Opinion
Court of Appeals No. A-9602.
December 5, 2007.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge, Trial Court No. 4FA-05-2873 CR.
Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Among the issues Frank Steffensen raises in this appeal is his contention that the police stopped him without reasonable suspicion, and that the superior court erred by denying his motion to suppress. Because we cannot resolve this issue without additional findings, we must remand the case to the superior court. Background facts and proceedings
On August 23, 2005, Fairbanks Police Officers John Merrion and Burlyn Rigdon saw a Toyota pickup truck start to turn the wrong way down a one-way street. However, the truck stopped, corrected itself, and drove away in the proper direction. The officers were on their way to a higher priority call, and took no action regarding the truck.
About thirty minutes later, the officers saw the same truck parked in a parking lot. The officers pulled into the parking lot and stopped their patrol car near the truck. The officers did not turn on the patrol car's emergency lights or siren. Officer Merrion walked up to the driver's side of the truck and Officer Rigdon walked up to the passenger side.
Officer Merrion told the driver, Steffensen, that the officers had been driving by him a short time ago and "saw him almost drive up the one-way street." During the contact with Steffensen, Officer Merrion asked Steffensen for identification, the registration for the truck, and proof of insurance. Officer Merrion noticed that Steffensen was fumbling with his wallet, had a hard time getting his license out, and avoided making eye contact. Officer Merrion testified that he had a lengthy conversation with Steffensen about whether he had insurance on the pickup. Steffensen was unable to provide proof of insurance. Merrion agreed that the discussion on insurance occurred long before he decided to ask Steffensen to perform field sobriety tests.
At some point in the dialogue, Officer Merrion suspected Steffensen was under the influence, because Steffensen was not making eye contact and his speech was "kind of slurred." Officer Merrion asked him to step out of the vehicle to perform field sobriety tests. Steffensen agreed to perform the tests, and his performance did not provide cause to arrest him for driving under the influence. Even so, Officer Merrion administered a portable breath test that indicated no alcohol. Steffensen consented to a search of his person, during which Officer Merrion did not find any contraband, but did find approximately $400 in cash.
See Leslie v. State, 711 P.2d 575, 577 (Alaska App. 1986) (construing AS 28.35.031(b)).
Officer Merrion asked if he could search the vehicle, and Steffensen declined. Officer Merrion issued Steffensen a citation for not having proof of insurance, and told him he was free to go. However, Steffensen could not drive the truck away from the parking lot because he did not have proof of insurance.
While Officer Merrion was contacting Steffensen, Officer Rigdon was on the other side of the vehicle contacting the passengers. Officer Rigdon recognized the passengers, Lisa Lozano and Roberta Titus, from prior contacts. Officer Rigdon told the passengers to remain in the vehicle and keep their hands visible, and called for backup. Officer Rigdon testified that he called for backup because his prior contacts with the passengers had involved drugs. Officers Stewart Lewis and Ron Dupee responded to the call.
The officers called the passengers' names in to dispatch and learned that Titus was on probation. As a condition of her probation, she was subject to warrantless searches of any vehicle in which she was riding. Officer Dupee contacted Titus's probation officer, who advised him to search Titus and the vehicle in which she was found. The officers asked Titus and Lozano to step out of the vehicle, and they did so. The officers searched the truck. They found a small baggie containing crack cocaine on the floorboard near the driver's seat and two glass pipes commonly associated with smoking crack cocaine on the middle seat where Titus had been seated.
The officers arrested Titus and Steffensen. When Officer Merrion searched Steffensen incident to his arrest, he found several baggies of cocaine in Steffensen's pockets.
The grand jury indicted Steffensen on two counts of third-degree misconduct involving a controlled substance.
AS 11.71.030(a)(1).
Steffensen moved to suppress the evidence found as a result of the search of his vehicle and the search of his person incident to his arrest. Steffensen argued that his initial contact with Officer Merrion was an unlawful stop, and that the search of his truck was unlawful because he had not consented to the search.
Judge Wood held an evidentiary hearing and subsequently denied the motion to suppress. Judge Wood ruled that the officers' actions in initially approaching the vehicle did not constitute an investigative stop because "a reasonable person in Steffensen's situation would have felt free to leave." He also concluded that the officers were justified in searching Steffensen's truck based on Titus's probation condition, despite Steffensen's refusal to consent to the search.
Steffensen entered a Cooksey plea, pleading no contest to one count of fourth-degree misconduct involving a controlled substance. Steffensen agreed to a presumptive term of 3 years' imprisonment and preserved his suppression issues for appeal. Judge Wood accepted the plea and sentenced Steffensen to 3 years to serve. Discussion
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
AS 11.71.040(a)(3)(A).
Steffensen advances several reasons why the evidence gained as a result of the search of his car and his person should have been suppressed. First, Steffensen contends that the officers conducted an investigatory stop that was not justified by reasonable suspicion.
Whether an investigatory stop is supported by reasonable suspicion is a mixed question of law and fact: we accept the trial court's findings of historical fact unless we are convinced they are clearly erroneous. We independently review whether the facts establish reasonable suspicion.
LeMense v. State, 754 P.2d 268, 272-73 (Alaska App. 1988).
Steffensen concedes that after Officer Merrion approached the vehicle and had been talking to Steffensen long enough to conclude that his speech was "kind of slurred," he had reasonable suspicion to detain Steffensen to perform field sobriety tests.
Police are entitled to seize a person for an investigatory stop if they have reasonable suspicion that imminent public danger exists or that serious harm to persons or property has recently occurred. However, "[n]ot every contact between a police officer and a private citizen rises to the level of an investigative stop." A person is seized "only if a reasonable person in his or her position would not feel free to leave."
Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).
State v. Garcia, 752 P.2d 478, 480 (Alaska App. 1988).
LeMense, 754 P.2d at 272.
Steffensen argues that the totality of the circumstances indicate that a person in Steffensen's situation would not feel free to leave. In response, the State argues that the officers' actions did not constitute a seizure because a reasonable person in Steffensen's situation would feel free to leave.
Steffensen notes that uniformed police officers approached the truck on foot from both sides of the vehicle. He points out that Officer Rigdon asked the passengers to keep their hands visible and remain in the vehicle, and called for backup. He observes that when Officer Merrion approached Steffensen, he began his contact by mentioning the prior possible traffic violation. He emphasizes Officer Rigdon's testimony that if Steffensen had tried to leave the scene, the officers would likely have stopped him. He argues that under these circumstances, a reasonable person would not have felt free to refuse contact with the officers.
The State points to two contrasting cases, both involving situations in which police officers approached a person in a parked car. First, in Ozhuwan v. State, a police officer saw two parked cars in a parking lot that was frequently used by minors to consume alcohol. The police officer drove his patrol car to within approximately ten yards of the parked cars, positioned his car between the parked cars and the exit to the parking lot, and turned on his high beams and emergency lights. The officer walked to the passenger side of one of the cars and shined his flashlight inside. This court held that these actions constituted an investigatory stop because "a reasonable person lawfully parked in a public area at night would hardly feel free to leave when suddenly confronted — as Ozhuwan was — by a police patrol vehicle partially blocking the only exit to the area, with its high beam lights on and its overhead red lights activated."
786 P.2d 918 (Alaska App. 1990).
Id. at 920.
Id.
Id.
Id.
Next, in Barrows v. State, an officer observed a van legally parked on a public but somewhat remote road, in a location where the officer had previously known persons to use drugs and discharge firearms. The officer stopped his patrol car about twenty feet from the van and approached on foot. When he reached the vehicle, he observed a man and a woman in the car. The officer "asked the couple `how [they were] doing,' and he asked the woman her name, which she provided." The officer then "asked Barrows `if he'd mind' showing identification," and when Barrows stated that he did not have any identification, the officer asked Barrows for his name, which he provided. This Court concluded that:
814 P.2d 1376 (Alaska App. 1991).
Id. at 1377.
Id.
Id.
Id.
Id.
Barrows was not "seized" when [Officer] Villalobos approached his van, questioned him briefly, and requested identification. The encounter between Villalobos and Barrows took place on a public road. Villalobos did not activate his overhead lights or otherwise instruct Barrows to stop; he did not position his vehicle so as to block Barrows's departure. Villalobos merely approached the van, which was already parked on the side of the road, and put questions to Barrows and his companion in a conversational manner. Villalobos did not display a weapon or make any threatening remarks or gestures. Villalobos's request that Barrows identify himself was not accompanied by any threat or promise of official retaliation if he refused.
A reasonable person in Barrows's position would have felt free to refuse to comply with this request.
Id. at 1379.
The State argues that this case is "virtually identical" to Barrows. Here, the police officers did not block Steffensen's car from exiting the parking lot or turn on their emergency lights, as the officers did in Ozhuwan. However, unlike in Barrows, Officer Merrion's first verbal contact with Steffensen did not merely consist of a "conversational" request for identification, but included Officer Merrion's mention of the potential traffic violation he and Officer Rigdon had recently observed. Steffensen also points out that in this case, unlike Barrows or Ozhuwan, two officers approached Steffensen's vehicle, one on each side.
Professor LaFave finds these factors (namely the nature or tenor of a request for identification, whether the vehicle is boxed in, and an approach on multiple sides of the car by multiple officers) relevant in a determination of whether an officer's approach of a parked car constitutes a seizure.
4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.4(a) at 433-35 (4th ed. 2004).
Here, the police began the contact with Steffensen by mentioning Steffensen's potential driving infraction, followed later by a demand for his identification, registration, and proof of insurance. In the circumstances of the case, we conclude that a reasonable person would view the officer's demand for identification, the registration of the vehicle, and proof of insurance as a show of authority that the person could not properly refuse and feel free to leave.
See Rogers-Dwight v. State, 899 P.2d 1389, 1390 (Alaska App. 1995) ( quoting Florida v. Royer, 460 U.S. 491, 502, 103 S. Ct. 1319, 1326, 75 L. Ed. 2d 229 (1983)).
But it is not clear from Judge Wood's findings at what point Officer Merrion demanded Steffensen's license, registration, and proof of insurance relative to when he observed the factors that led him to suspect that Steffensen might be under the influence. Accordingly, we must direct the superior court to enter additional findings specifying when Officer Merrion demanded Steffensen's license, registration, and proof of insurance relative to when Officer Merrion learned the factors that led him to suspect that Steffensen might be under the influence.
Because we must remand the case for additional findings, we will defer considering Steffensen's other arguments.
Conclusion
We REMAND the case for additional findings. The superior court shall transmit its findings to this court within 90 days. The parties shall have 25 days after the superior court transmits its findings to file simultaneous memoranda addressing the superior court's findings.