Opinion
Court of Appeals No. A-12229 No. 6448
04-05-2017
THERESA KENICK, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Myron Angstman, Angstman Law Office, Bethel, for the Appellant. John A. Earthman, District Attorney, Nome, and Craig W. Richards, 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. 2NO-14-227 CR
MEMORANDUM OPINION
Appeal from the District Court, Second Judicial District, Nome, Timothy D. Dooley, Judge. Appearances: Myron Angstman, Angstman Law Office, Bethel, for the Appellant. John A. Earthman, District Attorney, Nome, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Suddock, Superior Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Theresa Kenick appeals her conviction for refusing to submit to a breath test after she was arrested for driving under the influence. Kenick argues that the evidence against her was obtained as a result of an illegal investigative stop, and that the district court should have suppressed this evidence. For the reasons we are about to explain, we conclude that the stop was lawful, and that the district court therefore properly denied Kenick's suppression motion.
AS 28.35.032(a).
Underlying facts
Around 11:30 p.m. on April 11, 2014, Nome police officers Nicholas Harvey and Joseph Dickerson received a dispatch regarding a potentially intoxicated driver. The dispatch was based on a 911 call received from an off-duty dispatch officer, Jeremiah Angusuc (although Officers Harvey and Dickerson were not aware of this at the time).
According to the transcript of the 911 call, Angusuc told the on-duty police dispatcher that he was stuck behind a driver who was driving "way too slow" for road conditions. Angusuc added that the driver was "kind of hovering around the center line" — "not really crossing it, but they're not getting in the middle of the lane."
Officers Harvey and Dickerson located the suspect vehicle, and they followed it for about half a mile on the Beltz Highway. According to the later testimony, the vehicle was traveling approximately 10 miles per hour under the speed limit, and the driver "was going in between the ... double yellow center line and the fog line, coming close to hitting [those lines] each time" — "drifting over to one side, and then correcting and drifting back to the other" for the entire time that the officers were behind it.
Then, as the vehicle made a left turn onto Fifth Avenue, the vehicle entered the opposing lane of traffic — cutting into that opposing lane by about five feet. At this point, the officers initiated a traffic stop.
Officer Dickerson spoke to the driver and identified her as Theresa Kenick. Dickerson asked for, and received, Kenick's driver's license, insurance information, and vehicle registration. During this initial part of the stop, neither Dickerson nor his partner Harvey observed any obvious signs that Kenick was intoxicated.
When the two officers returned to their patrol car to run a check on Kenick's driver's license and vehicle registration, they discussed their observations of Kenick and they agreed that they hadn't seen any obvious signs of impairment. But, at that point, neither officer had asked Kenick whether she had been drinking. The officers then had the following conversation:
Harvey: Okay, nothing that indicates impairment then. Could just be inattentive driving, or any number of things. But if you don't have anything to go on ... , obviously, we can't just yard [sic] her out of the car for nothing.Dickerson then returned to Kenick's vehicle and returned her documents to her. He then had the following conversation with her:
Dickerson: Right; exactly.
Harvey: ... What did you tell her you stopped her for?
Dickerson: I didn't [tell her why]. ... I was going to tell her when I went up there [to return her documents].
Harvey: Just say [to her], "I just got a report that you might have been possibly impaired. Have you had anything to drink tonight?" Never hurts to ask, right?
Dickerson: Let me give you your stuff back. The reason I pulled you over is we had a report that someone
thought you were possibly DUI. Have you had anything to drink this evening?
Kenick: I did earlier.
Dickerson: How long ago?
Kenick: Probably about two hours ago.
Kenick then told Dickerson that she had consumed "like three" beers approximately two hours before. When Dickerson asked her if she was willing to perform field sobriety tests, Kenick agreed to perform the tests. Based on Kenick's performance on these field sobriety tests, Dickerson and Harvey concluded that she was intoxicated, so they arrested her and took her to the police station — where Kenick refused to submit to a breath test.
Kenick's suppression arguments
Kenick argues that the initial traffic stop was not supported by reasonable suspicion. We disagree. The officers observed Kenick driving at an abnormally slow speed, they saw her weaving from one side of her lane to the other, and they saw her cut into the opposing lane of traffic by about five feet when she turned left onto Fifth Avenue. These observations justified the officers in conducting the traffic stop.
See Ebona v. State, 577 P.2d 698, 701 n. 12 (Alaska 1978); Hamman v. State, 883 P.2d 994, 995 (Alaska App. 1994).
Kenick argues in the alternative that even if the initial stop was justified, the officers were required to let Kenick go because, during their initial conversation with her, they detected no outward signs of intoxication. Kenick contends that, by holding her beyond that initial conversation, the officers unlawfully prolonged the traffic stop.
Again, we disagree. Immediately after their initial conversation with Kenick, the officers returned to their car to run a check on Kenick's driver's license and vehicle registration. Kenick does not dispute the officers' authority to do that. Then, after this record check showed that nothing was amiss, Officer Dickerson walked back to Kenick's vehicle, returned her documents to her, explained the reason for the traffic stop, and asked Kenick if she had had anything to drink.
When the officer asked Kenick whether she had been drinking, this question was reasonably related to the circumstances that justified the traffic stop in the first place. This factor distinguishes Kenick's case from the United States Supreme Court's decision in Rodriguez v. United States, as well as from this Court's decision in Brown v. State. We therefore conclude that the officer's question did not improperly expand the scope of the traffic stop.
___ U.S. ___, 135 S.Ct. 1609, 1611; 191 L.Ed.2d 492 (2015).
182 P.3d 624, 625 (Alaska App. 2008).
For these reasons, we uphold the district court's denial of Kenick's suppression motion.
Kenick's post-trial motion for reconsideration of the suppression ruling
Following a jury trial, Kenick was convicted of breath-test refusal. Kenick's attorney then filed a motion that he labeled as a request for a "new trial". However, the defense attorney's motion actually asked the district court to reconsider its ruling on the suppression motion — a motion which, if granted, would not have resulted in a new trial, but rather in suppression of the State's evidence (and, inevitably, dismissal of the case).
In the defense attorney's motion, he pointed out that the evidence at trial indicated that there was a pothole near where the main road intersected with Fifth Avenue. The defense attorney argued that the existence of this pothole provided a potential explanation for Kenick's act of driving into the opposing lane when she made her left turn onto Fifth Avenue — thus potentially weakening the justification for the traffic stop.
The district court denied this motion for reconsideration — in part because the court found that the trial evidence did not establish that the pothole was the reason for Kenick's detour into the opposing lane, and in part because, even if Kenick drove into the opposing lane because of the pothole, this would not defeat the existence of reasonable suspicion for the stop.
The record supports both of the district court's rationales.
At trial, Kenick testified that, because of the pothole, she drove about a foot out of her way when she was making her turn onto Fifth Avenue. But the government's evidence was that Kenick drove about five feet into the opposing lane.
More importantly, the fact that there may have been a reasonable explanation for Kenick's act of driving into the opposing lane did not, as a legal matter, destroy the reasonable suspicion for the traffic stop. The test for reasonable suspicion does not require the police to affirmatively rule out all innocent explanations for the behavior or circumstances they have observed. And here, the traffic stop was based on Kenick's erratic driving over the course of half a mile, not just her left turn onto Fifth Avenue.
Bochkovsky v. State, 356 P.3d 302, 308 (Alaska App. 2015); State v.Moran,667 P.2d 734, 736 (Alaska App. 1983). --------
For these reasons, we uphold the district court's denial of Kenick's motion for reconsideration of the court's pre-trial suppression ruling.
Conclusion
The judgement of the district court is AFFIRMED.