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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JONNA ROGERS-DWIGHT, )
) Court of Appeals No. A-5445
Appellant, ) Trial Court No. 3KN-94-356 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1422 - July 28, 1995]
______________________________)
Appeal from the District Court, Third Judicial
District, Kenai, M. Francis Neville, Judge.
Appearances: Susan M. Crocker, Assistant Public
Defender, Kenai, and John B. Salemi, Public Defender, Anchorage,
for Appellant. Ryan C. Bell, Assistant District Attorney, Sharon
A.S. Illsley, District Attorney, Kenai, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and Mannheimer,
Judges.
MANNHEIMER, Judge.
Jonna Rogers-Dwight was charged with driving while
intoxicated, AS 28.35.030(a). She asked the district court to
suppress the evidence against her, arguing that the officer who
arrested her had illegally stopped her vehicle. When the
district court denied her suppression motion, Rogers-Dwight
changed her plea to no contest, reserving her right to appeal the
suppression issue. See Cooksey v. State, 524 P.2d 1251, 1255-57
(Alaska 1974). We uphold the district court's ruling on the
suppression motion, and we therefore affirm Rogers-Dwight's
conviction.
Rogers-Dwight's arrest for driving while intoxicated
arose out of an episode involving three vehicles on the Kenai
Spur Highway. State Trooper John Whitehead, driving his patrol
car, observed a truck exceeding the speed limit, and he gave
chase. The speeding truck had just passed Rogers-Dwight's car
when Trooper Whitehead turned on his flashing overhead lights to
signal the driver of the truck to pull over. Rogers-Dwight saw
the trooper activate his lights, and she too pulled over to the
side of the road _ not because she believed the trooper was
trying to stop her, but because she knew she was legally required
to yield her lane to the patrol vehicle.
The driver of the speeding truck pulled off the highway
and came to a stop. Rogers-Dwight brought her car to a stop
about fifty feet behind the truck. Trooper Whitehead stopped his
patrol car some distance behind Rogers-Dwight's car.
Whitehead got out of his patrol car and walked up to
Rogers-Dwight's car; he stood outside her car on the driver's
side, intending to tell her that he had not been chasing her and
that she was free to go. However, Rogers-Dwight had considerable
difficulty trying to roll down her window to speak to the
trooper. (The window mechanism was apparently broken.) She
finally opened her car door to converse with the officer. When
she did so, Whitehead could smell an odor of alcoholic beverages
emanating from the car. During their ensuing brief conversation,
Whitehead noticed that Rogers-Dwight's speech was slurred.
Based on this, Whitehead decided to detain Rogers-
Dwight to further investigate whether she was driving while
intoxicated. He asked Rogers-Dwight for her driver's license;
she had no license but she produced a state identification card,
which Whitehead took from her. Whitehead then told Rogers-Dwight
to turn off her engine and wait for him while he dealt with the
speeder. When Whitehead returned to Rogers-Dwight, he
administered field sobriety tests and asked her to take a
preliminary breath test. On the basis of all his observations,
Whitehead arrested Rogers-Dwight.
On appeal, Rogers-Dwight argues that Whitehead
subjected her to an investigative stop when he had no suspicion
that she had done anything wrong. Rogers-Dwight concedes that
she pulled her car to the side of the highway, not because of
constraint, but because she understood her duty to yield to an
emergency vehicle. At that time, Rogers-Dwight did not think she
was being stopped. She argues, however, that the situation
changed when the trooper stopped his patrol car behind her
(instead of going past her and parking his patrol car between her
and the truck). Rogers-Dwight contends that, once the patrol car
stopped behind her with its lights flashing, a reasonable person
in her position would have felt constrained to remain where she
was until the trooper affirmatively allowed her to leave. Thus,
Rogers-Dwight concludes, the trooper's actions amounted to a
Fourth Amendment seizure, and this seizure was illegal because it
was not supported by articulable suspicion of wrongdoing.
In determining whether a police officer's actions
amount to a Fourth Amendment seizure of a person, we disregard
both the subjective intentions of the police officer and the
subjective perceptions of the person with whom the officer is
dealing. Instead, the question is how a reasonable person,
innocent of wrongdoing, would have perceived the officer's
actions. Wayne R. LaFave, Search and Seizure: A Treatise on the
Fourth Amendment (2nd ed. 1987), 5.1(a), Vol. 2, pp. 388-89. A
seizure occurs when a police officer engages in "a show of
official authority such that a reasonable person would have
believed that he [or she] was not free to leave." Florida v.
Royer, 460 U.S. 491, 502; 103 S.Ct. 1319, 1326; 75 L.Ed.2d 229
(1983). The Alaska Supreme Court uses this same objective test
when determining whether a seizure has occurred for purposes of
the search and seizure clause of the Alaska Constitution (Article
I, Section 14). Waring v. State, 670 P.2d 357, 364 (Alaska
1983).
The present case is unusual because Rogers-Dwight did
not pull over in response to a "show of authority" directed
toward her. The trooper activated his overhead lights in order to
signal the driver of the speeding truck to pull over. A
reasonable person in Rogers-Dwight's position, having seen the
speeding truck go past and having seen the trooper activate his
lights, would have understood that the trooper was not after her.
Rogers-Dwight in fact perceived the situation in this manner.
When a police car approaches with either its overhead
lights or its siren activated, all drivers are obliged to pull
over and stop, then wait for the police car to pass. See 13 AAC
02.140(a).1 Therefore, when a reasonable person in Rogers-
Dwight's position realized that his or her car was between a
speeder and a pursuing police vehicle, the reasonable person
would pull over and stop. Such a stop would be the result of the
generalized statutory duty applicable to all drivers, not a "show
of authority" within the meaning of search and seizure law.
Again, Rogers-Dwight perceived the situation in this manner; she
testified that she stopped her car at the side of the highway to
comply with her statutory obligation to yield to the trooper's
vehicle.
At the same time that Rogers-Dwight was stopping her
vehicle, the driver of the speeding truck was also stopping the
truck. When Rogers-Dwight parked her car about 50 feet behind
the truck, she was still situated between the truck and the
pursuing trooper. As Trooper Whitehead approached the scene, he
decided to park behind Rogers-Dwight's car rather than try to
maneuver between the two vehicles.
Rogers-Dwight's suppression argument rests solely on
the assertion that a reasonable driver in this situation, seeing
the patrol car come to a stop behind her, would have felt
constrained to stay where she was and submit to investigative
questioning. Rogers-Dwight relies on Ozhuwan v. State, 786 P.2d
918, 920 (Alaska App. 1990), where this court held that the
occupant of a parked car was seized for Fourth Amendment purposes
when a police officer brought his patrol vehicle within ten yards
of the parked car, blocking the car's exit, then activated his
overhead lights and approached the car to question the occupant.
Ozhuwan represents mainstream law in this area. As
LaFave says, "[P]olice action which one would not expect if the
encounter was between two private citizens _ boxing the car in,
approaching it on all sides by many officers, or use of flashing
lights as a show of authority _ will likely convert the event
into a Fourth Amendment seizure." Id., 9.2(h), Vol. 3, pp. 416-
17. In Ozhuwan, the government offered two justifications for
the police officer's actions: that the officer was engaged in
the investigation of possible criminal activity and,
alternatively, that the officer had approached the car out of
concern for the safety of its occupants. Regarding the first
offered justification, this court ruled that the facts of the
case failed to provide any reasonable suspicion of criminal
activity. Ozhuwan, 786 P.2d at 922. Regarding the government's
alternative justification, this court stated:
[Although] [i]t is well recognized that
otherwise intrusive police conduct may be
acceptable when there is a legitimate reason
to be concerned for the welfare of a
motorist[,] ... [n]evertheless, the
provisions of the fourth amendment apply with
equal force to seizures that are effected for
the benign purpose of rendering assistance.
... To justify conduct that would amount to
[a fourth amendment] 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, 786 P.2d at 922. The court then found that the
circumstances of the case did not support a reasonable belief
that the occupants of Ozhuwan's car needed the officer's
assistance. Id.
It is important to note that, in Ozhuwan, this court
recognized that a police officer's "community caretaker"
responsibilities could provide justification for a Fourth
Amendment stop. (For a synopsis of the types of police
activities that courts have found to be justified under the
rubric of "community caretaker" functions, see Provo City v.
Warden, 844 P.2d 360, 362-65 (Utah App. 1992), aff'd, 875 P.2d
557 (Utah 1994).) The deciding factor in Ozhuwan was that the
circumstances of the case did not give the officer reason to
believe that a stop was necessary to carry out his community
caretaker functions.
This court's decision in Crauthers v. State, 727 P.2d 9
(Alaska App. 1986), is an instructive point of comparison. In
Crauthers, a police officer on routine patrol was approaching an
intersection when he saw the car in front of him behave
unusually. The car slowed down and came to a stop about 25 to 30
feet before the intersection, and then the driver of the car
rolled down his window. Thinking that the driver was attempting
to get his attention to ask for directions or other assistance,
the officer pulled in behind the car; as a safety precaution
(because the two cars were parked in a traffic lane), the officer
activated his overhead lights. When the officer made contact
with the driver, he discovered the driver to be intoxicated.
On appeal, the driver of the car argued that he had
been subjected to an unlawful stop when the officer parked behind
him and turned on his lights. This court disagreed:
When a police officer observes ...
circumstances which he ... reasonably
concludes to be a request for contact or
assistance, the officer is justified in
making that contact.
Crauthers, 727 P.2d at 11.
The facts of Rogers-Dwight's case bear a resemblance to
the facts of Ozhuwan and the facts of Crauthers. In all three
cases, a law enforcement officer activated his patrol car's
overhead lights and then approached the occupant of a parked car.
However, even accepting Rogers-Dwight's assertion that a
reasonable person in her position would have perceived the
trooper's actions as a Fourth Amendment stop, we nevertheless
find that Rogers-Dwight's case is more like Crauthers than
Ozhuwan _ because, under the facts of Rogers-Dwight's case,
Trooper Whitehead did have an articulable reason to make contact
with her.
As explained above, under 13 AAC 02.140(a), Rogers-
Dwight was obliged to pull her car to the side of the road and
remain stopped there "to await passage of the [trooper's]
vehicle". But the trooper's vehicle did not pass Rogers-Dwight's
car. Trooper Whitehead, apparently for reasons of traffic
safety, chose to park behind her. Under these circumstances, it
was reasonable for Trooper Whitehead to approach Rogers-Dwight
and clarify that, notwithstanding the regulation, she was free to
go.
Even if Rogers-Dwight had been under no statutory duty
to remain where she was, Trooper Whitehead's community caretaker
responsibilities would still justify his action of approaching
and speaking to Rogers-Dwight. Rogers-Dwight's vehicle was
parked between a stopped speeder and a law enforcement officer
who was about to contact the speeder. In order to eliminate the
chance that Rogers-Dwight might be harmed (if Trooper Whitehead's
impending encounter with the driver of the truck took a bad
turn), Whitehead was justified in approaching Rogers-Dwight and
asking her (or directing her) to drive on.
The judgement of the district court is AFFIRMED.
_______________________________
1 13 AAC 02.140(a) provides:
Upon the approach of an authorized emergency vehicle making use of ...
visual ... and audible signals ... , or a police vehicle making use of
either a visual or an audible signal, the driver of every vehicle
proceeding in any direction shall yield the right-of-way by slowing and
pulling to the right hand edge of the roadway, clear of an intersection[,]
and stopping[] to await passage of the emergency vehicle.
