Opinion
Court of Appeals No. A-9602.
December 3, 2008.
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
We remanded this case for additional findings from the superior court to resolve an essential issue: Did the police have reasonable suspicion to support an investigatory stop? Based on the superior court's findings, we conclude that the police did not. Accordingly, we reverse the superior court's order denying the motion to suppress.
Background facts and proceedings
On August 23, 2005, two Fairbanks police officers, John Merrion and Burlyn Rigdon, saw a Toyota pickup truck start to turn the wrong way down a one-way street before the truck stopped 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 parked nearby. 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, Frank Steffensen, that the officers had been driving by him a short time ago and "saw him almost drive up the one-way street." After telling Steffensen about this potential infraction, Merrion told Steffensen that he wanted to see his driver's license. According to Merrion, Steffensen "was kind of fumbling in his wallet, having a hard time getting his license out" while keeping his head down and not making eye contact. At this point, Merrion thought there was a possibility that Steffensen was impaired, and wanted to investigate further.
Officer Merrion told Steffensen he wanted to see the truck's registration and his proof of insurance. Steffensen did not have proof of insurance and that deficiency caused a "lengthy" conversation between the two. During this conversation, Merrion perceived that Steffensen's speech was "kind of slurred."
After the dialogue over the insurance, Officer Merrion asked Steffensen to get out of the truck and asked him to perform field sobriety tests. Steffensen performed the tests, and Merrion ultimately concluded that he did not have a basis to arrest Steffensen for driving under the influence. Even so, Officer Merrion administered a portable breath test that indicated no alcohol.
Cf. Leslie v. State, 711 P.2d 575, 577 (Alaska App. 1986) (holding that statutorily authorized breath tests were constitutional and construing AS 28.35.031(b)).
While the contact between Steffensen and Merrion progressed, Officer Rigdon contacted the passengers. That contact ultimately led Rigdon to search the truck and find a small baggie of crack cocaine and two glass pipes commonly associated with smoking crack cocaine. After discovering this evidence, the officers arrested Steffensen and found drugs on his person.
Steffensen moved to suppress the evidence. He argued that his initial contact with Officer Merrion was an unlawful stop. The superior court denied this motion.
Discussion
Whether an investigatory stop is supported by reasonable suspicion is a mixed question of law and fact. We take the facts as found by the trial court (unless the findings are clearly erroneous) but we independently review whether the facts establish reasonable suspicion.
LeMense v. State, 754 P.2d 268, 272-73 (Alaska App. 1988).
Id..
Steffensen concedes that because O fficer Merrion approached the truck and talked 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. A person is seized "only if a reasonable person in his or her position would not feel free to leave." In his treatise on the Fourth Amendment, Professor LaFave finds that factors such as the nature or tenor of a request for identification, whether a vehicle is boxed in, and whether officers approach a vehicle on multiple sides are all relevant for a court to consider when deciding whether an officer's conduct constitutes a seizure.
Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).
LeMense, 754 P.2d at 272 (citing Waring v. State, 670 P.2d 357, 364 (Alaska 1983); Pooley v. State, 705 P.2d 1293, 1305 (Alaska App. 1985)).
4 Wayne R. LaFave, Search and Seizure § 9.4(a), at 433-35 (4th ed. 2004).
Here, Officer Merrion began the contact by informing Steffensen that the officer had observed him committing a potential driving infraction and telling Steffensen that he wanted to see identification. Shortly thereafter, Merrion told Steffensen that he wanted to see the car's registration and proof of insurance. In these circumstances, we conclude that a reasonable person would view Merrion's request for identification 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)).
Superior Court Judge Mark I. Wood concluded that when Officer Merrion requested Steffensen's identification, the officer had an articulable suspicion that Steffensen was impaired.
We disagree with the superior court's conclusion. At the point when Officer Merrion asked for Steffensen's driver's license, Merrion had not observed anything to indicate that Steffensen was impaired. He had seen the truck "almost drive up the one-way street" but this fact, in conjunction with Steffensen sitting behind the wheel of the truck, does not establish reasonable suspicion of imminent public danger or the recent occurrence of serious harm to persons or property.
We conclude that Steffensen was stopped before Officer Merrion had reasonable suspicion. Accordingly, Steffensen's motion to suppress should have been granted.
Conclusion
We REVERSE the order of the superior court denying the motion to suppress.