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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MACKEY MARSH, )
) Court of Appeals No. A-4166
Appellant, ) Trial Court No. 3KN-90-1706
Cr
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1253 - October 2, 1992]
________________________________)
Appeal from the District Court, Third
Judicial District, Kenai, Lynn H.
Christensen, Magistrate.
Appearances: Ren‚ L. Wright, Assistant
Public Defender, Kenai, and John B. Salemi,
Public Defender, Anchorage, for Appellant.
David M. Weingartner, Assistant Attorney
General, Kenai, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
Mackey Marsh pleaded no contest to the offense of
driving while his license was revoked, AS 28.15.291, reserving
his right to appeal the district court's denial of his motion to
suppress the evidence against him. Cooksey v. State, 524 P.2d
1251 (Alaska 1974). We affirm.
While on routine patrol during the early evening hours
of November 24, 1990, Alaska State Trooper Simon Brown observed a
car which appeared to be stalled on the side of the Kenai Spur
Highway. Brown activated his overhead lights and pulled up
behind the car. As Brown did so, he noticed the driver start the
engine. When Brown spoke to the driver, he learned that the
driver was Marsh and that Marsh's license had been revoked.
Marsh argues that the trooper's use of his overhead
lights was a clear signal that Marsh was not free to leave, thus
turning the contact into an investigative stop. Marsh then
argues that, because there was nothing to justify an
investigative stop, the evidence of his identity and the fact
that his license was revoked should have been suppressed.
Trooper Brown testified that he activated his overhead
lights for safety reasons in accordance with standard police
procedure so that traffic on the highway could see him parked
along the road in the dark. Brown also testified that it is
standard policy for the troopers to stop and check on stalled
vehicles.
Based on Brown's testimony, the State argues that
Brown's actions were not an "investigative stop" but were,
instead, actions taken pursuant to Brown's community caretaker
duties described in Crauthers v. State, 727 P.2d 9, 10 (Alaska
App. 1986). The State asserts that, when an officer stops at
night to aid a motorist in an apparently stalled car, a
reasonable person in the motorist's position would view the
officer's use of overhead lights as merely a measure to protect
both the patrol car and the stalled vehicle from being hit in the
dark. Noting that an objective test is employed to determine
whether an officer's actions constitute a "seizure" for Fourth
Amendment purposes, Waring v. State, 670 P.2d 357, 364 (Alaska
1983), and Ozhuwan v. State, 786 P.2d 918, 920-21 (Alaska App.
1990), the State argues that Brown's use of his patrol car's
lights would not have seemed coercive to a reasonable (innocent)
motorist in a stalled vehicle. Thus, according to the State,
there was no seizure and therefore the State did not need to
establish reasonable suspicion to justify Brown's actions.
We need not resolve the issue raised by the State
because we find that there was a reasonable basis for Brown's
actions, even if Brown's contact with Marsh is viewed as an
investigative stop.
[I]ntrusive police conduct may be acceptable
when there is a legitimate reason to be con
cerned for the welfare of a motorist. ... To
justify conduct that would amount to an inves
tigative stop, an officer must be aware of at
least some specific circumstances supporting
a reasonable belief that the occupants of a
vehicle need assistance.
Ozhuwan, 768 P.2d at 922.
Brown testified that he believed the car was stalled
because it was parked on the side of the highway on a cold day
and because the driver was making movements as if attempting,
unsuccessfully, to start the ignition. Under these
circumstances, Brown was justified in making contact with Marsh
in order to determine whether Marsh needed assistance.
Marsh contends that Brown's actions cannot be justified
under this rationale because, just as Brown pulled in behind him,
Marsh succeeded in starting his car. However, at the time Marsh
started his car, Brown had already initiated the investigative
stop. Moreover, Marsh's success in getting the engine to turn
over did not necessarily rule out the possibility that there was
a continuing problem with the vehicle.
The "reasonable suspicion" test did not require Brown
to affirmatively negate all other explanations before stopping to
help Marsh, nor did it require the State to show that it was
"more probable than not" that Marsh needed assistance. Rather,
the State had to establish only that there was a substantial
possibility that police assistance was required. See the
analysis in Anchorage v. Cook, 598 P.2d 939, 941-942 (Alaska
1979), and W. LaFave, Search and Seizure (2nd ed. 1987),
9.3(b), Vol. 3, pp. 431-432.
Once Brown contacted Marsh, Brown was authorized by
AS 28.15.131 to request to see Marsh's driver's license, the act
that led to the discovery that Marsh's license had been revoked.
The judgement of the district court is AFFIRMED.
