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Marker v. State

Court of Appeals of Alaska
Jun 21, 2006
Court of Appeals No. A-8608 (Alaska Ct. App. Jun. 21, 2006)

Opinion

Court of Appeals No. A-8608.

June 21, 2006.

Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge. Trial Court No. 3AN-01-6084 Cr.

Nancy Shaw, Anchorage, for the Appellant.

Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.


MEMORANDUM OPINION


Charles E. Marker appeals his conviction for third-degree controlled substance misconduct (possession of cocaine with intent to deliver). He contends that the evidence against him was obtained as a result of an illegal seizure of his person.

AS 11.71.030(a)(1).

As we explain in more detail below, Marker was the passenger in a car that was pulled over for an equipment violation. During the traffic stop, Marker identified himself as the owner of the vehicle — thus admitting his responsibility for the equipment violation. Moreover, Marker was not wearing a seatbelt. These two facts — Marker's ownership of the vehicle, and his failure to wear a seatbelt — provided grounds for the police to issue citations to Marker.

The police ordered Marker to get out of the car. This was permissible under the rule announced by the United States Supreme Court in Maryland v. Wilson. When Marker got out of the car, the police observed a bag of white powder, resembling cocaine, between the passenger seat and the passenger door ( i.e., alongside where Marker had been sitting). This discovery justified Marker's arrest.

Accordingly, we affirm Marker's conviction.

The underlying facts

Early in the morning of August 2, 2001, Officer Kevin Mitchell of the Anchorage Police Department was on patrol in the midtown area of Anchorage. Mitchell observed a Ford Thunderbird with two broken tail lights. Both tail lights were emitting white light, although one of the tail lights was covered with red tape.

As Mitchell began to follow the car, he noticed two pedestrians (one of whom he recognized as a known cocaine addict) waving their arms at the Thunderbird. As soon as the pedestrians saw Mitchell's patrol car, they stopped waving and continued walking.

Mitchell wished to continue following the car, but the Thunderbird turned, and Mitchell lost sight of it. After searching on several side streets, Mitchell finally found the car again; at this point, he initiated a traffic stop.

The Thunderbird was occupied by two males, a driver and a passenger. As Mitchell walked up to the vehicle, he noticed the passenger shifting his body to the right in an apparent attempt to move some object between the passenger seat and the passenger door.

When Mitchell reached the driver's window, he could see that neither the driver nor the passenger was wearing a seatbelt. Mitchell asked both occupants for their licenses. The driver, William Lewis, informed the officer that his license was revoked. The passenger, Charles Marker, told Mitchell that he was the owner of the car.

Officer Mitchell ran both men's driver's licenses through his dispatcher. The dispatcher informed Mitchell that, according to the Alaska Public Safety Information Network, Marker was "red-flagged" as an "assaultive offender" who was known to carry dangerous weapons.

By this time, Officer Sean Case had arrived to provide back-up assistance. Mitchell decided that he and Case should perform a pat-down search of both Lewis and Marker, so Mitchell directed both men to get out of the car. While Case was conducting the pat-down of Marker (on the passenger side of the vehicle), Mitchell shined his flashlight through the open window of the Thunderbird and observed a clear plastic bag between the passenger seat and the door. This bag appeared to contain a white powdery substance resembling cocaine, as well as some paper. Upon making this discovery, Mitchell directed Case to arrest Marker. A field test of the white powder showed that it was presumptively cocaine. Apparently, later laboratory testing confirmed that the substance was cocaine, because Marker was indicted for third-degree controlled substance misconduct.

Following his indictment, Marker asked the superior court to suppress the cocaine found in his vehicle. Marker argued that, even though his tail lights were emitting white light, the stop of his car was pretextual. Marker suggested that Officer Mitchell's true motivation for stopping the car was Mitchell's knowledge or suspicion that Lewis and Marker were cocaine users. Marker argued in the alternative that even if the stop of the vehicle was lawful, the police could not lawfully order Marker to get out of the vehicle — because Marker was only a passenger and he had committed no offense.

The superior court denied Marker's suppression motion, and Marker was convicted at a jury trial.

The stop of the car was lawful 13 AAC 04.025(a) declares that a vehicle's tail lights must emit red light. Moreover, 13 AAC 04.145(f) declares that vehicle lights must not emit colors other than those specified in 13 AAC chapter 04. Thus, it is unlawful to drive a vehicle whose tail lights are emitting white light. Williams v. State, 853 P.2d 537, 538 (Alaska App. 1993). If the tail lights of Marker's vehicle were emitting white light, this would be sufficient cause for a traffic stop.

In his brief to this Court, Marker invites us to view several photographs of the tail lights on his vehicle. (These photographs are included in Marker's excerpt of record.) According to Marker, these photographs show that the broken tail lights were well-covered with tape, and that very little white light could have been escaping from the tail lights.

This argument is made for the first time on appeal. In the superior court, Marker conceded (both in his written motion and again at the evidentiary hearing) that his tail lights were emitting white light. We therefore uphold the superior court's finding that the tail lights on Marker's vehicle were emitting white light.

Marker also argues on appeal that, even if his tail lights were emitting white light, this was not Officer Mitchell's true reason for stopping the vehicle. Marker argues that the stop was pretextual, in that Mitchell's true motive was to investigate potential drug offenses.

This argument, too, is made for the first time on appeal.

We acknowledge that the "Argument" section of Marker's superior court suppression motion is entitled, "The Stop was Pretextual". However, this title does not refer to the stop of the vehicle. Rather, it refers to the officers' act of detaining Marker — ordering him out of the vehicle so that they could conduct a pat-down search.

The text of Marker's suppression motion shows that Marker did not argue that the stop of the vehicle was unjustified or that it was pretextual. Rather, Marker argued that the police acted unlawfully when they ordered him to get out of the vehicle, since he was only a passenger and was not suspected of any crime. Here is Marker's argument:

An officer may arrest someone for a misdemeanor committed in their presence or for a felony where probable cause exists for the arrest. All other arrests executed without a warrant are per se unreasonable[,] and evidence seized as a result of the arrest must be suppressed.

No warrant existed for Marker's arrest. Marker was not stopped because he was about to commit a crime. As a passenger in a car stopped because of . . . a tail light [violation], he should have been free to leave. Instead, he was subjected to a seizure of his person. . . . He was treated as though he had been arrested. A reasonable person in [Marker's] shoes would have concluded [that] he was under arrest when he was ordered out of the car.

. . .

[This] was an illegal arrest, not supported by probable cause. . . . No traffic stop alone should justify removal and search of a passenger in the car.

. . .

It is likely that . . . Marker was stopped because he was a crack user. . . . However, being a crack addict does not justify a stop[.] . . . The police cannot engage in seizures of people hoping [that] something will turn up. . . . In Alaska, the police are not permitted to make a "pretextual arrest".

. . .

Had Marker not been removed from the vehicle illegally, there would have been no search of the car or discovery of the cocaine. The cocaine should be suppressed as [the] fruit of the illegal detention.

Marker's attorney reiterated this same argument at the evidentiary hearing. She told the superior court that the illegality occurred after the traffic stop, when the officers decided to detain Marker and subject him to a pat-down search:

Defense Attorney: Mr. Marker was a passenger, suspected of doing no wrongdoing, in a traffic-related offense. However, [the officer] continued to detain Mr. Marker. . . . The officer candidly admits [that] the reason for the pat[-down] search was because of the flags [in the Public Safety Information System], not because of any suspicion of wrongdoing [or connection to] any crime he was investigating [or] any infraction that he was investigating. If that's the case, then there's no justification for a Terry stop. . . . So I think you have a lack of justification for a Terry stop of Mr. Marker.

It is true that, a few sentences later, the defense attorney remarked in passing that "there's a question of whether it's pretextual". Taken out of context, this assertion could potentially refer to a pretextual stop of the vehicle. But a few minutes later, the defense attorney explained that she was not talking about the stop of the vehicle, but rather the stop of Marker's person:

Defense Attorney: A reasonable person in [Mr. Marker's] shoes would have felt that he was not free to leave. He was ordered to get out of the car, . . . specifically for a search. . . . [There was no] articulable suspicion to investigate Mr. Marker. . . .

So I think [that] the State has the burden on this [issue], to justify a stop of Mr. Marker — not of the car, not of the driver, but of Mr. Marker himself, and then [the] removal of [Mr. Marker] from the car in order to do a search. . . .

For these reasons, we conclude that Marker failed to preserve his argument that the stop of the vehicle was pretextual.

Accordingly, we uphold the superior court's ruling that Officer Mitchell lawfully stopped the vehicle because its tail lights were emitting white light in violation of the Alaska traffic code.

The police could lawfully direct Marker to get out of the car

In Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), the United States Supreme Court held that, consistent with the Fourth Amendment, a police officer making a traffic stop may order the passengers (not just the driver) to get out of the car pending completion of the stop.

Marker does not dispute that Maryland v. Wilson governs his case. However, he argues that Wilson provides no justification for the officers' actions here. Marker notes that, under Wilson, a police officer's authority over the passengers lasts only until the traffic stop is completed. Marker further notes that, in his case, by the time the officers ordered him to get out of the car, the driver (Lewis) had already been removed from the car and arrested for driving with a revoked license. Based on this, Marker argues that the traffic stop was over before the police ordered Marker to get out of the car. We disagree.

First, under 13 AAC 04.007, both the driver and the owner of a vehicle can be cited for an equipment violation. Therefore, when Marker identified himself as the owner of the vehicle, Officer Mitchell was authorized to issue a citation to Marker for the tail light violation.

Second, AS 28.05.095(a) declares (with certain exceptions not pertinent here) that all occupants of a motor vehicle who are age 16 or older must wear a seat belt while the vehicle is being driven. Because Marker was not wearing a seat belt, and because the vehicle was lawfully stopped for a separate reason, Officer Mitchell was authorized to issue a citation to Marker for this infraction.

See AS 28.05.095(e).

In other words, Marker was not simply a passenger in a vehicle whose driver had been stopped for a violation of the law. Rather, Marker was himself chargeable with two infractions. Because of this, the traffic stop was not over when the officers directed Marker to get out of the vehicle. And, accordingly, the officers acted within the scope of the Wilson decision.

It is true that, at the evidentiary hearing, Officer Mitchell did not rely on this rationale as the justification for his and Officer Case's actions. Rather, Mitchell testified that he decided to get Marker out of the vehicle because of the "flag" in the Public Safety Information System ( i.e., the information indicating that Marker was an "assaultive offender").

But Mitchell's subjective reasons for his actions are irrelevant. The question is whether the officer's actions were objectively justified, given the known circumstances. Under the circumstances here, and under the Supreme Court's decision in Wilson, the police were justified in ordering Marker to get out of the car.

See Bertilson v. State, 64 P.3d 180, 185 (Alaska App. 2003) ("The officers' subjective reasons for making the arrest are irrelevant. Rather, [we must] analyze the objective information which the police had at the time . . . [to] determin[e] whether there was probable cause to make that arrest."); Beauvois v. State, 837 P.2d 1118, 1121-22 n. 1 (Alaska App. 1992) ("The test is whether, under the facts known to the police officer, the stop of the car was objectively justified.").

Whether the bag of cocaine was in plain view after Marker got out of the car

As we explained earlier in this opinion, after Marker got out of the car, Officer Mitchell shined his flashlight into the interior of the vehicle and observed a clear plastic bag containing a white, powdery substance resembling cocaine. This bag was lying between the passenger seat and the car door.

Marker argues that Mitchell had no authority to order Marker out of the car, and that Mitchell was able to view whatever was inside the car (next to the passenger door) only because of this illegal action. Marker contends that the officer "exceeded any conceivable lawful scope of [a] stop for defective [tail]lights or the revoked license of the driver".

But we have just concluded that the police could lawfully direct Marker to get out of the car. Thus, Mitchell's view of the interior of the car was not gained by illegal means. And with regard to the fact that Mitchell illuminated the interior of the car with his flashlight, we note that Marker's trial attorney specifically told the superior court that "[she didn't] have any problem with [Officer Mitchell's use of] the flashlight, assuming that the officer could have [lawfully] removed [Marker] from the car."

Marker further argues that "[e]ven if Officer Mitchell lawfully positioned himself to gain a view of [the] edge of the plastic bag, the bag was not obviously contraband." This argument — that the cocaine was not in "plain view" because its unlawful nature was not apparent — was not presented to the superior court, either in Marker's written suppression motion or in his later argument at the evidentiary hearing. Rather, Marker's trial attorney argued that the cocaine should be suppressed because the police did not have the right to ask Marker to get out of the car — and that it was this unauthorized movement that gave Mitchell the opportunity to "be in a position where [he] could shine the light" and observe the cocaine.

Moreover, Marker's argument that "the bag was not obviously contraband" is contained in a single paragraph, consisting only of the cursory assertion that we have just quoted. Thus, even if this argument had been preserved, it would now be waived.

If a claim is given only cursory treatment in a party's brief, an appellate court can deem the point waived and decline to consider it. See Katmailand, Inc. v. Lake and Peninsula Borough, 904 P.2d 397, 402 n. 7 (Alaska 1995); Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska 1990); Wren v. State, 577 P.2d 235, 237 n. 2 (Alaska 1978); Kristich v. State, 550 P.2d 796, 804 (Alaska 1976); Lewis v. State, 469 P.2d 689, 691-92 (Alaska 1970).

The question of whether the police could lawfully conduct a pat-down search of Marker based on the "flag" in their information database is moot

Marker also argues that the police had no valid justification for patting him down. Marker acknowledges the existence of the "flag" associated with his name in the police computer information system, but he argues that the underlying factual basis of this "flag" is either uncertain or of dubious validity.

This issue is moot. The record shows that the discovery of the bag of cocaine in the car did not result from the pat-down. Rather, the police observed the cocaine, which was lying between the passenger seat and the car door, after Marker got out of the car. We have just ruled that the police could lawfully order Marker to get out of the car. This means that the cocaine was lawfully observed — and could therefore lawfully be seized.

After the cocaine was lawfully discovered, the police were authorized to arrest Marker, not just pat him down.

Conclusion

The judgement of the superior court is AFFIRMED.


Summaries of

Marker v. State

Court of Appeals of Alaska
Jun 21, 2006
Court of Appeals No. A-8608 (Alaska Ct. App. Jun. 21, 2006)
Case details for

Marker v. State

Case Details

Full title:CHARLES E. MARKER, Appellant v. STATE OF ALASKA, Appellee

Court:Court of Appeals of Alaska

Date published: Jun 21, 2006

Citations

Court of Appeals No. A-8608 (Alaska Ct. App. Jun. 21, 2006)