Notice: This opinion is subject to formal
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THE COURT OF APPEALS OF THE STATE OF ALASKA
CHARLIE A. HAYS, )
) Court of Appeals No. A-4355
Appellant, ) Trial Court No. 3PA-S91-1540CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1292 - April 23, 1993]
)
Appeal from the District Court of the State
of Alaska, Third Judicial District, Palmer,
Peter G. Ashman, Judge.
Appearances: Kathleen Murphy, Assistant
Public Defender, Palmer, and John B. Salemi,
Public Defender, Anchorage, for Appellant.
David G. Berry, Assistant District Attorney,
Kenneth J. Goldman, District Attorney,
Palmer, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
Charlie A. Hays, Jr., pleaded no contest to driving
while license suspended, in violation of AS 28.15.291. Hays
reserved his right to appeal the trial court's denial of his
motion to suppress all evidence gathered after his truck was
stopped by State Trooper Jeannine Santora. See Cooksey v. State,
524 P.2d 1251 (Alaska 1974).
Trooper Santora stopped Hays' pickup because she
suspected that it was the vehicle involved in a recently reported
"gas drive-away", a theft in which a driver had pumped gas into
his vehicle and then left without paying for the gas. Hays
argues that Santora's suspicion was not reasonable.
Santora testified that after getting a radio report
that a green Ford pickup had driven away from the 7-11 store in
Wasilla without paying for gas, she responded by driving toward
Wasilla on the Parks Highway, watching traffic coming in the
other direction. Approximately fifteen minutes after receiving
the report, Santora saw a green Ford pickup on the highway coming
from the direction of Wasilla.
After she pulled Hays' pickup over, but before she got
out of the patrol car, Santora realized that there was some
discrepancy between the truck she had just stopped and the
vehicle description she had been given. She saw that the truck
had only two male occupants, rather than the two male and one
female reported by the person who called in the gas theft.
Santora also realized that the pickup's license plate number did
not match the license number that had been reported. Still,
according to her testimony, Santora was "not convinced" that she
had the wrong vehicle. She therefore walked over to the pickup
and asked the driver, Hays, if he had just come from the Wasilla
7-11. Santora also asked Hays for identification, and it was
then that she learned that his driver's license had been revoked.1
Under Alaska law, an investigative stop is permitted
where an officer "has a reasonable suspicion that imminent public
danger exists or serious harm to persons or property has recently
occurred[.]" Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).
In determining the legality of a stop we use a flexible approach,
balancing the seriousness and recency of the suspected crime and
the strength of the officer's suspicion against the intrusiveness
of the stop. State v. G.B., 769 P.2d 452, 455-56 (Alaska App.
1989).
As we noted in G.B., a well-founded suspicion that a
crime is in progress or has just been completed may justify a
stop even though the crime itself is not a particularly serious
one. Conversely, a crime that is a more serious threat to public
safety may provide sufficient basis for a stop based on
reasonable suspicion even after considerable time has passed.
The report Santora received was a minor crime and
included no suggestion of an imminent threat to public safety.
The amount of time that passed between Santora's receipt of the
report and the stop in this case was significant considering the
fact that both Santora and Hays were traveling in motor vehicles.
Santora was not in Wasilla when she got the report of
the gas theft. Santora testified that she did not recall having
been given any indication of the gas thief's direction of travel.
She responded to the report by driving towards Wasilla on the
Parks Highway; fifteen minutes later, she saw Hays' pickup coming
from the direction of Wasilla. At highway speed, Santora would
have travelled almost fifteen miles between receiving the call
and spotting Hays. During this time the gas thief could also
have driven fifteen miles in any direction. Santora provided no
information of how far from Wasilla the stop occurred. Santora
did not articulate any particular reason to suspect she would
encounter the thief where and when she contacted Hays. Moreover,
there was little correspondence between the suspect vehicle and
Hays'. Hays' truck matched the description only in that it was a
green Ford pickup. The number of passengers differed from that
reported. More importantly, Hays' license plate number did not
match that of the truck involved in the gas theft.
The state argued that Santora acted reasonably in
pulling Hays' truck over because at the time Santora had not yet
noticed that the license number and the number of occupants in
the truck did not match the description she had been given. This
argument begs the real question, which is whether it was
reasonable for Santora to pull the truck over before checking the
license number. The state bears the burden of showing that
Santora's action was reasonable. There is no indication in the
record that anything prevented Santora from simply following
Hays' truck on the highway to determine the number of occupants
and if his license number matched the one reported to her. Had
Santora done this, instead of stopping the truck as soon as she
saw it, she would presumably have realized that the variance
between Hays' truck and the reported description made it
unreasonable to suspect Hays of the gas theft.
When we review investigative stops, "the fundamental
inquiry in each case is whether `a prompt investigation [was]
required . . . as a matter of practical necessity.'" State v.
G.B., 769 P.2d at 456, quoting Coleman v. State, 553 P.2d at 46.
In this case the record discloses no practical necessity for
Santora's immediate stop of the Hays' vehicle.
We conclude that the trial court erred in denying Hays'
motion to suppress. The judgment of conviction is REVERSED.
_______________________________
1. No connection was ever established between Hays
and the gas theft.
