Opinion
Court of Appeals No. A-9744.
February 27, 2008.
Appeal from the District Court, Third Judicial District, Homer, Margaret L. Murphy, Judge, Trial Court No. 3HO-04-509 CR.
Pamela Dale, Law Office of Pamela Dale, Anchorage, for the Appellant. Jean E. Seaton, Assistant District Attorney, June Stein, District Attorney, Kenai, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
Anton Majaev pleaded no contest to driving while under the influence. He preserved the right to appeal the denial of his motion to dismiss.
AS 28.35.030(a).
Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Majaev argues that he was illegally seized when Alaska State Trooper Travis L. Bordner waved at Majaev to approach. But we conclude Trooper Bordner's contact with Majaev was not a seizure and affirm the judgment of the district court.
Facts and proceedings
On October 10, 2004, Trooper Bordner responded to a report of an armed landowner planning to break up a juvenile party in the Homer area. When he arrived, Trooper Bordner learned the juveniles had left before the property owner arrived. While the trooper was talking with the property owner, he received a report that juveniles were drinking at a turnout about a mile down the road. The trooper was familiar with the area and knew of several places where juveniles could be partying. When he followed up on this second report, the trooper saw a group of twenty to thirty people who appeared to be in their mid-teens to mid-twenties at a turnout about a mile from where he had received the report. As he drove towards them, almost everyone ran into the woods.
As Trooper Bordner pulled into the turnout, he stopped with his vehicle facing away from the road about ten feet from where a pickup truck was parked facing the road. The trooper made eye contact with the driver of the pickup as the trooper pulled into the turnout. Trooper Bordner never activated his lights or siren. As the trooper approached the vehicle, the driver, Majaev, pulled out of the turnout and drove thirty to fifty feet away. Trooper Bordner walked into the road so he could see the truck's license plate number. The truck stopped, and Trooper Bordner motioned with his arm for the driver to return. Majaev backed up and rolled down his window to speak with the trooper. Upon making contact with Majaev, Trooper Bordner noticed an odor of alcohol and saw beer cans in the back of Majaev's pickup truck. After investigation, the trooper charged Majaev with driving while under the influence.
AS 28.35.030(a).
Majaev filed a motion to dismiss, claiming the trooper had illegally seized him. District Court Judge Margaret L. Murphy denied Majaev's motion. Majaev later entered a no contest plea, preserving this issue for appeal.
Discussion Why we conclude Majaev was not seized
Majaev argues that Judge Murphy erred when she denied his motion to dismiss. Majaev claims Trooper Bordner seized him when the trooper waved his arm for Majaev to approach and there was no reasonable suspicion to support such a seizure.
A fourth amendment seizure "exists `[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.'" A "show of authority" is defined 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." The critical inquiry is whether the officer, although perhaps making inquiries that a private citizen would not be expected to make, has otherwise conducted himself in a manner consistent with what would be viewed as a nonoffensive contact if occurring between two ordinary citizens. Looking at the record, we conclude a reasonable person would not interpret Trooper Bordner's actions as an intent to restrain or confine. Therefore, Majaev was not seized at the time Majaev made contact with the trooper.
Romo v. Anchorage, 697 P.2d 1065, 1068 (Alaska App. 1985) (quoting Waring v. State, 670 P.2d 357, 363 (Alaska 1983)).
Id. at 1068.
Id. (citing Waring, 670 P.2d at 364).
Trooper Bordner pulled his vehicle into a turnout about ten feet away from Majaev's truck. The two vehicles were facing different directions. Although the trooper made eye contact with Majaev when the trooper pulled into the turnout, he did nothing else to indicate to Majaev that he could not leave. Majaev drove out of the turnout and voluntarily stopped thirty to fifty feet down the road. When Majaev made eye contact with the trooper, the trooper motioned with his arm for Majaev to return. At no point did the trooper activate his lights or siren. Under these circumstances, we conclude that a reasonable person would not interpret a hand or arm wave, even coming from a law enforcement officer, as a show of authority or an intent to restrain or confine. (For example, in United States v. Laboy, the court ruled that "[m]erely motioning a person to approach a police officer, unaccompanied by verbal communication or show of force, is not inherently coercive . . . a seizure does not occur simply because an officer waves at a person, signaling him to come over, and then asks a few questions.")
979 F.2d 795 (10th Cir. 1992).
Id. at 799.
Majaev argues that when the trooper signaled with his arm for Majaev to return, Majaev was seized because failure to comply with the trooper's directive would have been a criminal offense under AS 28.35.182, failure to stop at the direction of a peace officer. However, because we ruled above that the arm wave was not a show of authority or an intent to restrain or confine, the statute does not apply. We are satisfied that the trial court did not err in finding that no fourth amendment seizure occurred at the point Majaev backed up his vehicle and made contact with Trooper Bordner.
Because we hold that no fourth amendment seizure occurred, we do not need to reach the issue of whether Trooper Bordner had legal justification to contact Majaev.
Conclusion
The judgment of the district court is AFFIRMED.