] doing."
This is a mischaracterization of the record. Zito did not tell Horner that the police had been spying on him and his companions. Rather, Zito told Horner that "our tower" had been watching Horner and his companions. In other words, Zito told Horner that airport employees whose job was to observe activities on the tarmac and runways had seen Horner and his companions as they walked back and forth in public view.
It is true that, strictly speaking, the dispatcher in the control tower had not told the police officers that she had seen Horner and his companions carrying boxes to the plane. Rather, the dispatcher informed the officers that three people were walking back and forth between the plane and a truck parked next to the plane. However, given the circumstances — that is, given the report from the tower, and given Zito's own observation of the boxes stacked next to the plane — it was reasonable for Zito to conclude that Horner and his companions had just carried these boxes to the plane.
In other words, Zito did not lie to Horner. Nor was Zito's description of the observations made by the tower employees the kind of statement that would be perceived as coercive by a reasonable innocent person in Horner's situation.
Conclusion
For these reasons, we agree with Judge Steinkruger that the encounter between the airport police and Horner was a police-citizen contact rather than an investigative stop. This being so, the officers did not need a particularized suspicion of criminal activity before they approached and questioned Horner.
Accordingly, the judgement of the superior court is AFFIRMED.