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State v. Prater (5/22/98) ap-1591
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 99501, in order that
corrections may be made prior to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-6460
Petitioner, ) Trial Court No. 3PA-96-1913CR
)
v. ) O P I N I O N
)
WILLIAM L. PRATER, )
)
Respondent. ) [No. 1591 - May 22, 1998]
______________________________)
Petition for Review from the Superior Court,
Third Judicial District, Palmer, Beverly W. Cutler, Judge.
Appearances: Douglas H. Kossler, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Petitioner. John E. McConnaughy, III, Assistant Public Defender,
Palmer, and Barbara K. Brink, Public Defender, Anchorage, for
Respondent.
Before: Coats, Chief Judge, Mannheimer and
Stewart, Judges.
COATS, Chief Judge.
In this case, we expand upon a point we previously noted
without elaboration in Mix v. State, 893 P.2d 1270, 1273 (Alaska
App. 1995): in certain circumstances, relevant information known
to a police dispatcher may be "imputed" to a police officer who
conducts an investigative stop and so may be considered for
purposes of evaluating whether the stop was supported by a
reasonable suspicion of imminent public danger.
The state charged William L. Prater with felony driving
while intoxicated, a class C felony because Prater had been twice
convicted within the past five years, and with driving while
license revoked, a class A misdemeanor. AS 28.35.030(n); AS
28.15.291.
According to the police reports to which the parties
acceded for purposes of Prater's suppression motion, on the evening
of August 20, 1996, Reserve Officers Lammot and Lissner heard an
Alaska State Troopers' dispatch that a "REDDI" [Fn. 1] report had
been received regarding an intoxicated driver. The report
described a white Ford Escort with Alaska license plate number CYT
249 traveling toward Palmer on the Palmer-Wasilla Highway. Moments
later, Lammot and Lissner spotted the car and performed a traffic
stop. The driver, Prater, then failed field sobriety tests and was
arrested for driving while intoxicated and driving while license
revoked.
The REDDI report had contained additional details that
had not been broadcast to the officers in the police dispatch. The
caller who had made the report, a male, had added that the drunken
driver in the described car at the described location had not
possessed a driver's license and had been arrested before for
driving while intoxicated; the caller had stated that he knew this
information because he personally knew the driver, who had just
left the residence. The caller gave the driver's name as William
Prater and spelled out the last name. The caller did not identify
himself, but the 911 log recorded the telephone number of the
caller. [Fn. 2]
Prater moved to suppress the evidence resulting from the
traffic stop, arguing that it had not been justified by reasonable
suspicion. Superior Court Judge Beverly W. Cutler granted the
motion and suppressed the evidence. Judge Cutler ruled that any
information from the REDDI report that had not been communicated to
the officers could not be considered in evaluating whether the stop
was justified; the judge ruled that the dispatcher could not be
considered part of the "police team" or as a "fellow officer," so
his or her information could not be imputed to the officers who
stopped Prater. In her decision, Judge Cutler relied on language
from this court's recent opinion in Mix v. State, 893 P.2d 1270
(Alaska App. 1995). She stated:
The potential problem with imputing to the
arresting officers other background infor-mation that the anonymous
caller had conveyed to the dispatcher is noted in Mix: "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." Mix at 1272-73.
(Alteration omitted by Judge Cutler but included in Mix.)
Excluding the information known to the dispatcher but not broadcast
to the officers, Judge Cutler went on to rule that there was
insufficient information to justify the stop:
The arresting officers in this case did not
receive sufficient details from the dispatcher to establish
"specific and articulable facts which create a reasonable suspicion
that imminent public danger exists." Coleman [v. State, 553 P.2d
40,] 46 [(Alaska 1976)]. Nor did they make such observations
themselves.
The judge therefore granted Prater's motion to suppress the
evidence stemming from the investigative stop of his car. The
state petitioned this court to review Judge Cutler's order, and
this court granted the petition.
The state does not contend that Judge Cutler erred in her
second ruling: that the information that had been broadcast in the
trooper dispatch, consisting as it did only of a description and
location of a vehicle, did not by itself suffice to create
reasonable suspicion. The sole issue in this petition is the
correctness of Judge Cutler's first ruling: that the additional
information in the REDDI report known to the dispatcher could not
be imputed to the officers or considered in determining whether
there was reasonable suspicion to justify the stop.
This court did not decide this issue in Mix. This
court's Mix opinion focused on the stopping officer's actual
knowledge, information, and observations and points out that there
was no information available to him other than a cursory radioed
dispatch and the fact that the officer observed the described car
thirty seconds later. See Mix, 893 P.2d at 1272 (e.g., "Hoffman
had absolutely no information . . . ," "Hoffman had no further
insight . . . ," etc.). However, in the concluding paragraph of
the Mix opinion, this court left open the possibility that
additional evidence might suffice even if it were known only to the
dispatcher as opposed to the officer:
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.
Id. at 1273 (emphasis added).
In Mix this court relied on and quoted language from the
then-latest edition of LaFave's treatise on search and seizure.
See Mix, 893 P.2d at 1272. The corresponding section of the now-
latest edition of this treatise sets out the following requirements
(quoted from United States v. Hensley, 105 S. Ct. 675, 682 (1985))
governing whether a stop based on a directive through police
channels will be upheld:
[I]t is only necessary that (i) the officer
making the stop have acted "in objective reliance on a flyer or
bulletin"; (ii) "the police who issued the flyer or bulletin
possessed a reasonable suspicion justifying a stop"; and (iii) "the
stop that in fact occurred was not significantly more intrusive
than would have been permitted the issuing department."
4 Wayne R. LaFave, Search and Seizure sec. 9.4(i), at 233-34 (3d
ed.
1996) (footnotes omitted). In Hensley, the United States Supreme
Court upheld an investigative stop that police made on the basis of
a "wanted" flyer even though the police who actually conducted the
stop did not personally know of any facts underlying reasonable
suspicion to stop Hensley, on the ground that the police who had
issued the "wanted" flyer had personally known of facts constituting
reasonable suspicion. Hensley, 105 S. Ct. at 683-84.
Most of the cases cited by LaFave that apply these
requirements, including Hensley, involve information or directives
from a police officer, as opposed to a dispatcher, and acted upon
by another police officer. Judge Cutler distinguished Prater's
case from such cases on this ground, ruling that such cases
involved "a 'police team' rule or 'fellow officer' rule" and that
"[a] dispatcher at the police station does not have the same kind
of 'team' connection with the arresting officers in this case." On
appeal, Prater argues that this ruling is correct and that
knowledge possessed by dispatchers, as opposed to officers, can
never be imputed to the officers who stop or seize. However,
LaFave also cites some cases that do involve broadcasts by
dispatchers, and it appears from them that the majority rule is
that information known by the dispatchers and on which the
broadcast dispatch is based will indeed be considered in
determining whether the dispatch and, therefore, the stop is
supported by reasonable suspicion. See, e.g., United States v.
Cutchin, 956 F.2d 1216, 1217-18 (D.C. Cir. 1992); Olson v. Comm'r
of Pub. Safety, 371 N.W.2d 552, 555-56 (Minn. 1985); State v.
Franklin, 841 S.W.2d 639, 643 (Mo. 1992) (en banc). [Fn. 3]
We are guided by an Alaska Supreme Court case that
appears to have at least implicitly applied this majority rule. In
Mattern v. State, 500 P.2d 228 (Alaska 1972), a citizen made two
telephone calls in the middle of the night to the police: the
first stating that someone was in the apartment below hers and the
occupant of the apartment was away and the second stating that a
white Dodge van with its lights turned off was driving away. Id.
at 229. The "police dispatcher" broadcast two radio bulletins, the
first stating that a burglary was in progress on Second Avenue and
the second stating that a white Dodge van was leaving the area with
its lights off. Id. Based on the dispatches, two officers stopped
the van and eventually arrested the occupants. Id. at 229-30. The
supreme court held that the seizure of evidence was not the fruit
of an "illegal detention," in part because the details of the phone
calls that had not been broadcast to the police officers
contributed to "probable cause to arrest": [Fn. 4]
The police dispatcher told the arresting
officers that a burglary was in progress and then reported that the
burglar was leaving the scene in a white Dodge van without lights.
Information relayed to a police officer via the police radio may
provide probable cause to arrest. However, when one officer
furnishes evidence to another officer which leads to an arrest, the
state must prove the reasonable basis of the former officer's
information. The radio dispatch was based upon Mrs. Mer[r]ell's
call to the police that she heard noises in her friend's empty
apartment below. She also reported an unfamiliar vehicle leaving
the area without lights.
In a large city Mrs. Merrell's report to
the police and Mattern's furtive manner in leaving the scene would
not perhaps be particularly evocative of a belief that a burglary
had been committed. In a large urban area neighbors are often
anonymous. Ketchikan, however, is a relatively small community
where people are likely to know their neighbors and are interested
and aware of their movements. An unfamiliar car in a larger city
might not arouse suspicion but it will be noticed in a smaller
community. Thus we feel that Mrs. Merrell's report to the police
that someone was illegally in her neighbor's empty apartment and
the subsequent strange behavior of the defendant in driving his car
away from this apartment in the middle of the night, without
benefit of headlights and passing by his own street, although he
told the police he was going home, are sufficient in this case to
give the police probable cause to believe that Mattern had
committed a burglary in Carol Krebs' apartment.
Id. at 232-33 (footnotes omitted).
We conclude that Judge Cutler erred by ruling that a
dispatcher's knowledge can never be considered in evaluating
whether an investigative stop is justified unless the dispatcher
specifically communicates that knowledge to the stopping police
officer. Instead, we apply the rule set out by the United States
Supreme Court in Hensley: an investigative stop made in objective
reliance on a police dispatcher's bulletin is justified if the
dispatcher who broadcast the bulletin possessed reasonable
suspicion of imminent public danger justifying the stop. See
Hensley, 105 S. Ct. at 682.
We therefore remand this case so that Judge Cutler may
evaluate the underlying facts and unbroadcast details of the
telephone call to the dispatcher [Fn. 5] and consider them in
deciding whether the investigative stop in this case was supported
by reasonable suspicion. Reasonable suspicion to stop a vehicle
may be based on a sufficiently detailed telephoned report that the
driver may be driving while intoxicated. See Goodlataw v. State,
847 P.2d 589, 590-91 (Alaska App. 1993); Effenbeck v. State, 700
P.2d 811, 812 (Alaska App. 1985).
We VACATE the superior court's order and REMAND for
further proceedings. We do not retain jurisdiction in this case.
FOOTNOTES
Footnote 1:
This acronym stands for "Report Every Drunk Driver
Immediately," a community service program that encourages citizens
to alert the authorities when they believe they have encountered an
intoxicated driver. This court previously described the REDDI
program in Effenbeck v. State, 700 P.2d 811, 812 n.1 (Alaska App.
1985).
Footnote 2:
Two weeks later, the troopers' investigation into this
telephone number identified a person who admitted to having made
the REDDI report.
The state does not argue that this information, which was not
known to the police at the time of the investigative stop, should
be "imputed" to the stopping officers or considered when determining
whether the stop was justified.
Footnote 3:
LaFave also cites with a "But see" signal a case apparently
exemplifying a minority rule to the contrary: State v. Miller, 510
N.W.2d 638 (N.D. 1994). This case is criticized in Comment, James
R. Salisbury, Criminal Procedure Due Process: Towards More
Effective Law Enforcement Utilization of Collective Knowledge to
Sustain a Reasonable Suspicion Inquiry, 71 N.D. L. Rev. 797 (1995).
Footnote 4:
Alaska law had not yet adopted the reasonable-suspicion
investigative-stop standard: "We do not feel that this case is a
proper vehicle for discussion of the stop and frisk question."
Mattern, 500 P.2d at 233 n.15.
Footnote 5:
Although the state has already submitted more details about
the original 911 call than were broadcast in the dispatch, Prater
has explictly agreed with this offer of proof below "as to the
contents of the REDDI report received by AST dispatch," and Judge
Cutler has therefore denied an evidentiary hearing to further
develop these unbroadcast details, on remand we do not preclude
Judge Cutler from hearing any further evidence regarding these
details.
