Opinion
Court of Appeals No. A-9837.
June 25, 2008.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Niesje J. Steinkruger, Judge. Trial Court No. 4FA-05-3692 CR.
Margi Mock, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
W. H. Hawley, 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
Shortly after 3:30 a.m. on October 20, 2005, Alaska State Trooper Shayne Calt walked up to a parked car in which Carl Ayers Jr. was sitting and started talking with Ayers. During this contact Ayers consented to have his car searched by a drug-sniffing dog. The dog alerted to a substance in Ayers's car, which proved to be cocaine, and Ayers was indicted for fourth-degree misconduct involving a controlled substance.
AS 11.71.040(a)(3)(A).
Ayers filed a motion to suppress the cocaine, in which he argued that he had been subjected to an unlawful investigative stop. The superior court concluded that Ayers was not seized for Fourth Amendment purposes until after the discovery of the cocaine, and the court therefore denied Ayers's suppression motion. Following the superior court's decision, Ayers entered a plea of no contest, preserving his right to appeal the superior court's ruling on the suppression motion.
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974) (allowing a defendant to plead no contest to a criminal charge but still preserve the right to pursue a dispositive claim on appeal).
We conclude that, under the facts of this case, the issue preserved by Ayers is not dispositive of this prosecution. The issue preserved was whether the superior court was correct in ruling that Ayers was never subjected to a Fourth Amendment seizure during his interaction with the troopers. But even if we agreed with Ayers that he was subjected to an investigative stop, we might then conclude that the stop was justified. Moreover, even if we concluded that the stop was unjustified, we might nevertheless conclude that Ayers's later consent to the search of his car was knowing, voluntary, and untainted by the preceding illegal stop. Accordingly, we dismiss this appeal for lack of jurisdiction. And because Ayers has not obtained the benefit of his Cooksey plea, he is now entitled to withdraw his plea.
Background facts
Trooper Calt was driving northbound on South Cushman Street in Fairbanks when Ayers turned northbound onto South Cushman from 16th Avenue in front of Calt's patrol car. As Calt got closer, Ayers took the next available right onto 15th Avenue, and Calt followed.
Calt's practice was to follow vehicles that appeared to turn off the road when the driver saw his patrol vehicle because o f the potential that the driver was trying to avoid the police due to intoxication or possession of drugs or because there was an outstanding warrant for the driver's arrest.
From 15th Avenue, Ayers took the first available right turn onto Lacey Street. Calt drove past Lacey, took a right turn, and then turned right again onto 16th Avenue. From 16th, Calt could see Ayers parked on Lacey Street between 15th and 16th Avenue. He stopped a couple of hundred feet away from Ayers and watched. Minutes later, Calt turned on his video recorder and parked behind and to the right of Ayers without blocking him in. He did not activate any emergency lights or turn on his spotlight.
Calt walked up to the car and started talking with Ayers. Ayers provided his driver's license on Calt's request. Calt asked Ayers about his car's seasonal registration tags. Ayers said that he had recently purchased the car. Calt asked for Ayers's vehicle registration. Ayers said that it was at home on his dresser. Ayers explained that he had removed all paperwork from the car's glove box the day before. He also admitted that the car was not insured.
Calt asked Ayers where he was coming from, if he was employed, where he worked, and why he had parked his car. Ayers replied that he had just come from 24th Avenue where he had dropped someone off. He told Trooper Calt that he was parked because he was waiting for a friend to pick him up. Calt again asked whether Ayers had any paperwork that would verify that he owned the car. Ayers said he did not.
Calt then told Ayers to "hold on for just a second" and apparently took Ayers's license to his patrol car to run a warrant check. There were no warrants for Ayers's arrest, but there w as a "locate" for Ayers because the Fairbanks city police wanted to talk to him about an unrelated theft case. Calt informed the Fairbanks police and called for Trooper Mobley and his drug detection dog.
Calt returned to Ayers's car and asked him if he had any weapons and if he would submit to a pat down search for weapons. Ayers agreed to the search. Calt then asked Ayers if he could search his vehicle for weapons. Again, Ayers agreed and, at Calt's request, stood in front of Calt's vehicle while Calt searched Ayers's car. While this search occurred, Trooper Adams — who had arrived to give back up — gave Ayers a horizontal nystagmus test, which showed no signs of intoxication.
During his search, Calt discovered that the glove box in Ayers's car was locked. Ayers said he did not have the key to unlock it. Calt also found a half-full open container of beer, which he allowed Ayers to empty. After completing his search, Calt returned Ayers's license and told him that the Fairbanks police wanted to speak with him. He asked Ayers if he would mind waiting in his car until they arrived. Ayers returned to his car and waited.
The Fairbanks police and Trooper Mobley and his dog arrived about the same time. Trooper Mobley asked Ayers if he could search the car using the dog, and Ayers agreed. The dog alerted to the odor of narcotics in the back seat of Ayers's car as well as to the glove box. Trooper Mobley found a rock of crack cocaine on the rear floorboard on the passenger side. Mobley then removed the locking mechanism on the glove compartment. In it, he found a glass crack pipe with residue, a small wooden box that contained rocks of crack cocaine, and a glass cigar tube and small plasic bag, both with residue inside that appeared to be crack cocaine. Mobley also found a clear container containing several grams of white powder that appeared to be baking soda. The police advised Ayers of his Miranda rights and arrested and pat-searched him. They found the key to the glove box in Ayers's pocket. Ayers admitted that the drugs in his car belonged to him.
Proceedings in the superior court
As we explained at the beginning of this opinion, Ayers filed a motion to suppress the evidence against him, claiming that it was the fruit of an unlawful investigative stop. Ayers argued that Trooper Calt had no basis to ask for his identification and vehicle registration, either to investigate a crime o r to perform a community caretaker stop. Ayers further argued that, even if the initial stages of the encounter did not amount to a Fourth Amendment seizure, the encounter developed into an investigative stop by the time Ayers was surrounded by four law enforcement officers. He argued that, under the totality of the circumstances, a reasonable person in his position would not have felt free to leave.
See Ozhuwan v. State, 786 P.2d 918, 922 (Alaska App. 1990) (discussing the parameters of a community caretaker stop).
Superior Court Judge Niesje J. Steinkruger rejected Ayers's argument that he had been subjected to a Fourth Amendment seizure. She concluded that a reasonable person in Ayers's position would have felt free to leave up until the time Ayers was arrested. Accordingly, Judge Steinkruger denied the suppression motion.
Ayers then reached a plea agreement with the State that called for him to plead no contest to the drug charge and to receive a sentence of 3 years with 1 year suspended, while at the same time preserving his right to appeal Judge Steinkruger's ruling on the suppression motion. But there is not written record of the precise issue preserved for appeal by Ayers's Cooksey plea
At the time Ayers entered his plea, this Court had not yet issued its decision in Dow v. State, where we held that Cooksey pleas must be in writing — a requirement primarily designed to ensure that the parties agree on exactly what is preserved for appeal, and to ensure that this Court can determine whether the preserved issue is dispositive of the case.
155 P.3d 352 (Alaska App. 2007).
Id. at 355.
However, the electronic record indicates that the only issue preserved for appeal was whether the encounter between Ayers and the troopers w as a seizure for Fourth Amendment purposes.
Why we conclude that we lack jurisdiction to decide Ayers's appeal
In Oveson v. Anchorage, the Alaska Supreme Court held that an appellate court lacks jurisdiction to reach the merits of an appeal following a Cooksey plea unless the issue preserved for appeal is dispositive of the case. Moreover, the appellate court must independently assess whether the preserved issue is dispositive.
574 P.2d 801 (Alaska 1978).
Id. at 803 n. 4.
E.g., Miles v. State, 825 P.2d 904, 905 (Alaska App. 1992).
In Ayers's case, the admissibility of the cocaine found in his car is obviously dispositive of the drug charge. But the precise issue preserved for appeal — i.e., the issue of whether Ayers was ever subjected to a Fourth Amendment seizure before the dog found the cocaine — is not dispositive of whether the cocaine is admissible.
Even if we agreed with Ayers that he was subjected to an investigative stop, we might then conclude that the stop was justified. Indeed, the State devotes essentially half of its brief in this case to the argument that justification for an investigative stop — even a full-blown arrest — existed shortly after the encounter began, when Ayers admitted to Trooper Calt that (1) he was not carrying the registration for the vehicle and that (2) he had no motor vehicle insurance.
Moreover, even if we concluded that the investigative stop was not justified, we might nevertheless conclude that Ayers's later consent to the search of his car was knowing, voluntary, and untainted by the preceding illegal stop. There was a plausible break in the action after Ayers passed the field sobriety tests and Calt returned his driver's license to him. This hiatus conceivably insulated the events that follow ed — in particular, Ayers's decision to wait for the other officers to arrive, and then to allow the drug-detection dog to search his car — from the arguable illegality that preceded them.
Accordingly, we conclude that the question of whether an investigative stop occurred is not dispositive of the case against Ayers, and we therefore must dismiss this appeal for lack of jurisdiction.
Because Ayers has not obtained the benefit of his Cooksey plea, he is now entitled to withdraw his plea.
Conclusion
This appeal is DISMISSED. When this case returns to the superior court, Ayers is entitled to withdraw his plea.