Opinion
Court of Appeals No. A-9285.
May 3, 2006.
Appeal from the District Court, Fourth Judicial District, Fairbanks, Jane F. Kauvar, Judge. Trial Court No. 4FA-04-3373 CR.
Jennifer P. Hite, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Jill S. Dolan, Assistant District Attorney, Jeffrey O'Bryant, District Attorney, Fairbanks, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Michael S. Marley was pulled over for failing to use his turn signal and was ultimately convicted of driving while under the influence. He argues that his traffic stop was illegal and that the district court erred in denying his motion to suppress. Marley challenges the legality of his stop on three grounds. First, he argues that the state trooper did not have probable cause to stop him for failing to use his turn signal because there was evidence the trooper could not have seen him commit this traffic violation. Second, he argues that his failure to use his turn signal did not give the trooper reasonable suspicion to believe he was driving while under the influence. Third, he argues that his traffic stop was an illegal pretext to investigate him for drunk driving. Because none of these claims has merit, we affirm the district court's decision.
AS 28.35.030(a).
Facts and proceedings
On September 15, 2004, at about 1:55 a.m., Alaska State Trooper Albert Bell was driving westbound on Geraghty Avenue in Fairbanks when he saw a driver turn his vehicle on to University Avenue without using his turn signal. Trooper Bell pulled over the driver, Marley, and informed him of the traffic violation. Marley told the trooper that he could not remember if he had used his turn signal. During this contact, Trooper Bell observed that Marley smelled of alcoholic beverages, that his eyes were bloodshot and watery, and that his speech was slurred. Trooper Bell consequently began to investigate Marley for driving while under the influence and ultimately arrested him for that offense. Marley submitted to a breath test, which showed a blood alcohol level of .098 percent.
It is illegal to operate a motor vehicle with a blood alcohol level greater than .08 percent. AS 28.35.030(a)(2).
Marley was charged with misdemeanor driving while under the influence. Before trial, he moved to suppress the evidence of his intoxication, arguing that (1) Trooper Bell had no probable cause to stop him for a traffic violation and (2) Trooper Bell had impermissibly used the traffic violation as a pretext to investigate him for driving while under the influence.
District Court Judge Jane F. Kauvar held a hearing on Marley's motion. At that hearing, Trooper Bell testified to the facts recounted above. Marley presented one witness: David W. Wiebe, a friend of Marley's who was at the Boatel Bar with him that night. Wiebe testified that he saw Marley's truck driving away from the bar on Geraghty Avenue. Wiebe said that as he stood on the steps of the Boatel Bar he saw a patrol vehicle with its lights off pull out of a parking lot adjacent to the bar and turn on to Geraghty Avenue in the direction Marley had traveled. Wiebe called Marley on his cell phone just as the trooper was pulling out of the lot. Based on the distance between the two vehicles, Wiebe estimated that Marley was likely close to the intersection of University and Geraghty when the trooper first turned on to Geraghty Avenue. Given the curve in that road, Wiebe guessed that the trooper could not have had a clear view of the intersection of Geraghty and University at the time Marley made his turn. Wiebe said that from his vantage point on the steps of the Boatel Bar, he could not see if Marley used his turn signal.
Following this testimony, Judge Kauvar visited the scene with the assent of the parties. She concluded from her observations of the scene that, from where Trooper Bell claimed he was at the time Marley made his turn on to University Avenue, Trooper Bell could have seen Marley fail to use his turn signal. Judge Kauvar added that she had no basis for disbelieving Trooper Bell's testimony. She found that if Trooper Bell had been where Wiebe thought he was at the time Marley made the turn, it was "iffy" whether Trooper Bell had a clear enough view of the intersection to see if Marley used his turn signal. But she concluded that Wiebe's testimony was less credible. She reasoned that if Marley had really been as far down the road as Wiebe said he was, Wiebe probably would not have called Marley on his cell phone to warn him that a trooper was pulling out of the lot and heading his way.
Based on these findings, Judge Kauvar denied Marley's motion to suppress the evidence. Marley then entered a Cooksey plea to the charge of driving while under the influence, reserving his right to challenge the denial of his suppression motion.
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Marley appeals.
Trooper Bell had probable cause to stop Marley
Marley argues that Judge Kauvar clearly erred in crediting Trooper Bell's testimony that he saw Marley turn on to University Avenue without using his turn signal. Marley argues that because this factual finding was clearly erroneous, Trooper Bell did not have probable cause to stop him for a traffic violation.
When a claim of error involves an issue of historical fact, "an appellate court must show considerable deference to the trial court's finding," particularly when that finding is based on an assessment of the credibility of witnesses who testify in court. Before finding clear error, we "must be convinced, in a definite and firm way, that a mistake has been committed." We independently determine whether the trial court's factual findings justify a finding of probable cause.
Nelson v. State, 68 P.3d 402, 406 (Alaska App. 2003). See also State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001) ("The trial court's findings of fact will not be disturbed unless they are clearly erroneous.").
Alaska Foods, Inc. v. American Mfr.'s Mut. Ins. Co., 482 P.2d 842, 848 (Alaska 1971).
Id.
State v. Wagar, 79 P.3d 644, 650 (Alaska 2003).
At the evidentiary hearing, Trooper Bell identified approximately where he was on Geraghty Avenue when he observed Marley turn on to University Avenue without signaling. Judge Kauvar found no basis for doubting the credibility of Trooper Bell's testimony. She visited the scene of the stop and independently verified that it was possible for Trooper Bell to see whether Marley used his turn signal from where Trooper Bell claimed his patrol car was located. Judge Kauvar acknowledged that Wiebe's testimony contradicted Trooper Bell's account. Wiebe testified that, based on the relative locations of the two vehicles when he observed them from the steps of the Boatel Bar, he did not believe Trooper Bell could have seen whether Marley used his turn signal. But Wiebe admitted that he could not see the intersection of University and Geraghty and that he "had to guess" or "speculate" about Trooper Bell's location and line of sight. Judge Kauvar found Trooper Bell's testimony more credible, at least in part because she did not believe Wiebe would have called Marley on his cell phone to warn him about the trooper if Marley had been that far down the road. These findings are not clearly erroneous.
Under 13 AAC 02.215(b), a person turning a vehicle on to or off a roadway must signal that turn "continuously during the last 100 feet traveled by the vehicle before turning." Alaska Statute 28.35.225 authorizes law enforcement officers to enforce traffic regulations adopted under Title 28. Because Trooper Bell observed Marley make the turn without signaling, he had probable cause to stop Marley for a violation of the traffic code.
Trooper Bell did not need reasonable suspicion to believe Marley was driving while under the influence
Marley argues that, even assuming he failed to signal his turn on to University Avenue, Trooper Bell did not have reasonable suspicion to stop him for driving while under the influence.
Trooper Bell testified that he pulled Marley over for failing to use his turn signal, not because he had reason to believe Marley was intoxicated. Marley's violation of the traffic code in Trooper Bell's presence provided probable cause to support the traffic stop, and it was not necessary for Trooper Bell also to have reasonable suspicion that Marley was driving while under the influence. Once Trooper Bell contacted Marley and observed that he appeared intoxicated, Trooper Bell was justified in shifting the focus of his investigation to the offense of drunk driving.
See Rodgers v. State, 111 P.3d 358, 359 (Alaska App. 2005); Nease v. State, 105 P.3d 1145, 1147 (Alaska App. 2005).
See Russell v. Anchorage, 706 P.2d 687, 689 (Alaska App. 1985).
Marley has not shown that his stop was an illegal pretext stop
Marley argues that his failure to signal his turn on to University Avenue created no risk to the public because there was no traffic on the road and the night was clear and dry. He argues that these circumstances, combined with the evidence that Trooper Bell subjectively intended to investigate him for drunk driving — that is, the evidence that Bell followed Marley from the bar — showed that Bell had departed from reasonable police practice and impermissibly used his traffic infraction as a pretext to investigate him for driving while under the influence.
This was the only evidence that Trooper Bell subjectively intended to stop Marley for drunk driving. Trooper Bell repeatedly testified that the traffic infraction was his actual motive for pulling Marley over.
We have not yet decided what circumstances, if any, would render a traffic stop an impermissible pretext stop under Alaska law. However, in Nease v. State, we discussed the minimum evidentiary showing a defendant must make to bring his case within the doctrine of pretext stops. Because Marley failed to make that minimum showing, we need not decide whether to adopt the doctrine in this case.
Id. at 1148-49.
In Nease, the defendant argued that his traffic stop was illegal because the police had pulled him over for a malfunctioning brake light as a pretext to investigate him for drunk driving. In rejecting that claim, we explained that even in jurisdictions that adhere to the pretextual stop doctrine, it is irrelevant for Fourth Amendment purposes whether a police officer has an ulterior motive for a stop, unless the defendant also proves that the officer's ulterior motive "prompted the officer to depart from reasonable police practices." In other words, to bring his traffic stop within the doctrine of pretext stops, it was not enough for Nease to offer evidence that the officer subjectively intended to investigate him for drunk driving — he also had to show that the officer's decision to stop him for a broken brake light "represented a departure from reasonable police practice, given the circumstances."
Id. at 1146.
Id. at 1148.
Id. at 1149.
Marley concedes that a motorist's failure to use a turn signal can pose a significant risk to other drivers or pedestrians. He thus implicitly concedes that a trooper would in some circumstances be justified in stopping a driver for this traffic violation. But Marley argues that Trooper Bell's decision to pull him over departed from reasonable police practice because he posed no risk to others under the circumstances of his case. To support this claim, he asserts that it was late at night, that there was no other traffic in the area, and that the roads were clear and dry.
Trooper Bell conceded that Marley's violation was not "so substantial to cause a threat of injury to other people in that area at the time." However, Marley has offered no evidence to suggest that it is reasonable, or normal, police practice to stop motorists for failure to use a turn signal only when that violation poses a substantial threat of injury. Indeed, the only evidence of police practice offered at the hearing was Trooper Bell's testimony that he "pull[s] people over for everything" and "just ticket[s] everybody for any violation that I get on them."
Given this record, we conclude that Marley failed to meet the minimum evidentiary burden required to bring his stop within the doctrine of pretext stops. He has not shown that a trooper stopping a driver for failing to use his turn signal violates reasonable police practice when the violation poses no immediate or substantial risk of injury. Nor is it necessarily bad policy for a trooper to stop a motorist in these circumstances; such a stop might serve as a warning, discouraging the driver from repeating the violation at a riskier time. Furthermore, Marley has offered no evidence to show that Trooper Bell "manipulated the traffic stop . . . by abnormally expanding or extending his contact" with Marley in order to investigate him for driving while under the influence.
Id. at 1150.
Marley asserts that a remand is necessary on the issue of whether his stop was pretextual because Judge Kauvar failed to comply with Criminal Rule 12(d). Rule 12(d) requires a court ruling on a motion to suppress the evidence to "state its essential findings on the record." However, in this case, even if all the facts are viewed in the light most favorable to Marley — that is, even if there had been no traffic, it was a clear, dry night, and Trooper Bell stopped Marley specifically to investigate him for drunk driving — Marley would not have shown that his stop fell within the doctrine of pretext stops. Accordingly, no remand under Rule 12(d) is required.
Conclusion
We AFFIRM the decision of the district court.