Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
Castle v. State (5/5/00) ap-1670
Castle v. State (5/5/00) ap-1670
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DONALD L. CASTLE, )
) Court of Appeals No. A-7093
Appellant, ) Trial Court No. 4FA-97-3758 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1670 May 5, 2000]
)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Sigurd E. Murphy, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. W.H. Hawley, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
COATS, Chief Judge, dissenting.
On December 4, 1997, at approximately 3:30 in the morning,
Fairbanks Police Officer Gary A. Yamamoto stopped a vehicle because
one of its headlights was out. Donald L. Castle was a passenger in
this car.
Officer Yamamoto questioned the driver, Michael Browning,
and found out that Browning's driver's license was revoked. As
Yamamoto was taking Browning into custody, Castle got out of the car
and announced that he wanted to leave. Yamamoto directed Castle to
get back in the car and stay there until the officer could interview
him. Yamamoto then escorted Browning back to his patrol car. While
Yamamoto's attention was focused on the driver, Castle walked away
from the scene.
After securing Browning in his patrol car, Yamamoto began
driving through the neighborhood, searching for Castle. Yamamoto
discovered Castle walking along the street, on the sidewalk. The
officer pulled his patrol car alongside Castle and stated, "Sir, I
need to talk to you for just a moment." At that point, Castle
started running. Castle left the sidewalk and ran into the middle
of the street, right in front of Yamamoto's patrol car. Yamamoto
turned on his overhead lights and gave chase.
Yamamoto followed Castle for approximately three blocks.
Observing that Castle was beginning to tire, the officer pulled up
next to Castle, rolled down his window, and gave Castle a push into
the snowbank on the side of the road. Yamamoto then got out of his
patrol car and chased Castle on foot. When the officer caught
Castle, the two men grappled for a few minutes, but Castle
eventually submitted.
Yamamoto handcuffed Castle and patted him down for
weapons. Although he found no weapons, Yamamoto carried Castle back
to the patrol car and searched him again for drugs. This search
yielded several small plastic bags with white powder residue in
them; this residue field-tested positive for cocaine. Yamamoto then
arrested Castle. Castle subsequently pleaded no contest to fourth-
degree misconduct involving controlled substances [Fn. 1], reserving
his right to contest the legality of the stop that led to the
discovery of the cocaine. [Fn. 2]
On appeal, Castle renews his challenge to the legality of
the stop, but he also disputes the intensity of the search that
followed the stop. He points out that, during an investigative
stop, an officer may engage in only a limited body search: a pat-
down for weapons. [Fn. 3] Castle argues that even if Yamamoto was
justified in making the stop, the officer nevertheless exceeded his
authority when he searched Castle for drugs after the weapons pat-
down yielded nothing.
This second argument concerning the intensity of the
search is raised for the first time on appeal; Castle did not
present it to the superior court. Accordingly, we decline to
address it. [Fn. 4] We turn, instead, to the issue that Castle did
preserve: the legality of the stop.
"[W]henever a police officer accosts an individual and
restrains his freedom to walk away, [the officer] has 'seized' that
person" for purposes of the Fourth Amendment. [Fn. 5] Moreover, a
police officer's conduct may be deemed a "restraint" of a citizen's
freedom even when the officer does not use force. "[T]he question
of whether an investigative stop occurred [hinges on whether] the
challenged police conduct would lead a reasonable person to believe
that the person was not free to leave." [Fn. 6] Because the average
person often feels "an obligation to respond to [police] questions
and not to walk away", a seizure occurs only when the police officer
"add[s] to these inherent pressures by engaging in conduct which a
reasonable [person] would view as threatening or offensive even if
coming from another private citizen." [Fn. 7]
For Fourth Amendment purposes, a seizure occurs whenever
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." [Fn. 8] The Alaska Supreme Court uses this same
test when determining whether a seizure has occurred for purposes
of the search and seizure clause of the Alaska Constitution (Article
I, Section 14). [Fn. 9] Under this test, when a police officer
instructs a person to sit in a patrol car, the officer "seizes" the
person. [Fn. 10]
That is what happened in Castle's case. When Castle
announced that he intended to leave the scene, Officer Yamamoto
responded by telling Castle to "hold on", to "have a seat in the car",
and to wait there until the officer returned. We believe that a
reasonable person in Castle's position would have interpreted this
exchange as an exercise of authority a directive to remain where
he was until the officer allowed him to depart.
In his dissent, Judge Coats suggests that Yamamoto's
response to Castle was only a request, not a command. He points out
that, according to Yamamoto's testimony, his exact words to Castle
were: "Why don't you have a seat in the car. I'll be right back
with you." Judge Coats concludes that, given Yamamoto's phrasing,
a reasonable person in Castle's position would not have believed
that Yamomoto was ordering him to stay, but only asking him to stay
a request that Castle was free to honor or decline.
Given the circumstances in which Yamamoto and Castle
exchanged these words, Judge Coats's interpretation of their
conversation appears overly generous to the State. But even if we
assume that Yamamoto's first words to Castle might reasonably be
construed as a request rather than an order, there was no mistaking
the tenor of Yamamoto's second colloquy with Castle. After Castle
declined Yamamoto's "request" and walked away from the scene of the
traffic stop, Yamamoto refused to accept Castle's decision. The
officer hunted Castle through the neighboring streets, then pulled
alongside Castle in his patrol car and told him, "I need to talk to
you for just a moment." At this juncture (if not before), a
reasonable person in Castle's position would believe that the
officer was ordering him to stop and submit to questioning.
At that point, a seizure occurred or, more precisely,
a seizure would have occurred had Castle followed the officer's
instruction. As it happened, Castle ignored the officer's order.
The actual seizure occurred a few moments later when Yamamoto chased
after Castle, blocked his path with the patrol vehicle, and wrestled
him to the ground.
The State offers three rationales to support this seizure.
First, the State argues that Castle was a witness to Browning's
crime of driving with a revoked license. Second, the State argues
that Castle's sudden exit from the car caused Yamamoto to reasonably
fear that Castle might assault him. And third, the State argues
that Castle himself committed a crime by running into the middle of
the street. We discuss these three rationales in turn.
But before we begin those discussions, it is important to
note an argument that the State has not raised. The United States
Supreme Court has ruled that, in the interest of officer safety,
police officers making a traffic stop have the authority to order
the driver and the passengers out of the car, even when there is no
articulable reason to fear that these people might assault the
officer. [Fn. 11] Castle's case potentially raises a related but
different issue: during a routine traffic stop, when there are no
circumstances that would justify an investigative stop of the
passenger, does a police officer nevertheless have the authority to
order a passenger to remain in the car and not leave the scene? The
United States Supreme Court has expressly refrained from deciding
this issue. [Fn. 12]
We note that the Washington Supreme Court and the Maryland
Court of Appeals have ruled that police officers do not possess such
authority. [Fn. 13] On the other hand, the Supreme Court of
Illinois has ruled that police officers do have this authority, at
least when the passenger engages in sudden movement that arouses a
justified fear for the officer's safety. [Fn. 14]
In the present case, the State does not argue that police
officers have a general authority to detain passengers at the scene
of a routine traffic stop. The State does argue that Castle's
actions at the scene of the traffic stop raised a reasonable fear
for Officer Yamamoto's safety, but, as explained below, the record
does not support the State's assertion. Therefore, like the United
States Supreme Court, we expressly do not decide the question of a
police officer's authority to detain passengers at the scene of a
routine traffic stop for no reason other than their presence as
passengers in the car.
The State's argument that Yamamoto could stop Castle because
Castle was a witness to a crime
The State contends that Officer Yamamoto was authorized
to stop Castle because the officer knew that Castle was a witness
to a crime Browning's crime of driving with a revoked license.
In Metzker v. State [Fn. 15] and in Beauvois v. State [Fn. 16], this
court recognized the authority of the police to "approach and stop
a person for the purpose of investigating a crime even though the
officer has no reason to believe that the person stopped has
committed the crime which is being investigated." [Fn. 17] However,
the police are justified in stopping witnesses "only where exigent
circumstances are present". [Fn. 18]
The facts of Beauvois provide an illustration of the
exigency required to support an investigative stop of a witness.
In Beauvois, the police officer knew that a robbery had just
occurred in the vicinity of a campground and that the robber had
fled on foot toward the campground:
The time was three o'clock in the morning, when
most people are asleep. The streets leading to the campground were
deserted. [The officer] saw only one vehicle moving: the Corvette
leaving the campground. It was reasonable to suspect that the
occupants of the Corvette had been awake in the campground when the
robber came through, and that they might have seen something. Under
these circumstances, and especially given the recency and the
seriousness of the crime, prompt investigative efforts were
justified. Even though [the officer] had no other information to
link the Corvette or its occupants to the robbery, he could validly
stop the car and ask its occupants if they knew anything or had seen
anything that might aid [the officer]'s investigation of the crime
that had just been committed.
Beauvois, 837 P.2d at 1121. Similarly, in Metzker we held that the
police were justified in stopping a motor vehicle because a
passenger in that vehicle was thought to be an assault victim who
had just fled the police, who was intoxicated, and who was possibly
in need of medical treatment. [Fn. 19]
Comparing the facts of Castle's case to the facts of
Beauvois and Metzker, it is clear that no exigency supported the
officer's decision to detain Castle as a witness to a crime. True,
Castle was a witness to the fact that Browning had been driving a
car, but Browning's crime was over. Yamamoto was not investigating
an ongoing or recently committed unsolved crime, as was true in
Beauvois. Moreover, Yamamoto had personally observed the offense,
had apprehended the perpetrator, and had taken him into custody.
Yamamoto had no reason to believe that Castle possessed knowledge
that would materially aid the investigation of Browning's offense.
[Fn. 20] Nor was Yamamoto acting to ensure the health or safety of
a crime victim, as was true in Metzker.
For these reasons, we conclude that Yamamoto's seizure of
Castle can not be justified under the theory that Castle was a
witness to a crime.
The State's argument that Yamamoto could stop Castle because
Castle's sudden exit from the vehicle caused Yamamoto to reasonably
fear that Castle might assault him
The State argues that Castle's sudden exit from Browning's
vehicle caused Officer Yamamoto to reasonably fear that Castle might
assault him. This fear, the State contends, justified Yamamoto in
ordering Castle to remain at the scene and, when Castle disobeyed
this order, it justified Yamamoto's decision to conduct an
investigative stop to determine whether Castle was carrying any
weapons.
We can imagine circumstances in which a passenger's sudden
movements might raise a reasonable fear of imminent assault, thus
justifying an officer in frisking the passenger or in ordering the
passenger to remain where the officer can observe and control them.
But when Castle's suppression motion was litigated in the superior
court, the State did not suggest this as a justification for the
investigative stop. Moreover, the record fails to support the
State's assertion that Castle's actions raised a reasonable fear of
imminent assault.
In the superior court, Castle's suppression motion was
litigated on the pleadings; the State did not ask for an evidentiary
hearing. But even judging events from the description in the
State's own memorandum, the record fails to suggest that Castle's
actions caused Yamamoto to fear for his safety:
As [Officer] Yamamoto was taking Browning
back to the patrol car after arresting Browning, Castle got out of
[Browning's car] and came to the rear of it[,] where he stated, "I
need to leave." Officer Yamamoto told him to hold on just a moment.
He asked Castle to have a seat in [Browning's car] and told him that
he would be right back with [him].
According to the State's trial court memorandum, Officer Yamamoto
then turned his attention back to Browning. Yamamoto escorted
Browning to the patrol car, placed him inside, and then "went back
to contact Castle". Only then did Yamamoto realize that Castle had
departed.
The State's description of events which tracks Officer
Yamamoto's testimony at the grand jury does not suggest that
Castle posed any danger to Yamamoto, nor does it suggest that
Yamamoto apprehended any danger from Castle. In short, there is
nothing in the record to support the State's current assertion that
Yamamoto's actions were justified by concerns for officer safety.
Moreover, it must be remembered that Castle did in fact
leave the scene of the traffic stop. Castle was apparently trying
to put as much distance as possible between himself and the officer;
the seizure occurred only after Yamamoto tracked Castle down and
forcibly stopped him. By that time, any potential argument based
on officer safety had lost all its force. It was Yamamoto's choice
to initiate the second encounter with Castle. The State can not
justify Yamamoto's seizure of Castle by arguing that Castle might
have represented a potential danger to Yamamoto if both men had
remained at the scene of the traffic stop.
The State's argument that Yamamoto could stop Castle because
Castle violated municipal law by running in the middle of the street
Finally, the State argues that Yamamoto was justified in
stopping Castle because Castle violated a Fairbanks municipal
ordinance when he ran in the middle of the street.
Fairbanks General Code sec. 78-241 incorporates various
portions of the State's highway regulations. One of these state
regulations, 13 AAC 22.175(a) (b), requires pedestrians walking
along roadways to use a sidewalk if practicable or, if no
practicable sidewalk is available, to walk on the shoulder of the
road or, if there is no shoulder, to walk as near as practicable to
the outside edge of the road. The State argues that Castle violated
this regulation, and thus the corresponding municipal ordinance,
when he ran in the middle of the street to escape Officer Yamamoto.
According to the State, Castle's commission of this offense gave
Yamamoto probable cause to arrest Castle, even if Yamamoto had had
no justification for stopping Castle before that time.
As we explained above, when Yamamoto commanded Castle to
stay in the car and not to leave the scene of the traffic stop, this
amounted to a sufficient show of authority to be deemed a "seizure".
And because we have rejected the State's proffered justifications
for this seizure, we conclude that Yamamoto exceeded his authority
when he ordered Castle to remain at the scene. When Yamamoto later
located Castle and again directed him to stop and submit to
questioning, the officer still had no justification for this renewed
attempt to seize Castle. And it was Yamamoto's renewed attempt to
seize Castle that prompted Castle to run into the street in an
attempt to escape the officer.
Thus, to evaluate the State's argument, we must examine
and clarify a particular aspect of the exclusionary rule: When the
police violate the Fourth Amendment by unlawfully seizing or
unlawfully attempting to seize a person, and the person responds by
committing a crime, may the person be prosecuted for this crime
notwithstanding the prior illegality? Or is the crime to be deemed
a "fruit" of the police illegality, so that evidence of this crime
must be suppressed?
This issue is discussed by Professors LaFave, Israel, and
King in their treatise on criminal procedure. [Fn. 21] According
to LaFave, courts consistently uphold the admissibility of evidence
of an attempted bribe or a physical attack on the officer making the
illegal seizure. [Fn. 22] Courts often reach this result by
asserting that a bribe or a physical attack is "sufficiently [a
product] of free will to purge the taint" of the prior illegality.
But LaFave describes this rationale as "not particularly satisfying,
for it might be asked why the bribe offer is any more an act of free
will than an incriminating admission or [an] attempt to dispose of
the evidence, neither of which is per se untainted". [Fn. 23]
Instead, according to LaFave, "the answer [lies] in the underlying
deterrent purpose of the exclusionary rule":
Incriminating admissions and attempts to
dispose of incriminating objects are common and predictable
consequences of illegal arrests and searches, and thus to admit such
evidence would encourage such Fourth Amendment violations in future
cases. Bribery attempts [and physical attacks], by comparison, are
so infrequent and unpredictable that admission of evidence of such
criminal activity ... is not likely to encourage future illegal
arrests and searches [.]
LaFave, sec. 9.4(f), Vol. 3, pp. 380-81.
This court relied on this discussion (from the first
edition of the LaFave textbook) in Napageak v. State. [Fn. 24]
Napageak was charged with third-degree assault after he used a whale
gun to threaten a police officer who entered his home illegally but
peaceably. [Fn. 25] He argued that all evidence of this assault
should be suppressed because the assault was a fruit of the
officer's illegal entry. But this court rejected Napageak's
argument and affirmed his conviction, quoting LaFave and noting that
this result "finds support in virtually every decision discussing
the issue". [Fn. 26]
The law has not changed in the intervening fifteen years.
[Fn. 27] But, as the quoted passage from LaFave suggests, the
policy behind the exclusionary rule may call for a different result
when the defendant's crime is a predictable result of the police
illegality. The following three cases illustrate this principle.
In State v. Alexander [Fn. 28], the defendant failed to
stop at a police roadblock set up to catch drunk drivers. A police
officer gave chase, pulled Alexander over, and determined that he
was driving under the influence of intoxicants. [Fn. 29] Alexander
argued that the roadblock was illegal and that all evidence
resulting from his failure to stop at the roadblock should be
suppressed. The lower court agreed with Alexander that the
roadblock, as conducted by the police, had been illegal. But under
Vermont law, it is a crime to fail to stop when signaled to do so
by an identified police officer. [Fn. 30] Because Alexander violated
this law, the lower court upheld the police officer's stop of
Alexander's car and the admissibility of the resulting evidence of
his intoxication.
The Vermont Supreme Court acknowledged the cases holding
that defendants are not entitled to suppression of evidence that
they engaged in assaults or other life-threatening behavior (e.g.,
embarking on a high-speed chase) in response to an illegal search
or seizure. [Fn. 31] But the court concluded that if failing to
stop at the direction of a police officer "[were] to be treated as
a 'distinct' crime, ... the goal of the exclusionary rule,
controlling police misconduct, [would] not be served." [Fn. 32] If
a person who attempted to avoid an unlawful roadblock had no
recourse to the exclusionary rule, then
[p]olice could be less fastidious in
establishing roadblocks or could even make random stops of drivers
on less than probable cause, and when drivers failed, for whatever
reason, to stop, any evidence gathered at the illegal stop could not
be suppressed. The exclusionary rule requires more, and the state
cannot pass a statute that effectively eviscerates a constitutional
doctrine by "curing" an illegal police action.
Alexander, 595 A.2d at 285.
In People v. Felton [Fn. 33], a police officer tried to
illegally restrain the defendant as he walked along the street.
When Felton started to run away, the police officer grabbed his arm.
In response, Felton struck the police officer in the face and again
tried to get away. He was quickly subdued and arrested. During the
ensuing search of Felton's person, the police found several packets
of cocaine, and he was charged with possession of cocaine, resisting
arrest, and assault. [Fn. 34]
The New York Court of Appeals held that Felton was
entitled to suppression of the evidence against him. The court
upheld the lower court's finding that Felton's action in striking
the officer was "immediate, spontaneous, and proportionate to the
officer's [unlawful] attempt to lay hands on him[.]" [Fn. 35] Thus,
according to the New York high court, the taint of the officer's
initial illegal attempt to restrain Felton carried over to Felton's
ultimate arrest and the subsequent seizure of contraband from his
person. [Fn. 36]
The New York Court of Appeals reached a similar result in
People v. Cantor. [Fn. 37] Cantor was returning home at 3 o'clock
in the morning when he was surrounded by three plain-clothes police
officers who did not identify themselves. Cantor drew a pistol and
pointed it at the officers, but he put the weapon away when one of
the officers showed his badge. It turned out that the police did
not have sufficient justification for stopping Cantor, but it also
turned out that Cantor did not have a permit for his handgun, so he
was charged with a violation of the New York firearms laws. [Fn.
38]
Cantor argued that, because the police had had no reason
to stop him, the court should suppress all evidence relating to his
possession of the handgun. The Court of Appeals agreed. Implicitly
adopting the view that Cantor had acted reasonably and therefore
had committed no assault when he pulled his gun on the three
unidentified men who surrounded him in the middle of the night, the
court ruled that all evidence stemming from the illegal
investigative stop should be suppressed. [Fn. 39]
Although we have discussed Alexander, Felton, and Cantor
in some detail, we do not necessarily endorse the results in those
cases. To a large extent, the proper result in a particular case
will depend upon the facts of that case. But we do endorse the
principle espoused by LaFave and employed by the courts in
Alexander, Felton, and Cantor. When a defendant commits a crime in
response to an illegal search or seizure, the policy of the
exclusionary rule society's interest in deterring police
misconduct must govern any decision whether to admit or suppress
evidence of the defendant's crime.
As this court held in Napageak, the exclusionary rule does
not bar evidence of the defendant's responsive crime when that crime
is an assault on an officer making a peaceable, albeit unlawful,
entry. But the facts of Castle's case are considerably different.
Castle did not attack Officer Yamamoto. Rather, he ran down the
middle of the street at 3:30 in the morning in an attempt to get
away from the officer.
One of the major aims of the exclusionary rule is to deter
the police from engaging in the unlawful detention or restraint of
our citizens. Society's interest in deterring unlawful arrests and
investigative stops would be ill-served if the police could
unlawfully seize (or try to seize) someone, only to later justify
themselves by proving that the victim of this unlawful seizure ran
into the street, or crossed against a red light, or jaywalked, or
trespassed by running across municipal park land when it was closed,
or littered by throwing contraband to the ground. In such
instances, "[the] defensive action by the victim can fairly be
characterized as having been brought about by exploitation [of the
illegal conduct]." [Fn. 40] This being so, courts should apply the
exclusionary rule to deter the police from future similar
misconduct.
In Castle's case, we conclude that even if Castle broke
the law by running into the middle of the street, his conduct was
the direct result of Officer Yamamoto's unjustified attempt to seize
him. We further conclude that the policy of the exclusionary rule
would be undermined if we allowed Castle's conduct to form the
justification for his ensuing arrest and the search of his person.
Conclusion
The record does not support the State's arguments that
Castle could be temporarily detained at the scene of the traffic
stop, either because he was a witness to a crime or because he posed
a potential threat to officer safety. And we hold, as a matter of
law, that Castle's act of running into the street, in apparent
violation of state and municipal law, can not form the justification
for his arrest and the search of his person. Accordingly, the
cocaine found on Castle's person must be suppressed.
When Castle entered his no contest plea, the State
conceded that it had no case if this evidence was suppressed. The
judgement of the superior court is therefore REVERSED.
COATS, Chief Judge, dissenting.
I agree with the majority that Officer Gary A. Yamamoto
had no legal basis to detain Castle merely because Castle was a
witness. [Fn. 1] Since Officer Yamamoto had personally observed
Browning's offense, Officer Yamamoto had no basis to believe that
Castle was an important witness. But I disagree with the majority
that the record in this case establishes that Officer Yamamoto
conducted an illegal investigative stop.
The record in this case is very limited. The parties
agreed to have District Court Judge Sigurd Murphy decide this issue
based upon the grand jury testimony of Officer Yamamoto. According
to Officer Yamamoto's testimony, after he placed Browning under
arrest, he took Browning back to his patrol car. As he was taking
Browning back to the patrol car, the passenger, Donald L. Castle,
got out and stated, "I need to leave." Officer Yamamoto responded,
"Well, hold on just a moment. Why don't you have a seat in the car.
I'll be right back with you." Officer Yamamoto continued back
towards his patrol car, pat searched Browning, placed him inside the
patrol car, then returned to Browning's vehicle. Castle was no
longer there.
Officer Yamamoto went inside the Mapco station and asked
the clerk if he knew where the passenger (Castle) had gone. The
clerk told Officer Yamamoto that Castle had come in through the
front door and then gone out the side door. Officer Yamamoto went
back to the patrol car and drove around the neighborhood, hoping to
find Castle. After spotting Castle walking on the sidewalk down
23rd Street, Officer Yamamoto pulled up to him and stated, "Sir, I
need to talk to you for just a moment." At that point Castle started
running. Castle ran "out into the middle of the road, right in front
of [the] patrol car . . . and down 23rd [Street]."
Judge Murphy concluded that, up to this point, no seizure
had occurred. He found that the seizure occurred when Yamamoto
activated his overhead lights and later pushed Castle into the snow.
The majority concludes that Officer Yamamoto violated Castle's
rights when he asked him to remain at the scene for a moment and
later when he recontacted him and stated, "Sir, I need to talk to
you for just a moment." I agree with Judge Murphy and disagree with
the majority.
Castle was in Browning's car and was a witness to a crime.
It was reasonable for Officer Yamamoto to attempt to identify Castle
and to obtain a statement from him. It would be unprofessional and
foolish for Officer Yamamoto to fail to take these steps. As I have
previously stated, however, I agree with the majority that Castle
was not an important enough witness to justify ordering him to stay.
But, I agree with Judge Murphy's finding that Officer Yamamoto did
not order Castle to stay. According to Officer Yamamoto's
testimony, the only evidence we have before us, he politely
requested that Castle stay. I fail to see that this request was an
infringement of Castle's rights. After Castle left the scene,
Officer Yamamoto attempted to contact Castle in order to complete
his investigation. Again, I agree with Judge Murphy's finding that
Officer Yamamoto did not violate Castle's rights by driving up to
him and stating, "Sir, I need to talk to you for just a moment."
I fail to see why Officer Yamamoto could not contact Castle to
attempt to interview him as a witness. In addition, I fail to see
how Officer Yamamoto could approach Castle in a less intrusive
manner than he did.
The majority hinges its decision on the conclusion that
Officer Yamamoto violated Castle's Fourth Amendment rights by his
attempts to interview Castle. The majority concludes that because
Officer Yamamoto violated Castle's rights, "that even if Castle broke
the law by running in the middle of the street, his conduct was the
direct result of Officer Yamamoto's unjustified attempt to seize
him." I disagree that Officer Yamamoto violated Castle's rights,
thereby justifying Castle's illegal conduct.
According to Officer Yamamoto's testimony, after he told
Castle, "Sir, I need to talk to you for just a moment," Castle "ran
out into the middle of the road right in front of my patrol car and
started running [in the middle of the road] down 23rd." Yamamoto
chased Castle, and ultimately managed to stop him, finding drugs.
According to Judge Murphy's findings, "Castle began running into and
down the middle of the street. He continued this behavior which
created an imminent threat to his own safety and possibly the safety
of other drivers for several blocks." The state argues that Castle's
behavior of running down the street violated the law which requires
a pedestrian to walk on a sidewalk, or, in the absence of a
sidewalk, to walk on the edge of the roadway. [Fn. 2] The state
concedes that Officer Yamamoto did not use this justification for
the stop and Judge Murphy did not rely on this justification either.
But the state points out that there is authority which would permit
us to independently uphold the trial court's decision in spite of
the fact that this theory was never advanced in the trial court.
[Fn. 3] I am not sure it would be fair to uphold the trial court's
decision on this basis because the record is so limited and the
parties did not focus on this issue in the trial court. Castle had
a right to refuse to talk to Officer Yamamoto and to walk away. I
doubt that Officer Yamamoto could stop Castle for something as minor
as a jaywalking violation. However, if Castle's actions were more
serious and there was a significant independent ground for stopping
him, I see no basis for suppression. Since I conclude that the
record, findings, and briefing in this case are inadequate to
resolve this issue, I would remand to allow the parties to focus on
these issues.
FOOTNOTES
Footnote 1:
AS 11.71.040(a).
Footnote 2:
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Footnote 3:
See Gray v. State, 798 P.2d 346, 350 (Alaska App. 1990).
Footnote 4:
See Moreau v. State, 588 P.2d 275, 279-280 (Alaska 1978)
(barring egregious circumstances, search and seizure violations can
not be raised on appeal if they were not raised in the trial court).
Footnote 5:
Terry v. Ohio, 392 U.S. 1, 16; 88 S.Ct. 1868, 1877; 20 L.Ed.2d
889 (1968).
Footnote 6:
Ozhuwan v. State, 786 P.2d 918, 920 (Alaska App. 1990).
Footnote 7:
Waring v. State, 670 P.2d 357, 364 (Alaska 1983) (quoting Wayne
R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment
(1978), sec. 9.2, Vol. 3, pp. 53-54).
Footnote 8:
Rogers-Dwight v. State, 899 P.2d 1389, 1390 (Alaska App. 1995)
(quoting Florida v. Royer, 460 U.S. 491, 502; 103 S.Ct. 1319, 1326;
75 L.Ed.2d 229 (1983)).
Footnote 9:
Waring, 670 P.2d at 364.
Footnote 10:
See id.
Footnote 11:
See Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137
L.Ed.2d 41 (1997) (authority to order passengers out of the car);
Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331
(1977) (authority to order the driver out of the car).
Footnote 12:
See Maryland v. Wilson, 519 U.S. at 415 n.3; 117 S.Ct. at 886
n.3.
Footnote 13:
See State v. Mendez, 970 P.2d 722 (Wash. 1999) (decided under
the state constitution); Dennis v. State, 693 A.2d 1150 (Md. 1997)
(decided under the federal constitution).
Footnote 14:
See People v. Gonzalez, 704 N.E.2d 375 (Ill. 1998).
Footnote 15:
797 P.2d 1219 (Alaska App. 1990).
Footnote 16:
837 P.2d 1118 (Alaska App. 1992).
Footnote 17:
Metzker, 797 P.2d at 1221 (citation omitted).
Footnote 18:
Id. (listing cases).
Footnote 19:
See Metzker, 797 P.2d at 1220-21.
Footnote 20:
See Model Code of Pre-Arraignment Procedure (1975), sec.
110.2(1)(b). The text of this model code provision is quoted and
approved in Wayne R. LaFave, Search and Seizure (3rd ed. 1996), sec.
9.2(b), Vol. 4, p. 24.
Footnote 21:
Wayne R. LaFave, Jerold H. Israel, and Nancy J. King, Criminal
Procedure (2nd ed. 1999), sec. 9.4(f), Vol. 3, pp. 380-81.
Footnote 22:
See id.
Footnote 23:
Id.
Footnote 24:
729 P.2d 893 (Alaska App. 1986).
Footnote 25:
Napageak, 729 P.2d at 894.
Footnote 26:
Napageak, 729 P.2d at 895 n.2.
Footnote 27:
See, e.g., Jurco v. State, 825 P.2d 909, 914 (Alaska App. 1992)
(a person is not allowed to forcibly resist officers who have come
to seize property under a judicial decree, and the person can be
prosecuted for crimes arising from their use of force).
Footnote 28:
595 A.2d 282 (Vt. 1991).
Footnote 29:
Alexander, 595 A.2d at 283.
Footnote 30:
Alexander, 595 A.2d at 284.
Footnote 31:
Alexander, 595 A.2d at 285.
Footnote 32:
Id.
Footnote 33:
581 N.E.2d 1344 (N.Y. 1991)
Footnote 34:
Felton, 581 N.E.2d at 1344-45.
Footnote 35:
Felton, 581 N.E.2d at 1345.
Footnote 36:
See id.
Footnote 37:
324 N.E.2d 872 (N.Y. 1975).
Footnote 38:
Cantor, 324 N.E.2d at 875.
Footnote 39:
Cantor, 324 N.E.2d at 878.
Footnote 40:
LaFave, Criminal Procedure, supra, note 21, p. 381.
Concurring / Dissenting Opinion
Footnote 1:
See 4 Wayne R. LaFave, Search and Seizure sec. 9.2(b), at 24
(3d
ed. 1996).
Footnote 2:
In pertinent part, 13 Alaska Administrative Code (AAC) 02.175
provides:
(a) Where a sidewalk is provided and its use is
practicable, a pedestrian may not walk upon an adjacent roadway
except when crossing the roadway.
(b) Where a sidewalk is not available, a
pedestrian walking upon a highway shall walk on a shoulder as far
as practicable from the edge of the roadway. Where neither a
sidewalk nor a shoulder is available, a pedestrian walking on a
highway shall walk as near as practicable to the outside edge of the
highway and, if walking along a two-way roadway, shall walk only on
the left side of the roadway.
Fairbanks General Code Ordinance (FGCO) sec. 78.241 incorporates
this
provision.
Footnote 3:
McGee v. State, 614 P.2d 800, 805-06 n.10 (Alaska 1980); Snider
v. State, 958 P.2d 1114, 1117-18 (Alaska App. 1998).
