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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JAMES V. BARROWS, )
) Court of Appeals No. A-3773
Appellant, ) Trial Court No. 4FA-S90-1150 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1149 - July 26, 1991]
______________________________)
Appeal from the District Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Jane F. Kauvar, Judge.
Appearances: Michael S. Pettit, Assistant
Public Defender, Fairbanks, and John B.
Salemi, Public Defender, Anchorage, for
Appellant. Gayle L. Garrigues, Assistant
District Attorney, Harry L. Davis, District
Attorney, Fairbanks, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
James V. Barrows pleaded no contest to a charge of
driving while his license was revoked, AS 28.15.291(a), reserving
the right to appeal the denial of his motion to suppress evidence
arising from what he asserted was an illegal investigatory stop.
Cooksey v. State, 524 P.2d 1251 (Alaska 1974). We affirm.
At the evidentiary hearing on the motion to suppress,
Fairbanks Airport Security Officer Moses Villalobos testified
that he received a radio message from another officer that there
was "a vehicle parked in an area where vehicles aren't normally
parked", and that the occupants "appeared to be doing something
that ... seemed suspicious". Villalobos proceeded to the area
described by his fellow officer and observed a van legally parked
on the side of the road.
According to Villalobos, the road where the van was
parked, although open to the public, was not a heavily traveled
route; it was uncommon to see people parked there. Villalobos
testified that he routinely makes contact with people observed in
that area "just to talk to them" and "make [them] aware that
there are certain laws that they have to abide by". Villalobos
testified that people have been known to use drugs and discharge
firearms in that area and that minors frequently consume alcohol
there. Villalobos also testified that he believed the vehicle
"could have been broke[n] down". He conceded, however, that
there were "numerous reasons" why the vehicle might have been
there.
Acting on these concerns, Villalobos stopped his patrol
car about 20 feet away from the van. As he described it, when he
walked toward the van he observed a female passenger; this woman
"kept disappearing" in the back of the van. The driver, a male,
"was going back and forth where I couldn't see him for a while
and then I could see him for a while." Villalobos was aware that
there had been sexual assaults in the area and he became
concerned about the safety of the female passenger.
As he got closer, Villalobos observed that the woman
was pregnant and extremely intoxicated. Villalobos asked the
couple "how [they were] doing", and he asked the woman her name,
which she provided. After determining that the woman was not in
any danger, Villalobos asked Barrows "if he'd mind" showing
identification. Barrows responded that he had no identifying
papers with him. Villalobos then asked Barrows his name.
Barrows identified himself. Villalobos ran a computer check on
the name and learned that Barrows's license was revoked.
Villalobos confronted Barrows with this information and
warned him that, if he drove, he would be placed under arrest.
Villalobos offered to call someone to drive Barrows home, but
Barrows told Villalobos that his brother-in-law, who was out
walking in the woods, would return to the car and drive it.
Villalobos then left the scene.
Shortly thereafter, Villalobos saw Barrows driving the
van. Villalobos stopped Barrows and issued him a citation for
driving while his license was revoked.
Barrows also testified at the evidentiary hearing. His
version of events was slightly different. According to Barrows,
when Villalobos asked him for his name, Villalobos told Barrows
that he would go to jail if he did not reveal his identity.1
District Court Judge Jane F. Kauvar, who heard the suppression
motion, ruled that Villalobos had been entitled to make contact
with the occupants of the van to "make sure ... there [was not] a
problem" and "to make sure ... the woman [was] okay." Regarding
Villalobos's request for Barrows's name, and the officer's
subsequent computer check of the status of Barrows's license,
Judge Kauvar ruled:
I don't know if Villalobos had a right to
necessarily demand that Barrows give his
name. ... But he asked him his name, and
Mr. Barrows gave him his name. And I don't
think there was anything illegal then about
[Villalobos's] just checking to see if the
license was revoked. Once [Villalobos] knew
[Barrows] had a revoked license, I think he
had a right to stop him when he saw him
driving.
In making this ruling, Judge Kauvar implicitly rejected
Barrows's claim that Villalobos had threatened him with jail if
did not identify himself. This finding is not clearly erroneous.
In Van Cleve v. State, 649 P.2d 972, 976 n.6 (Alaska App. 1982),
we noted that "great deference is afforded the trier of fact's
resolution of ... testimonial conflicts because of its ability to
observe the witnesses' demeanor." Moreover, in his brief to this
court, Barrows does not renew the claim of coercion; while he
characterizes Villalobos's request for identification as a
"demand", Barrows does not assert that it was accompanied by a
threat.
Nevertheless, relying on Ozhuwan v. State, 786 P.2d 918
(Alaska App. 1990), Barrows contends that he was subjected to an
illegal investigatory stop when Villalobos asked him for identifi
cation. Barrows asserts that Villalobos, by making this request,
in effect instructed Barrows to "stay put" while the officer ran
the computer check. Barrows further contends that Villalobos no
longer had any reasonable suspicion of criminal activity at the
time he made the request for identification.
But not all encounters between the police and private
citizens are investigative stops amounting to seizures for Fourth
Amendment purposes. Waring v. State, 670 P.2d 357, 363 (Alaska
1983). In Waring, the supreme court explained the difference
between a permissible "encounter" and a "seizure":
Law enforcement officers do not violate the
Fourth Amendment by merely approaching an
individual on the street or in another public
place, by asking him if he is willing to
answer some questions, by putting questions
to him if the person is willing to listen, or
by offering in evidence in a criminal
prosecution his voluntary answers to such
questions. ... Nor would the fact that the
officer identifies himself as a police
officer, without more, convert the encounter
into a seizure requiring some level of
objective justification.
670 P.2d at 363, quoting Florida v. Royer, 460 U.S. 491, 497;
103 S.Ct. 1319, 1324; 75 L.Ed.2d 229, 236 (1983).
A Fourth Amendment seizure occurs only when an officer,
by means of physical force or a show of authority, in some way
restrains the liberty of a citizen. A person is "seized" within
the meaning of the Fourth Amendment only if, in light of all the
circumstances, a reasonable person would believe that he or she
was not free to leave or to break off the questioning. Waring v.
State, 670 P.2d at 364. Elaborating this standard, the Alaska
Supreme Court has stated:
We recognize that, upon being confronted by a
police officer, the average person would feel
an obligation to respond to the officer's
questions and not to walk away. Such a con
frontation, therefore, will amount to a sei
zure only if the officer added to those inher
ent pressures by engaging in conduct which a
reasonable man would view as threatening or
offensive even if coming from another private
citizen. ... The critical inquiry would be
whether the policeman, although perhaps
making inquiries which a private citizen
would not be expected to make, has otherwise
conducted himself in a manner consistent with
what would be viewed as a non-offensive
contact if it occurred between two ordinary
citizens.
670 P.2d at 364, quoting W. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment (1st ed. 1978), 9.2, Vol. 3,
pp. 53-54.
Applying this test to the facts found by the trial
court, we conclude that Barrows was not "seized" when Villalobos
approached his van, questioned him briefly, and requested
identification. The encounter between Villalobos and Barrows
took place on a public road. Villalobos did not activate his
overhead lights or otherwise instruct Barrows to stop; he did not
position his vehicle so as to block Barrows's departure.
Villalobos merely approached the van, which was already parked on
the side of the road, and put questions to Barrows and his
companion in a conversational manner. Villalobos did not display
a weapon or make any threatening remarks or gestures.
Villalobos's request that Barrows identify himself was not
accompanied by any threat or promise of official retaliation if
he refused.
A reasonable person in Barrows's position would have
felt free to refuse to comply with this request. We recognize,
as the supreme court pointed out in Waring v. State, that the
average person may feel a certain degree of obligation to respond
to an officer's questions. But this inherent pressure to respond
to an official in uniform does not convert the contact into a
seizure for Fourth Amendment purposes. See also Pooley v. State,
705 P.2d 1293, 1306 (Alaska App. 1985), holding that a "mere
request for identification does not automatically render the stop
a seizure".
Courts from other jurisdictions, confronted with circum
stances similar to Barrows's case, have concluded that the offi
cer's actions did not amount to a seizure. In Atchley v. State,
393 So.2d 1034, 1038-44 (Ala. App. 1981), the court ruled that no
seizure occurred when the police approached the sleeping occupant
of a legally parked car, asked him for identification, and
questioned him to see if he "was having some kind of problem".
In Purce v. United States, 482 A.2d 772, 774-77 (D.C. 1984), the
court held that no seizure occurred when the police drove through
the parking area of a public park to see if "everything was
okay", observed a parked car with a sleeping male, learned from
their dispatcher that the registered owner of the car was female,
and then questioned the defendant about "what he was doing there"
and requested that he show them identification. In Lightbourne
v. State, 438 So.2d 380, 387-88 (Fla. 1983), the court ruled that
no seizure occurred when the police, in response to a call
regarding a "suspicious car", approached a parked car, asked the
occupant to identify himself and explain why he was there, and
then ran a records check on his car and his name. And in United
States v. Elmore, 595 F.2d 1036 (5th Cir. 1979), the court held
that no seizure occurred when the police briefly questioned a
person seated at an airport and requested, but did not demand, to
see identification. See also W. LaFave, Search and Seizure (2nd
ed. 1987), 9.2(h), Vol. 3, pp. 408-09, supporting the
proposition that the conduct of police in merely approaching and
questioning a person in a parked vehicle in a public place does
not constitute a seizure.
Under these authorities, we are satisfied that Barrows
was not subjected to an investigatory stop when Villalobos
approached him and asked him to identify himself. Accordingly,
the judgement of the district court is AFFIRMED.
_______________________________
1 Barrows also testified that he did no driving on the
date in question. Judge Kauvar found that Barrows was driving at
the time of the investigatory stop. This finding is not clearly
erroneous; in fact, Barrows concedes on appeal that he was
driving.
