Opinion
Court of Appeals No. A-13161 No. 6908
12-02-2020
NATHANIEL JOHN DILLON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Glenda J. Kerry, Law Office of Glenda J. Kerry, Girdwood, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Mackenzie C. Olson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3AN-16-10143 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Brian K. Clark, Judge. Appearances: Glenda J. Kerry, Law Office of Glenda J. Kerry, Girdwood, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Mackenzie C. Olson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge HARBISON.
Nathaniel John Dillon was charged with felony driving under the influence. Prior to trial, Dillon filed a motion to suppress, arguing that the evidence against him was obtained as the result of an invalid traffic stop. After an evidentiary hearing, the trial court denied the motion. Dillon and the State consented to a bench trial, and the trial court subsequently found Dillon guilty as charged.
AS 28.35.030(n).
Dillon now appeals his conviction. He raises two claims with respect to the denial of his suppression motion.
First, Dillon challenges two of the trial court's factual findings. Specifically, Dillon makes two arguments: (1) that the trial court clearly erred when it found that the arresting officer had received specialized training in visual vehicle speed estimations; and (2) that the trial court misconstrued the officer's testimony about speed estimations he made when he practiced during his free time.
We review the denial of a motion to suppress evidence in the light most favorable to upholding the trial court's ruling, and we will not disturb a trial court's factual findings unless they are clearly erroneous. In this case, the trial court's findings are well supported by the record. The officer testified at length about his training, including his successful completion of specific training in visual vehicle speed estimations, as well as individual exercises he used to augment his visual estimation skills. Dillon's arguments that the trial court's findings were erroneous are based on a misreading of the court's findings and the relevant portions of the officer's testimony. We accordingly reject Dillon's challenges to the trial court's factual findings.
See State v. Miller, 207 P.3d 541, 543 (Alaska 2009).
Second, Dillon urges us to hold that visual estimations of speed can never establish probable cause under the United States and Alaska Constitutions.
We assess probable cause for a traffic stop by examining the totality of the circumstances. We agree with Dillon that, in some circumstances, an officer's visual speed estimation alone will not establish probable cause. But Dillon has not cited any authority for the proposition that an officer's visual estimation of speed is per se insufficient, and we are aware of none. To the contrary, numerous courts — including in states that have a constitutional right to privacy similar to Alaska's — have upheld probable cause findings based solely on an officer's visual estimation of speed, especially when a vehicle is traveling "in significant excess of the legal speed limit."
See Van Sandt v. Brown, 944 P.2d 449, 452 (Alaska 1997) (citing Illinois v. Gates, 462 U.S. 213, 231-32 (1983)).
See, e.g., Buening v. State, 814 P.2d 1373, 1376 (Alaska App. 1991) (reversing a conviction for speeding where the trial court relied on improperly authenticated radar calibration records after it found a trooper's visual speed estimation "suspect").
See, e.g., Fla. Const. art. I, § 23 (guaranteeing the right to privacy); State v. Allen, 978 So.2d 254, 255-56 (Fla. App. 2008) (finding probable cause based on an officer's testimony that a vehicle "appeared to be speeding," and that the officer had to drive fifty miles per hour in a twenty-five mile-per-hour zone to overtake the vehicle).
United States v. Sowards, 690 F.3d 583, 591-92 (4th Cir. 2012) (recognizing that "where an officer estimates that a vehicle is traveling in significant excess of the legal speed limit, the speed differential — i.e., the percentage difference between the estimated speed and the legal speed limit — may itself provide sufficient 'indicia of reliability' to support an officer's probable cause determination," but that "where an officer estimates that a vehicle is traveling in only slight excess of the legal speed limit, and particularly where the alleged violation is at a speed differential difficult for the naked eye to discern, an officer's visual speed estimate requires additional indicia of reliability to support probable cause"); see also, e.g., Taylor v. Wimes, 632 N.W.2d 366, 372 (Neb. App. 2001) ("Where the actual speed of the driver's vehicle is not at issue, the officer's estimate that the driver is exceeding the speed limit need not be confirmed with electronic or mechanical speed measurement devices to confer probable cause on the officer to make a stop.").
In finding that the officer had probable cause to believe that Dillon was speeding, the trial court noted,
[T]he speed limit was 25 miles an hour. [The officer] was estimating the vehicle to go 40 miles an hour. I will note [that] I might have a very different analysis if the speed limit's 55 and an officer's telling me that somebody was going 60. . . . [W]hen you get percentagewise that high of a speed, going from 55 to 60 it's kind of a much smaller increment. When you're on the lower side of things with a speed limit of 25 and the officer is telling me that the car was going 40 miles an hour, that is a significant increase from the lower end speed limit. . . . I will also note that I don't have to find probable cause under the law that [Dillon] was going 40 miles an hour. The probable cause is that he was speeding beyond the speed limit which is 25 miles an hour.The trial court also emphasized that the officer had both general and specialized training in vehicle speed estimation — findings that we have already held are not clearly erroneous.
The officer estimated Dillon's speed at forty miles per hour in a twenty-five mile-per-hour zone — "a difference [in speed] that would be discernable to an observant and trained law enforcement officer." The officer's estimate was also corroborated by a second officer who observed Dillon "going faster than the speed limit."
State v. Butts, 269 P.3d 862, 873 (Kan. App. 2012) (finding probable cause based on an officer's visual estimation of a vehicle's speed as forty-five miles per hour in a thirty mile-per-hour zone); see also, e.g., State v. Dunham, 67 A.3d 275, 279 (Vt. 2013) (upholding probable cause determinations in two consolidated appeals where the officers had received specialized training and "the observed speed was significantly higher than the posted speed limit" — i.e., forty-five miles per hour in a thirty mile-per-hour zone and forty miles per hour in a twenty-five mile-per-hour zone, respectively).
Under the totality of the circumstances, we conclude that Dillon's traffic stop was supported by probable cause.
See State v. Miller, 207 P.3d 541, 543-44 (Alaska 2009); Nease v. State, 105 P.3d 1145, 1147-48 (Alaska App. 2005). --------
The judgment of the superior court is AFFIRMED.