Summary
holding that the district court did not err in denying driver's Miranda claim when driver failed to present any evidence showing that he was detained under circumstances substantially more coercive than a typical traffic stop
Summary of this case from Butler v. StateOpinion
Court of Appeals No. A-10345.
March 17, 2010.
Appeal from the District Court, Third Judicial District, Anchorage, Richard W. Postma Jr., Judge, Trial Court No. 3AN-07-5211 CR.
Rex Lamont Butler, Rex Lamont Butler and Associates, Inc., P.C., Anchorage, for the Appellant. Hanley Rebecca Smith, Assistant Municipal Prosecutor, and Rhonda Fehler Westover, Acting Municipal Attorney, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Isaac Murphy III was convicted of operating a motor vehicle under the influence of alcohol (OUI). On appeal, he challenges the district court's denial of his motion to suppress evidence. He claims that police had no justification for the investigative stop, nor probable cause for the OUI arrest. He further claims that police failed to inform him of his Miranda rights, coerced his consent when asking him to perform field sobriety tests, and failed to make a recording of the conversation that occurred during the investigative stop. He also asserts that the investigative stop was a pretext stop. For the reasons explained here, we uphold the decision of the district court.
Anchorage Municipal Code (AMC) 9.28.020.
Facts and Proceedings
On May 18, 2007, Anchorage Police Officer Gregory Ty Witte contacted Murphy in downtown Anchorage, at the intersection of Fourth Avenue and F Street. Witte was patrolling the area on foot that day. He was less than a block away from the Fourth Avenue and F Street intersection when he saw Murphy standing in the street and heard him yelling at the driver of a vehicle who had stopped for a red light. Witte could see another vehicle in the line of traffic that was unattended with its door open. When the traffic light cycled to green, the other driver left, and Murphy returned to the unattended vehicle. After Murphy returned to his vehicle, and as he started to drive away, Witte and another officer stopped him.
Witte stopped Murphy to investigate the disturbance and because Murphy had violated traffic laws. According to Witte, Murphy committed disorderly conduct by approaching and yelling at another driver in the middle of traffic because this conduct created a hazardous condition for other people in the area. Witte also explained that it is unlawful to leave a vehicle unattended in the roadway with the engine running.
See AMC 8.30.120.A.7 (a person commits the crime of disorderly conduct if the person knowingly or recklessly creates a hazardous condition for others); see also AMC 8.30.120.A.6 (a person commits the crime of disorderly conduct if the person knowingly challenges another to fight, or engages in fighting, other than in self-defense).
See 13 Alaska Administrative Code 02.480 ("No person driving or in charge of a motor vehicle may permit it to stand unattended by an adult person without first stopping the engine . . . [and] removing the key from the ignition. . . ."); see also AMC 9.30.040 ("No person may park any vehicle upon a street other than an alley in such a manner or under such conditions as to leave available less than ten feet from the center of the roadway for free movement of vehicular traffic.").
When Witte contacted Murphy, he asked Murphy about the confrontation in the street. Murphy said he had been a "DJ" at a nearby concert at the Performing Arts Center (PAC) and the person he had just confronted had, earlier in the day at the PAC, punched him in the face. Murphy said that he was in the in the street challenging the other driver to fight.
Witte noticed that Murphy had an odor of alcohol when he spoke. He asked Murphy to perform some field sobriety tests. M urphy did so, and his performance on these tests convinced Witte that Murphy was under the influence. Witte also indicated that in his experience working downtown, it is not unusual to find intoxicated people involved when someone is yelling at another in the middle of the street. Ultimately, Witte arrested Murphy for OUI.
Prior to trial, Murphy moved to suppress evidence, arguing that the stop was unlawful because Witte had no justification for investigating Murphy for OUI. District Court Judge Richard W. Postma Jr. held an evidentiary hearing to resolve this motion.
Both Witte and Murphy testified at the hearing. Witte's testimony is set out in the preceding paragraphs. Murphy testified that after Witte initially contacted him, he asked Murphy if he had been drinking. When Murphy said that he had had a few drinks earlier, Witte asked Murphy to do the field sobriety tests. According to Murphy, Witte said that if he didn't do the tests, Witte would arrest him for OUI.
During the hearing, Murphy raised two new issues — whether there had been a Miranda violation and whether he had been unlawfully coerced into doing field sobriety tests.
Judge Postma found that under the circumstances, Witte had reasonable suspicion to conduct an investigatory stop. He also found that once Witte contacted Murphy, there was sufficient evidence to shift his investigation to determine if Murphy was operating under the influence. But Judge Postma declined to rule on the two new issues Murphy raised during the hearing — whether Miranda was violated and whether Murphy was coerced into consenting to perform the field sobriety tests. He told Murphy that if he wanted to pursue those issues, he would have to file an additional motion.
Afterwards, Murphy moved for reconsideration, claiming that his Miranda rights were violated and that police coerced his consent to perform field sobriety tests. He also filed a supplemental brief, arguing that his oral admissions should be suppressed and the case dismissed because of the Miranda violation. There was no additional hearing, and Judge Postma issued a written order rejecting these arguments; he reiterated his initial decision that the stop was lawful and that the investigation of a possible OUI was justified. At a bench trial, Murphy was later convicted of operating under the influence based on stipulated facts. Murphy appeals.
The Stop Was Justified by Reasonable Suspicion
Murphy contends that Witte contacted him unlawfully and that the stop was pretextual. Judge Postma disagreed, finding that Witte had "reasonable, specific and articulable reasons" to conduct an investigative stop. Judge Postma found that Witte "observed Murphy in the street challenging another driver, who was stopped at a red light, to get out and fight." Judge Postma also found that Witte was justified in initiating an investigatory stop to look into the reasons for the verbal altercation. Finally, Judge Postma found that under the totality of circumstances, Murphy's actions recklessly created a hazardous condition for others, endangering the public and the driver in the other vehicle. He concluded that the investigative stop was justified by reasonable suspicion.
A police officer is authorized to make an investigative stop when the officer has a reasonable suspicion that an imminent public danger exists or that serious harm to persons or property has recently occurred and that the individual presents that danger or has caused that harm. The supreme court recently reiterated this requirement in State v. Miller and explained how courts must evaluate whether a specific stop was legal.
Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).
207 P.3d 541 (Alaska 2009).
To satisfy the reasonable suspicion requirement, police must have "some minimal level of objective justification for making the stop." This "objective justification must be `something more than an inchoate and unparticularized suspicion or hunch.'" The police must be able to point to specific and articulable facts that, under the totality of the circumstances known to the police and in light of their experience, support making the stop.
Id. at 544 (citation omitted).
Id. (citation omitted).
Id. (citation omitted).
When evaluating whether a specific stop was legal, Alaska courts apply a balancing test. "The degree of threat to the public safety and the imminence of that threat (or the seriousness of an already committed crime and the recency of the crime) must be weighed against the strength of the officer's reasonable suspicion and the intrusiveness of the stop." "A minimally intrusive stop based on solid information indicating that a crime is actually in progress or has just been completed may be justified under Coleman even when the crime itself is not a felony and involves harm that in other contexts might not seem particularly serious."
Id. (citing State v. G.B., 769 P.2d 452, 455-56 (Alaska App. 1989)).
Id. (citation omitted).
Id. (citation omitted).
Based on the circumstances in this case, Witte had reasonable suspicion to conduct an investigative stop to determine if Murphy was committing disorderly conduct (by challenging another to fight or by creating a hazardous condition for others) or probable cause to investigate a traffic offense (leaving his vehicle unattended in the roadway). Accordingly, we find no error.
The Investigative Stop Was Not Pretextual
Murphy also makes a cursory claim that the stop was pretextual and that Witte used the investigation into the disorderly conduct as a pretext to investigate whether Murphy was operating under the influence. Murphy arguably raised this claim in his district court pleadings — in a footnote in his first pleading he stated that his case was a "classic example" of a pretextual stop, and he addressed the issue more fully in his response to the Municipality's opposition. But Judge Postma did not rule on this claim, and Murphy proceeded to trial without demanding a ruling. We have consistently held that a defendant who does not demand a ruling from the trial court waives any potential claim of error.
Mahan v. State, 51 P.3d 962, 966 (Alaska App. 2002) (citing Marino v. State, 934 P.2d 1321, 1327 (Alaska App. 1997); Erickson v. State, 824 P.2d 725, 733 (Alaska App. 1991); Jonas v. State, 773 P.2d 960, 963 (Alaska App. 1989)).
Nor has Murphy shown that plain error occurred. Murphy did not in the district court, nor does he in this appeal, discuss the Alaska case law that explains when, if ever, an otherwise lawful stop would be a pretext stop. In a series of decisions, we have held that the fact that a police officer may have an ulterior motive for enforcing a particular law is irrelevant for fourth amendment purposes — even under the doctrine of pretext stops — unless the defendant proves that this ulterior motive prompted the officer to depart from reasonable police practices. Murphy offered no evidence that Witte departed from reasonable police practices when he contacted Murphy to determine why he was stopped in the street yelling at another driver. Accordingly, we find no error.
Morgan v. State, 162 P.3d 636, 638 (Alaska App. 2007); Bessette v. State, 145 P.3d 592, 595 (Alaska App. 2006); Grohs v. State, 118 P.3d 1080, 1081-82 (Alaska App. 2005); Nease v. State, 105 P.3d 1145, 1148-49 (Alaska App. 2005).
Witte Had Probable Cause for the OUI Arrest
Relying on Brown v. State, Murphy next claims that Witte unlawfully obtained probable cause for the OUI arrest because once he contacted Murphy, he improperly shifted his investigation from the initial disturbance and traffic offense to an OUI investigation. Murphy argues that Brown prohibits police from requesting consent to a search that is not reasonably related to the original reasons for the investigatory stop. In the district court, Murphy, in his motion for reconsideration, asserted that Witte's request that Murphy perform field sobriety tests amounted to the type of request prohibited in Brown.
182 P.3d 624 (Alaska App. 2008).
Judge Postma rejected this claim. He found that by the time Witte requested that Murphy perform field sobriety tests this request was reasonably related to the reason for the investigation and that Murphy knew why police were asking him to perform field sobriety tests. Judge Postma had already found that police had reasonable suspicion to contact Murphy and to investigate the possibility that he was operating under the influence.
In Brown, this court discussed a rule that would limit the authority of the police to ask motorists to consent to searches during typical traffic stops. Under this proposed rule, the police would be prohibited from asking motorists to consent to a search of their person, their vehicle, or their belongings if the proposed search was "unrelated to the basis for the stop and . . . not otherwise supported by a reasonable suspicion of criminality." The facts of Brown did not require us to decide whether to adopt this rule for all traffic stops.
Id. at 626.
In his brief to this court, Murphy misinterprets Brown by asserting that we did adopt this general restriction on police authority during traffic stops, and he then argues that Witte violated this restriction w hen he asked Murphy to perform field sobriety tests. But even if the rule we discussed in Brown applied to Murphy's case, the police conduct at issue here would be lawful. By the time Witte asked Murphy to perform the field sobriety tests, Witte had a reasonable suspicion that Murphy was in control of a motor vehicle and was under the influence. Even though this may not have been Witte's original reason for contacting Murphy, we have repeatedly upheld OUI investigations when the reasonable suspicion for the investigation arose during a stop that was initiated for different reasons.
See, e.g., Russell v. Anchorage, 706 P.2d 687, 689 (Alaska App. 1985); Romo v. Anchorage, 697 P.2d 1065, 1068 (Alaska App. 1985).
Consequently, because Witte had reasonable suspicion that Murphy was operating under the influence, he was authorized to have Murphy perform field sobriety tests. Murphy's performance on the field sobriety tests, combined with Witte's initial observations, gave Witte probable cause to arrest Murphy for OUI. We find no error. Murphy Was Not Coerced into Performing the Field Sobriety Tests
In a related claim, Murphy asserts that he did not consent to perform the field sobriety tests. He contends that he only performed them because Witte threatened to arrest him for refusal if he did not. He argues that because the field sobriety tests were unlawfully coerced, they should have been suppressed. But Judge Postma expressly found that Murphy's testimony on this issue was not credible and that Witte did not threaten to arrest Murphy if Murphy refused to perform the field sobriety tests. In other words, Judge Postma found that Murphy's consent was not coerced. Although Murphy disagrees with Judge Postma's findings, he does not show that the findings were clearly erroneous.
Murphy Did Not Establish a Miranda Violation
Murphy claims that Witte was required to inform him of his Miranda rights during the investigative stop. Judge Postma rejected this claim, finding that Miranda was not required in the type of investigative stop Witte conducted. Judge Postma also found that Murphy had not presented any evidence suggesting that he had been subjected to custodial interrogation prior to the time he was informed of his Miranda rights.
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 602, 16 L. Ed. 2d 694 (1966).
Judge Postma also found that Murphy had not presented any evidence suggesting that he had made any statements as a result of custodial interrogation. Nor did Murphy present any evidence showing that he was detained under circumstances substantially more coercive than the typical traffic stop. We conclude that Judge Postma did not err when he rejected Murphy's Miranda claim.
Additionally, with regard to this issue, the stipulation of facts filed by the parties for the purpose of the bench trial contains no references to any statements made by Murphy. Hence, it appears that even if Miranda had been violated, any error was harmless because even if Murphy's statements had been suppressed, the State still would have prevailed at trial. And we have already concluded — without reference to any statements — that the police had sufficient evidence supporting both the initial contact with Murphy and the subsequent OUI investigation.
As part of his Miranda claim, Murphy — in a single sentence — asserts that "[t]he failure to make a recording [of the conversation] implicates [his] confrontation rights under the [federal and state constitutions]." In other words, Murphy is claiming that the police in his case violated the rule set out in Stephan v. State — that police interviews with suspects should be tape recorded in their entirety.
711 P.2d 1156 (Alaska 1985).
Id. at 1157-58.
Murphy did not raise this as an issue in his district court pleadings, nor does he argue on appeal that plain error occurred. We also note Stephen only applies to custodial interviews that occur in a place of detention. But more importantly, Murphy does not point to any evidence supporting his claim. We decline to address this claim because he has not shown that any error occurred.
Id. at 1158.
Conclusion
The district court's judgment is AFFIRMED.