Opinion
Court of Appeals No. A-8947.
April 11, 2007.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge., Trial Court No. 4FA-03-2865 Cr.
Marcia E. Holland, Assistant Public Defender, Fairbanks, and Barbara K. Brink and Quinlan Steiner, Public Defenders, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Máuez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
In the early morning of July 31, 2003, two state troopers saw a pickup truck traveling at approximately 70 miles per hour on the Richardson Highway south of Fairbanks. The speed limit on that portion of the highway was 55 miles per hour, and the troopers decided to stop the truck and cite the driver for speeding. The troopers were headed in the opposite direction, so they turned their patrol vehicle around to pursue the truck.
After the troopers turned their vehicle around, but before they activated their overhead lights or siren, the troopers observed the truck leave the highway and turn onto a frontage road. The truck then seemingly disappeared. The troopers surmised that the driver of the truck had taken the vehicle down an embankment and into the woods, down a narrow four-wheeler trail. The troopers likewise drove their vehicle down this trail. At this point, they turned on their overhead lights and their spotlight.
About one hundred yards down the trail, the troopers found the pickup truck parked in the middle of the trail. The truck was darkened; the driver had turned off both its exterior and interior lights.
Two people were in the vehicle: the driver (nineteen-year-old Oleg I. Shapoval) and a passenger (Shapoval's fourteen-year-old sister). The troopers approached the truck and spoke to Shapoval.
When the troopers asked Shapoval why he had driven his vehicle into the woods, Shapoval said that he had pulled onto the trail so that he could stop to look at a map and get directions home. However, as noted above, there were no lights on in the truck. Moreover, Shapoval was not holding a map, and the troopers did not see any map lying in the truck.
At this point, the troopers directed Shapoval to step out of the truck. The troopers asked Shapoval if he had any weapons on his person, and Shapoval answered no. The troopers also asked Shapoval if he had any weapons in his vehicle. Shapoval responded, "Not that I know of." The troopers then asked Shapoval if they could look inside his truck. At this point, Shapoval told the troopers, "You might find a shotgun in the back."
After directing Shapoval's sister to get out of the truck, the troopers looked on the floorboard behind the seats and found a shotgun. They removed the shotgun from the vehicle, inspected it, and discovered that the barrel was unlawfully short.
Based on his possession of the under-length shotgun, Shapoval was convicted of third-degree weapons misconduct under AS 11.61.200(a)(3).
In this appeal, Shapoval contends that the troopers had no right to enter his truck and retrieve the shotgun from the vehicle.
Under the Fourth Amendment, police officers who are performing a traffic stop may conduct a limited search of the vehicle for weapons if the circumstances give the officers reasonable suspicion that the driver or another occupant of the vehicle "is dangerous and . . . may gain immediate control of weapons". Michigan v. Long, 463 U.S. 1032, 1049; 103 S.Ct. 3469, 3481; 77 L.Ed.2d 1201 (1983). The Supreme Court viewed its decision in Long as representing a specialized application of the rule governing investigative stops that was announced in Terry v. Ohio. Quoting Terry, the Supreme Court re-asserted its conclusion that
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
[w]hen [an] officer has a reasonable belief that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it [is] unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and[, if so,] to neutralize the threat of physical harm.
Long, 463 U.S. at 1047, 103 S.Ct. at 3479. See also Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998) (upholding a pat-down search of the driver under the same circumstances).
Quoting Terry, 392 U.S. at 24, 88 S.Ct. at 1881.
In Shapoval's case, the superior court applied the Long test and concluded that, under the facts known to the troopers, the troopers were justified in retrieving the shotgun from Shapoval's truck and taking temporary possession of this weapon.
The superior court noted that, based on Shapoval's statement to the troopers, the troopers had probable cause to believe that there was a firearm in the truck. The superior court further concluded that, under the circumstances, the troopers reasonably suspected that Shapoval might pose a danger to them.
The court found that Shapoval had lied to the troopers about why he drove his truck down the trail into the woods: Shapoval had not driven down the trail so that he could read a map, but rather so that he could avoid detection. The court further noted that Shapoval initially lied to the troopers about whether there was a firearm in his truck.
Given these facts, as well as the time of day (very early morning), the remote location, and (in the superior court's words) Shapoval's unusual willingness to "go to . . . extremes to avoid a speeding ticket", the superior court concluded that the troopers could reasonably suspect that something more was going on, and that Shapoval might pose a present danger to them.
We agree with the superior court that, under the test announced in Michigan v. Long, and under the facts presented here, the state troopers did not violate Shapoval's Fourth Amendment rights when they entered his truck, retrieved the shotgun, and took temporary possession of it during the traffic stop.
Shapoval argues, in the alternative, that we should reject the rule of Michigan v. Long as a matter of state constitutional law.
We acknowledge that the Long decision has received substantial criticism from commentators. See, for example, Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (4th ed. 2004), § 9.6(e), Vol. 4, pp. 679-686. Yet even Professor LaFave concedes that there is nothing objectionable about the underlying premise of Long — the premise that the police should be able to search the passenger compartment of a vehicle for weapons if the officers have the same reasonable suspicion of danger, and the same need for prompt action, that would justify a frisk for weapons under Terry. LaFave, § 9.6(e), Vol. 4, pp. 677-78.
The facts of Shapoval's case do not require us to decide whether, or in what respects, the Alaska Constitution might require a different rule from the one adopted by the United States Supreme Court in Long. In Shapoval's case, the troopers had probable cause to believe that there was a firearm in the passenger compartment of Shapoval's truck. (Shapoval essentially admitted that the weapon was there.) And the troopers reasonably suspected — based on Shapoval's actions, his false statements, and that fact that the encounter was taking place off the highway, in a secluded area of woods — that the situation might be significantly more dangerous than a normal roadside traffic stop for speeding.
We conclude that, even if the Alaska Constitution requires a stricter rule than the one announced in Long, the facts of Shapoval's case would still support the troopers' action of retrieving and taking temporary possession of Shapoval's shotgun.
The judgement of the superior court is AFFIRMED.