Notice: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
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prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL MIX, )
) Court of Appeals No. A-5334
Appellant, ) Trial Court No. 4FA-S93-2111CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1405 - April 14, 1995]
)
Appeal from the District Court, Fourth
Judicial District, Fairbanks, Jane F. Kauvar,
Judge.
Appearances: Geoffry B. Wildridge,
Assistant Public Defender, Fairbanks, and
John B. Salemi, Public Defender, Anchorage,
for Appellant. Gregory S. Fisher, Assistant
District Attorney, Harry L. Davis, District
Attorney, Fairbanks, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
Michael Mix pleaded no contest to driving while
intoxicated (DWI) and driving while license suspended (DWLS),
reserving his right to appeal the denial of his motion to
suppress all evidence gathered after the stop of his car.1 Mix
argues that there was no reasonable suspicion to support the
stop.
Fairbanks Police Officer Daniel Hoffman was the only
witness at the evidentiary hearing on Mix's motion to suppress.
Hoffman testified that on the day of Mix's arrest, he was on
patrol when he heard the Alaska State Trooper (AST) dispatcher
broadcast a "locate" for an intoxicated driver. Hoffman recalled
the dispatcher saying, "We have information that a red Datsun
hatchback, license [CKM495], is believed to have an intoxicated
driver and is presently turning eastbound from Peger [Road] onto
Airport [Way]." When he heard the dispatch, Hoffman was coming
up on Airport Way, so he waited at the intersection of Airport
and Lathrop. About thirty seconds later, Hoffman saw a red
Datsun hatchback coming down Airport Way from the direction of
Peger Road. The Datsun's license number was that reported by the
dispatcher. Hoffman pulled out behind the Datsun and stopped it.
Mix was the driver of the Datsun, and Hoffman subsequently
arrested him for DWI and DWLS.
Hoffman testified that his decision to stop Mix's car
was based solely on what he had heard from the AST dispatcher and
that at the time of the stop he had no idea who had made the
report of an intoxicated driver.
Judge Kauvar denied the motion to suppress. The judge
found that Hoffman had had a "reasonable basis" for stopping the
car. She found that when Hoffman saw a car exactly meeting the
dispatcher's description at exactly the place it was reported to
be, only a very short time after the report came in, that was
reason enough for him to stop the car.
Mix argues that Hoffman didn't have reasonable
suspicion of DWI because he had no information regarding the
reliability and basis of knowledge of the caller who reported the
intoxicated driver, i.e., because the Aguilar/Spinelli2 test was
not satisfied. Under Alaska law, the Aguilar/Spinelli
test must be satisfied if an informant's tip is to be used to
establish probable cause for a search or an arrest. A brief
investigative stop like the one in this case, however, need not
be supported by probable cause, but only by a reasonable
suspicion of imminent public danger. See Coleman v. State, 553
P.2d 40, 46 (Alaska 1976); Goodlataw v. State, 847 P.2d 589, 591
(Alaska App. 1993). A tip need not necessarily satisfy the
Aguilar/Spinelli test in order to contribute to a finding that
reasonable suspicion existed to justify an investigative stop.
Goodlataw, 847 P.2d at 591. The issue here is simply whether
Hoffman had a reasonable suspicion that Mix was an intoxicated
driver.
Although the Aguilar/Spinelli test need not be met in
order to establish reasonable suspicion, the test "provides a
useful framework for evaluating the trustworthiness of hearsay
reports[.]" Id. In both Goodlataw and Effenbeck v. State, 700
P.2d 811 (Alaska App. 1985), we found reasonable suspicion for a
stop where the officer conducting the stop observed no bad
driving, but relied solely on an anonymous report of DWI. In
each of those cases, however, unlike this one, the officer
conducting the stop had some direct indication that the anonymous
caller was a citizen informant speaking from personal knowledge
of the driver's intoxication.
In this case, Hoffman had absolutely no information
about the circumstances leading to the "locate" broadcast by the
AST dispatcher. He confirmed the presence of the car in its
reported location. Standing alone, however, this provided him
with no reasonable basis to suspect that the driver of the car
was intoxicated. Taken in combination with the additional
information, Hoffman had no further insight into the reliability
of the information concerning the driver's intoxication. Cf.
Alabama v. White, 496 U.S. 325 (1990) (corroboration of innocent
facts sufficient to show reasonable suspicion where facts
establish anonymous informant's ability to predict suspected
further conduct). In fact, it was not even clear whether the
"locate" was based on an anonymous tip at all. The danger
inherent in this situation is obvious. As Professor LaFave has
pointed out:
[W]hen a police bulletin is accepted at
face value when it is utilized only for
purposes of making a stop, then there is no
determination at all of reliability. Such
acceptance is not only wrong, it could lead
to ludicrous results; an officer could not
make a stop on the basis of assertions from
an anonymous informant made to him, but could
bring about a lawful stop by the simple
expedient of passing those assertions on to
another officer.
3 Wayne R. LaFave, Search and Seizure 9.3(f), at 488 (2nd ed.
1987) (footnotes omitted). Taking this line of reasoning one
step further, if a dispatched "locate" could by itself create
reasonable suspicion, an officer prompted not by a tip at all,
but only by a hunch, could relay a description and license number
through the dispatcher and thereby effectuate a lawful stop.
In this case, in which the officer making the stop had
no indication that the "locate" was based on reliable firsthand
information and in which the state presented no evidence that the
dispatcher or some other officer had relevant knowledge that
could possibly be imputed to Officer Hoffman, we cannot find that
the stop was supported by a reasonable suspicion of imminent
public danger. The district court erred in denying Mix's motion
to suppress.
The judgment of the district court is REVERSED.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL MIX, )
) Court of Appeals No. A-5334
Appellant, )
)
v. ) O R D E R
)
STATE OF ALASKA, )
)
Appellee. )
___________________________)
Trial Court No. 4FA-93-02111 Cr.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
On consideration of appellant's motion for publication,
filed on March 23, 1995,
IT IS ORDERED:
1. The motion for publication is GRANTED.
2. Memorandum Opinion and Judgment No. 3074,
published on February 8, 1995, is WITHDRAWN.
3. Opinion No. 1405 is issued on this date in its
place.
Entered by direction of the Court at Anchorage, Alaska,
on April 14, 1995.
CLERK OF THE COURT OF APPEALS
_____________________________
JAN HANSEN
cc:
COA Judges
Central Staff
Judge Kauvar
Appeals Division
Geoffry Wildridge
Gregory Fisher
Michael Mix
_______________________________
1 See Oveson v. Anchorage, 574 P.2d 801 (Alaska 1978);
Cooksey v. State, 524 P.2d 1251 (Alaska 1974).
2 Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United
States, 393 U.S. 410 (1969).
