Opinion
Court of Appeals No. A-9673.
January 2, 2008.
Appeal from the District Court, First Judicial District, Ketchikan, Kevin G. Miller, Judge, Trial Court No. 1KE-05-896 CR.
Mandy Weeks, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Carolyn Perkins, Assistant District Attorney, Ketchikan, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Based on the information provided in an anonymous phone call, a Ketchikan police officer stopped Donald R. Hosier to investigate whether he was driving while under the influence. Although Hosier was not charged with this offense, he was charged with and convicted of driving while license revoked.
AS 28.15.291(a)(1).
On appeal, Hosier claims that the police lacked reasonable suspicion to conduct the investigative stop. He asserts that the caller had a motive to file a false report and that the police had no evidence that corroborated the caller's information. Hosier also claims that the police unlawfully expanded the scope of the investigative stop by checking the status of his driver's license. For the reasons explained here, we affirm Hosier's conviction.
Hosier was sentenced to 120 days with 60 days suspended. He claims that his sentence is excessive. He also claims that District Court Judge Kevin G. Miller erred when he ruled that he was subject to a 30-day mandatory minimum period of imprisonment. We do not have jurisdiction to resolve Hosier's claim that his sentence is excessive because he was sentenced to less than 120 days to serve. We do, however, have jurisdiction to address Judge Miller's finding that Hosier was subject to the 30-day mandatory minimum period of imprisonment. Again, for the reasons explained here, we affirm Judge Miller's decision.
See AS 12.55.120(a); Alaska R. App. P. 215(a)(1).
Facts and proceedings
On September 19, 2005, a man telephoned the Ketchikan Police Department to report a suspected drunk driver. The caller told the dispatcher that the driver, whose name was "Don," had just left the Totem Bar and was heading north "through the tunnel." The caller added that the driver was in a long blue car, similar to a Lincoln, and provided the vehicle's license plate number. The caller said that he too had been at the Totem Bar, had seen Don drinking, and had told him that he should not be driving. He said that Don told him he was only driving home. When the dispatcher asked if he wanted to provide his name, the caller said his name was "Vance."
After receiving this information, the dispatcher checked the license plate number and then made a broadcast to Ketchikan police officers. The dispatcher radioed that there was a possible drunk driver who had just left the Totem Bar and was heading north. The dispatcher said the driver was possibly in a blue Lincoln, gave the vehicle's license plate number, and said the plate was registered to a blue Oldsmobile four-door vehicle owned by Donald Hosier. The dispatcher also relayed that the caller said he had been at the bar, had watched Hosier drinking, and had spoken to him before he departed. She did not provide the caller's name.
Approximately three minutes after this information was broadcast, Ketchikan Police Officer Desiree Morley, who was driving southbound, saw a vehicle matching the broadcast description heading north. She saw that the license plate number matched the number provided by the dispatcher. Morley turned around, caught up to the vehicle, and stopped it. Hosier was the driver. When Morley contacted Hosier, she smelled an odor of alcohol coming from the vehicle. She asked Hosier for his driver's license, and he told her he did not have it with him. She then checked the status of his driver's license and discovered that it was revoked in Alaska.
Officer Morley then had Hosier do several field sobriety tests. Based on Hosier's performance on these tests, Morley decided that Hosier had been drinking but that he was not driving while under the influence. Morley cited Hosier for driving with a revoked license.
Later that evening, while Morley was preparing her reports, she noticed that the dispatcher had written on the dispatch card that the caller's whole name was "Vance Cantron." When Morley asked the dispatcher about this information, the dispatcher said that she had recognized Cantron's voice when he called.
Before trial, Hosier moved to suppress the evidence that he was driving with a revoked license. Hosier argued that the police could not rely solely on Cantron's tip because he had a motive to make a false report. Specifically, Hosier claimed that he was dating Cantron's former girlfriend at the time of the incident. Hosier argued that because Cantron's information was not credible and because the police had no corroborating information indicating that he was driving while under the influence, the traffic stop was illegal. Hosier also claimed that, even if the stop was justified to investigate a driver who might be under the influence, Morley unlawfully expanded the scope of the stop by checking the status of his driver's license.
To resolve Hosier's motion to suppress, Judge Miller held an evidentiary hearing. Both Morley and Hosier testified, as did Dale Gilmore, who was sitting next to Hosier at the bar that night. Hosier and Gilmore confirmed that Cantron was in the bar, but they testified that, contrary to the information Cantron provided to the dispatcher, he did not talk to Hosier. Judge Miller also heard recordings of Cantron's phone call to the dispatcher and the dispatcher's subsequent broadcast to the Ketchikan police.
Judge Miller ruled that, based on the information Cantron provided the dispatcher, the police had reasonable suspicion that Hosier was driving while under the influence. Judge Miller acknowledged that Hosier was attacking Cantron's motive for tipping off the police, but he explained that he had to focus on what the dispatcher knew at the time the call was made. He noted that there was no evidence that the dispatcher had reason to believe Cantron was lying. Nor was there any indication in the record that the officer who stopped Hosier had any reason to doubt the credibility of the tip. Consequently, based on the objective facts known to the dispatcher and the officer when the call was made, Judge Miller found that the investigative stop was lawful.
Judge Miller also found that Morley checked the status of Hosier's license soon after she stopped him and before she administered the field sobriety tests. Accordingly, he rejected Hosier's claim that Morley had unlawfully expanded the scope of the investigative stop by checking on his license. Judge Miller denied Hosier's motion to suppress.
Hosier entered a Cooksey plea and was convicted of driving while license revoked. Judge Miller ruled that Hosier was subject to a 30-day mandatory minimum period of imprisonment. Judge Miller imposed a 120-day sentence with 60 days suspended (60 days to serve). This appeal follows.
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Why we find that the police had reasonable suspicion to stop Hosier for driving while under the influence
On appeal, Hosier claims that Judge Miller should have found that the police could not rely on Cantron's information. As mentioned above, Hosier presented evidence at the suppression hearing that Cantron had a motive to make a false report and that Cantron lied when he told the dispatcher that he spoke with Hosier that night. From this, Hosier argues that Cantron was not credible and that the police were required to corroborate his report before conducting the investigative stop.
But Hosier's case is similar to other cases where we have upheld investigative stops based on anonymous phone calls reporting someone driving while under the influence. For instance, in Smith v. State, the "Ketchikan Police Department received a telephone call reporting that `there was an intoxicated man getting into a white Toyota Tercel, Arkansas license 599 GHN, on Mission Street near the Five and Dime store.'" A Ketchikan police officer received this report, saw the vehicle parked at the side of the road, and watched it pull away as he approached. He then stopped the vehicle. We upheld the stop. We explained that the phone call indicated that "the informant saw an intoxicated man getting into a white Toyota. From the detail of the informant's description of the vehicle and its current location, it was reasonable for the police to infer that the informant had a good view of Smith and was reporting something that he actually and recently saw." We pointed out that the "report was certainly not stale," and that, because the officer "immediately spotted the Toyota, . . . he was able to corroborate [its] location."
83 P.3d 12 (Alaska App. 2004).
Id. at 13.
Id.
Id. at 14.
Id.
In Effenbeck v. State, a police dispatcher received a report that "a brown Ford, Alaska license number BJL-777, stopped and bought fuel at a Union 76 station, then headed north on the Kenai Spur Highway, and that the driver was intoxicated." The dispatcher relayed this information to a Kenai police officer who, twenty-two minutes later, located the vehicle. At the suppression hearing, the officer did not recall if the dispatcher told him the caller's name.
700 P.2d 811 (Alaska App. 1985).
Id. at 812.
Id.
Id.
We concluded that it was reasonable to infer from the telephone report that a citizen informant had personally seen Effenbeck at a gas station and had concluded that she was intoxicated. We pointed out that the informant accurately described the vehicle, and that the police located it shortly thereafter. We also explained that "[w]hile a statement that a driver was intoxicated is in part conclusory, it is the kind of shorthand statement of fact that lay witnesses have always been permitted to testify to in court."
Id. at 813-15.
Id. at 813.
The circumstances in Hosier's case are more compelling than those in Effenbeck. Here, the informant called the Ketchikan dispatcher and told her that a driver, a man named "Don," had just left the Totem Bar and was heading north through the tunnel. The caller described the vehicle as a long blue car, similar to a Lincoln, and provided the vehicle's license plate number. The caller also explained that he had seen Don drinking while at the Totem Bar, and had spoken with him. He said he told Don that he should not be driving, and that Don said he was only driving home.
Based on the reported license plate number, the dispatcher found that the plate was registered to a blue Oldsmobile owned by Donald Hosier. The dispatcher broadcast this information over the radio. Officer Morley spotted the car that matched the information — including the car's basic location and its license plate number — approximately three minutes after the dispatcher's radio call.
The facts developed by the dispatcher and Officer Morley corroborated the important facts that Cantron provided. More importantly, nothing arose in the phone call or during the investigation that caused the dispatcher or Morley to suspect that the information provided by Cantron was false.
When reviewing whether the police had reasonable suspicion to make an investigative stop, courts judge the facts against an objective standard. That is, the reasonableness of the officer's suspicion is judged in light of the totality of the circumstances known to the officer at the time of the stop. The pertinent question is would the facts available to the officer at the moment of the stop "`warrant a man of reasonable caution in the belief' that the action taken was appropriate." Here, Judge Miller focused on the facts known to the officer and the dispatcher at the time the stop occurred. He acknowledged that Cantron may have had improper motives for the call. But he found that there was no evidence that the dispatcher or the officer were aware at the time of the stop that Cantron had fabricated any of the information he provided, or that Cantron had a motive to do so.
Hamman v. State, 883 P.2d 994, 995 (Alaska App. 1994); Ozhuwan v. State, 786 P.2d 918, 921 (Alaska App. 1990); State v. Moran, 667 P.2d 734, 736 (Alaska App. 1983).
McGee v. State, 70 P.3d 429, 431 (Alaska App. 2003) (quoting Coleman v. State, 553 P.2d 40, 45 (Alaska 1976) (quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)).
Accordingly, we affirm Judge Miller's rulings.
Why we agree that the investigation did not exceed the scope of the initial justification to conduct the investigative stop
Hosier claims that Judge Miller should have suppressed the evidence of his license offense for a second reason. He argues that Officer Morley unlawfully expanded the scope of the investigative stop by checking the status of his driver's license. Hosier argues that even if Officer Morley had reasonable suspicion to stop him for driving while under the influence, the stop should have ended as soon as Officer Morley determined that he had not committed that offense.
Judge Miller rejected this claim after finding that Officer Morley checked the status of Hosier's license before she administered the field sobriety tests. Based on this finding, Judge Miller ruled that Morley did not impermissibly prolong the stop to check on the status of Hosier's license.
Hosier has not shown that Judge Miller's finding was clearly erroneous, and that finding supports Judge Miller's ruling. But Hosier's claim would fail even if Officer Morley had completed her driving while under the influence investigation before she checked on the status of Hosier's license. When an officer conducts a lawful traffic stop, the officer does not need an independent basis to check the status of the license of the driver to ensure that the driver has a legal right to continue to operate the vehicle.
See Clark v. Anchorage, 112 P.3d 676, 678 (Alaska App. 2005) (noting the case law from other jurisdictions consistently recognizing that an officer who stops a motorist for a driving violation may ask the motorist to produce routine driving documents) (citing Chang v. State, 608 S.E.2d 283, 285 (Ga.App. 2004) ("[I]t does not unreasonably expand the scope or duration of a valid traffic stop for an officer to prolong the stop to immediately investigate and determine if the driver is entitled to continue to operate the vehicle by checking the status of the driver's license, insurance, and vehicle registration[.]") (quoting State v. Williams, 590 S.E.2d 151, 154 (Ga.App. 2003)); State v. Prince, 101 P.3d 332, 336 (N.M.App. 2004) ("During a traffic stop, the officer may conduct a de minimis investigatory detention to inquire about license, registration, and insurance, and to run a wants and warrants check."); Maysonet v. State, 91 S.W.3d 365, 373 (Tex.Crim.App. 2002) (noting that, during a traffic stop, an officer is permitted to ask the driver for their license, proof of registration, and insurance); Campbell v. State, 97 P.3d 781, 785 (Wyo. 2004) ("During a routine traffic stop, a law enforcement officer may request the driver's proof of insurance, operating license, and vehicle registration, run a computer check, and issue a citation or warning.").
Additionally, Alaska law requires drivers to have a valid driver's license in their immediate possession and to present that license for inspection upon demand by a peace officer. Consequently, once Hosier stated that he did not have his license with him, Morley had probable cause to believe Hosier was violating state law by driving without a license in his possession. Morley also had adequate cause to investigate whether Hosier was driving with a suspended, cancelled, or revoked license. Why we have no jurisdiction to decide Hosier's claim that his sentence is excessive Hosier raises two issues regarding his sentence. First, he claims that Judge Miller erred when he found that Hosier was subject to the 30-day mandatory minimum term of imprisonment. Second, he claims that Judge Miller imposed an excessive sentence.
AS 28.15.011(b); AS 28.15.131.
AS 28.15.011(b); AS 28.90.010(a).
See Russell v. Anchorage, 706 P.2d 687, 689 (Alaska App. 1985) (holding that, during a lawful traffic stop, the police may shift the focus of their investigation when they observe additional facts indicating that another offense might have been committed).
Both parties agree that Hosier's sentence of 60 days to serve does not meet this court's jurisdictional threshold. We concur that we lack jurisdiction to review Hosier's claim that his sentence of 60 days to serve is excessive. Under Appellate Rule 215(a)(1) and AS 22.07.020(b), we do not have jurisdiction to hear sentence appeals in misdemeanor cases if the unsuspended sentence is less than 120 days. Consequently, we refer this issue to the supreme court for its discretionary review.
Under Rozkydal v. State, we do have jurisdiction to resolve Hosier's claim that Judge Miller erred when he ruled that Hosier was subject to the 30-day mandatory minimum sentence. In Rozkydal, we clarified that the statutory limitations on appealing a sentence as excessive do not restrict defendants from appealing procedural irregularities in their sentencing proceedings or a sentencing judge's factual findings or legal rulings that affect the range of authorized sentences. In this latter portion of Hosier's sentencing claim, he challenges Judge Miller's factual finding and legal ruling.
938 P.2d 1091 (Alaska App. 1997).
Id.
Why we agree that Hosier was subject to a 30-day mandatory minimum sentence
As we noted above, Judge Miller found that under AS 28.15.291(b)(1)(D), Hosier was subject to a 30-day mandatory minimum period of imprisonment.
Before sentencing, the State gave written notice to the court and Hosier that under AS 28.15.291, Hosier was subject to the 30-day mandatory minimum period of imprisonment because his license had been revoked as a result of a prior driving while under the influence conviction. Under that statute, motorists who drive while their license is revoked due to one or more driving while under the influence convictions are subject to a 30-day mandatory minimum period of imprisonment. The State provided a judgment showing that Hosier had been convicted in April 2005 for driving while under the influence. The 2005 judgment revoked his license for one year.
AS 28.15.291(b)(1)(D); see also AS 28.15.181(c)(2)-(4).
Hosier claimed at sentencing that this 2005 conviction was for a May 2003 offense. He asserted that the Division of Motor Vehicles (DMV) had revoked his license after he committed the 2003 offense, and he argued that the 2005 judgment should have revoked his license concurrently with the DMV revocation. From this, he asserted that the court-ordered revocation in 2005 should have expired before his driving offense in this case. Judge Miller rejected this argument and found that the 2005 judgment had not imposed the 2005 license revocation concurrently with the earlier DMV action. He therefore found that Hosier was driving while his license had been revoked for driving while under the influence and that he was subject to the 30-day mandatory minimum period of imprisonment.
On appeal, Hosier renews his claim that he was not subject to a 30-day mandatory minimum period of imprisonment. But the argument he advances in support of this claim is not the same argument he raised in district court. Hosier no longer argues that his license revocations should have been imposed concurrently. Instead, he argues that even if the DMV and court-imposed license revocations were imposed consecutively, his revocation period ended before his September 21, 2005, offense.
Because this claim was not raised below, the district court made no findings on this issue. There are no findings (nor any evidence in the record to support findings) on the duration of Hosier's 2003 administrative revocation, whether that revocation period had expired in April 2005 when the court revoked Hosier's license for one year, and if so, whether (as Hosier suggests) the district court imposed its one-year license revocation retroactively to the date the DMV revocation had expired.
Because none of these factual questions was raised or resolved in district court, we conclude that Hosier failed to preserve this claim for appeal.
Conclusion
The district court's denial of Hosier's motion to suppress is AFFIRMED. The district court's ruling that Hosier was subject to the 30-day mandatory minimum jail time is AFFIRMED. Hosier's claim that his sentence is excessive is referred to the supreme court under Appellate Rule 215(k).