Opinion
Court of Appeals No. A-10100.
August 20, 2008.
Appeal from the Distict Court, Third Judicial District, Anchorage, J. Patrick Hanley, Judge, Trial Court No. 3AN-07-5933 CR.
William B. Oberly, The Law Office of William B. Oberly, Anchorage, for the Appellant.
Amy K. Doogan, Assistant Municipal Prosecutor, and James N. Reeves, Municipal Attorney, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
An Anchorage police officer observed Cindy A. Fleck walking along the road not far from where a truck had gone down an embankment and into the trees. The officer decided to see if Fleck was okay, so she pulled up near Fleck and activated her overhead lights and spotlight. As a result of this contact, Fleck was convicted of driving under the influence. Fleck appeals her conviction, arguing that the officer had no legal right to contact her. Having reviewed the record, we agree with the district court that this contact was justified under the community caretaker doctrine. We therefore affirm Fleck's conviction.
Facts and proceedings
Not long after midnight on June 7, 2007, Anchorage Police Officer Kim Trujillo was driving on Johns Road in Anchorage when she saw a woman, later identified as Fleck, walking along the side of the road. Fleck was wearing shorts and was barefoot, even though the night was cool (about fifty-two degrees) and windy. Fleck looked disheveled, with messy hair. Officer Trujillo decided to make sure she was okay. She was concerned Fleck had been involved in some incident or might be running from someone. There were no other vehicles or people around.
As Trujillo made a U-turn, she saw that a white pick-up truck had gone off the road, down an embankment, and into the trees. No one appeared to be in the truck. The truck was about 100 feet from where Fleck was walking. Trujillo had been on Johns Road earlier that night and had not seen the truck. At this point, Trujillo thought Fleck might have been in the truck and might need medical attention.
Trujillo stopped her patrol car near Fleck, turned on her spotlight and overhead lights, and contacted Fleck. She approached Fleck and determined that she did not need medical attention. As soon as she contacted Fleck, she smelled alcohol on her breath. Fleck's speech was slurred and she was having trouble keeping her balance. When Trujillo asked Fleck about the truck, Fleck said the truck was hers and that she had parked it. As a result of this contact, Fleck was arrested for driving under the influence.
Anchorage Municipal Code § 9.28.020.A.
Before trial, Fleck filed a motion to suppress the evidence, arguing that Trujillo did not have reasonable suspicion to stop her. After an evidentiary hearing, District Court Judge J. Patrick Hanley denied the motion, concluding that the stop was justified under the community caretaker doctrine. Fleck then entered a Cooksey plea to operating under the influence, reserving her right to challenge the denial of her motion to suppress. Fleck appeals.
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Was the officer's contact with Fleck legal?
Under the community caretaker doctrine, the police are authorized to conduct what would otherwise amount to an investigatory stop of a person if they are aware of "at least some specific circumstances supporting a reasonable belief" that the person is in need of assistance. To justify a contact on this ground, the Municipality need not show that it was "more probable than not" that the person needed assistance, only "that there was a substantial possibility that police assistance was required."
Ozhuwan v. State, 786 P.2d 918, 922 (Alaska App. 1990); see also Crauthers v. State, 727 P.2d 9, 10-11 (Alaska App. 1986) (citing Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528, 37 L. Ed. 2d 706, 714 (1973)).
Marsh v. State, 838 P.2d 819, 821 (Alaska App. 1992).
Fleck argues that the facts of this case do not satisfy the community caretaker doctrine. She asserts that there was no evidence connecting her with the truck that had gone off the road, that she was not obviously injured, that she was not stumbling, and that she did not ask for help, but rather continued walking when the police car approached.
As noted above, the Municipality did not have to show that Fleck needed police assistance, only that there was a "substantial possibility" police assistance was required. In evaluating this question, we view the facts in the light most favorable to upholding Judge Hanley's ruling. Viewing the facts in that light, we conclude that Judge Hanley did not err in ruling that Officer Trujillo had a reasonable basis to be concerned about Fleck's welfare, even though Fleck was not obviously injured.
Id.
Howell v. State, 115 P.3d 587, 590 (Alaska App. 2005).
To be valid, a welfare stop need not be in response to a request for assistance. In Marsh v. State, we held that a police officer was justified in pulling behind a vehicle and activating his overhead lights because it appeared the vehicle was stalled on the side of the highway. Although the driver had not asked for assistance, it was a cold day and the driver's movements suggested he was trying, unsuccessfully, to start the car. Similarly in Howell v. State, we held that an officer was justified in contacting a man who was slumped over the steering wheel of a vehicle parked in an empty parking lot at three o'clock in the morning. The officer thought the man might have some medical or other problem. The man never asked for help; in fact, when the officer first knocked on his window, he removed the coat he had draped over his head, looked at the officer, then re-covered his head with the coat. The officer continued to knock until Howell rolled down his window. This court upheld the superior court's denial of Howell's motion to suppress, noting that the court could reasonably find that the welfare check was not complete when the man re-covered his head because that conduct did not demonstrate that he was not in need of aid.
Id.
118 P.3d 587.
Id. at 589-90.
Id. at 588.
Id. at 589.
Id.
Id. at 590.
Fleck argues that a higher standard should apply to welfare stops of pedestrians to avoid putting "a chill on all individuals who wish to walk on the streets and roads of this state." But as a general rule, stops of pedestrians are less intrusive than stops of vehicles. We therefore see no reason to impose a higher standard on law enforcement to justify the community caretaker stop of a pedestrian than we have previously imposed to justify the community caretaker stop of individuals in vehicles.
See, e.g., United States v. Mendenhall, 446 U.S. 544, 556-57, 100 S. Ct. 1870, 1878, 64 L. Ed. 2d 497 (1980) ("[S]topping or diverting an automobile in transit, with the attendant opportunity for a visual inspection of areas of the passenger compartment not otherwise observable, is materially more intrusive than a question put to a passing pedestrian, and the fact that the former amounts to a seizure tells very little about the constitutional status of the latter.").
Conclusion
We AFFIRM Fleck's conviction.