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Galimba v. Municipality of Anchorage (3/16/01) ap-1729
Galimba v. Municipality of Anchorage (3/16/01) ap-1729
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
RASCHAD GALIMBA, )
) Court of Appeals No. A-7444
Appellant, ) Trial Court No. 3AN-M98-8827 CR
)
v. ) O P I N I O N
)
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 1729 March 16, 2001]
)
Appeal from the District Court, Third Judicial
District, Anchorage, Gregory J. Motyka, Judge.
Appearances: Frederick T. Slone, Kasmar &
Slone, Anchorage, for Appellant. Carmen E.
ClarkWeeks, Assistant Municipal Prosecutor,
and Mary K. Hughes, Municipal Attorney, Anchorage, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
STEWART, Judge.
Raschad Galimba entered a plea of no contest to one count
of driving while intoxicated (DWI), a misdemeanor. [Fn. 1] Galimba
now appeals, arguing that field sobriety tests constitute searches
under the state and federal constitutions. He contends that
District Court Judge Gregory J. Motyka should have suppressed the
results of the field sobriety tests in this case (and all other
evidence discovered after the tests) because the police did not
have a search warrant, and no exception applied. [Fn. 2] For the
reasons set out below, we affirm.
Facts and Proceedings
On October 11, 1998, at approximately 2:46 in the
morning, Anchorage Police Sergeant Wayne L. Vance stopped Galimba
for a traffic violation and erratic driving. Vance testified
during an evidentiary hearing that he was on routine patrol that
night, when he saw a pick-up truck make a left turn from 5th Avenue
onto Gambell Street. He saw that the truck was in the left lane,
but made a wide and illegal left turn into the center lane to
go southbound on Gambell Street. Vance thought that the truck was
traveling fast for the turn, and made a "jerking movement." He
then saw the truck stop abruptly for a red light at 6th Avenue.
When the light changed to green, the truck accelerated rapidly, but
was again still making "jerky" movements in its lane. Vance
thought that the truck was about to run the light at 9th Avenue,
but again the truck stopped abruptly. When this light changed to
green, the vehicle proceeded, with similar "jerky" motions. Vance
then stopped the vehicle and contacted the driver Galimba.
Vance said that Galimba's truck "was jerking about the
lane, crossing the line. It was just jerking through the lanes.
It was weaving." Later, he clarified that Galimba "was . . .
weaving around his lane. I mean, he didn't go from . . . the
center lane all the way over into the the curb lane, nor from
that center lane to the middle lane. He didn't do that, but he was
weaving in his lane."
When Vance contacted Galimba, he told Galimba that he had
been stopped for swerving in the lanes. He asked Galimba if there
was anything mechanically wrong with his truck, or if he had been
drinking alcohol. Galimba said that he had had a "couple of
beers." When Vance asked Galimba to clarify what a "couple of
beers" was, Galimba said five or six. Vance also noticed that when
asked for his driver's license, Galimba "stopped talking to take
his license out. Very methodical movements, but that was all. And
that's an indication that you don't want to do two things at once."
Vance also said that he did not immediately notice
whether Galimba had any problems with his speech, or that, when
Galimba got out of the truck, whether he had any balance problems.
He also said that he did not notice any odor of alcohol. But,
because Galimba had exhibited poor driving, and had admitted that
he had consumed five or six beers, Vance decided to ask Galimba to
attempt field sobriety tests.
Anchorage Police Officer Brian L. Balega administered the
field sobriety tests. When conducting the horizontal gaze
nystagmus (HGN) test, Balega noticed a slight odor of alcohol
coming from Galimba. Galimba failed the HGN, and performed poorly
on other field sobriety tests the one-legged stand, and the walk-
and-turn. He was then arrested for DWI, and was transported to the
police substation on 5th Avenue for a breath test on the
Intoximeter 3000.
Before trial, Galimba moved to suppress the results of
the field sobriety tests and all evidence collected after the tests
were administered. Relying primarily on State v. Nagle, [Fn. 3] an
Oregon case, he argued that field sobriety tests are intrusive
enough to constitute a search; he claimed that since the police had
no warrant, the tests were per se unreasonable, unless some
exception applied. He also claimed that no exception could apply,
since the police did not have probable cause to arrest him when
they asked him to perform field sobriety tests. Judge Motyka
denied Galimba's motion.
In a written decision, Judge Motyka held that "an officer
is not required to have probable cause to administer field sobriety
tests." Judge Motyka also found that Nagle was not "controlling or
compelling." Galimba then brought this appeal.
Is probable cause to arrest required before police can
conduct field sobriety tests?
On appeal, Galimba relying primarily on Nagle [Fn. 4]
and People v. Carlson [Fn. 5] again contends that field sobriety
tests are searches, and that police must either have a warrant or
probable cause to arrest before conducting them. We recently
addressed a similar claim in McCormick v. Anchorage. [Fn. 6]
Relying upon the same cases that Galimba relies upon, McCormick
argued that field sobriety tests are searches for constitutional
purposes. We were not persuaded by these cases in McCormick.
In McCormick, we said:
McCormick argues that field sobriety
tests constitute a "search" for purposes of the Fourth Amendment to
the United States Constitution and Article I, Section 14 of the
Alaska Constitution. . . .
McCormick provides scant legal authority
to support his assertion that field sobriety tests are a "search".
He cites two cases from Oregon [Nagle and Lowe], but these were
decided under the Oregon Constitution. He also cites one decision
of this court [Leslie v. State [Fn. 7]] holding that a breath test
is a "search" for constitutional purposes.
Our own research shows that several state
courts (in addition to Oregon) have held that field sobriety tests
are "searches". But, with two exceptions, all of these states
treat field sobriety tests as a form of Terry [v. Ohio [Fn. 8]]
stop. Under this view, a police officer does not need probable
cause before asking a motorist to perform field sobriety tests.
Rather, the officer can conduct field sobriety tests based on a
reasonable suspicion that the motorist is driving while
intoxicated.[ [Fn. 9]]
Later again, not resolving this issue we responded to another
of McCormick's related claims and indicated that:
even if field sobriety tests are a "search",
it appears that McCormick's only Fourth Amendment right was the
right not to be asked to perform field sobriety tests unless the
surrounding circumstances had already given the officer a
reasonable suspicion that McCormick was driving while intoxicated.[[Fn. 10]]
Galimba relies on the same cases that McCormick did. But
as we noted in McCormick, the Oregon cases are based on the Oregon
Constitution. Like McCormick, Galimba also relies on Leslie v.
State. [Fn. 11] Leslie, however, does not support Galimba's
position. Although in Leslie this court construing a statute
regulating the use of preliminary breath tests held that police
need probable cause to arrest for DWI before administering a
preliminary breath test, we did not address the standard required
before conducting other more typical field sobriety tests. [Fn. 12]
And, in fact, in State v. Grier, [Fn. 13] we said that "[w]e agree
with the trial court that the HGN test is sufficiently reliable to
be considered with other field sobriety tests in determining
probable cause" thus implying that these tests would be
administered before the police have probable cause to arrest for
DWI. Thus, while breath tests are generally considered searches
for constitutional purposes, typical field sobriety tests,
including the HGN, are not. Our discussions in McCormick, Grier,
and Romo v. Anchorage [Fn. 14] confirm that, in Alaska, police do
not need probable cause sufficient for an arrest before requesting
typical field sobriety tests.
Galimba argues, alternatively, that, assuming reasonable
suspicion is required before conducting field sobriety tests, we
should overturn his conviction because Judge Motyka did not find
that the police had reasonable suspicion. However, Galimba argued
below that the police did not have probable cause to conduct the
field sobriety tests. It is clear from our review of Judge
Motyka's decision that by rejecting Galimba's probable cause
argument, and denying his suppression motion, Judge Motyka
implicitly found that the police had reasonable suspicion that
Galimba was DWI when they asked Galimba to perform field sobriety
tests. Based on our review of the record, we conclude that
Sergeant Vance had reasonable suspicion that Galimba was DWI based
on Galimba's traffic violation, his erratic driving, and his
admission that he had consumed five or six beers. Thus, assuming
(without deciding) that field sobriety tests are a form of a Terry
search that require reasonable suspicion, the tests in this case
were justified because Sergeant Vance had reasonable suspicion.
[Fn. 15]
Conclusion
The judgment of the district court is AFFIRMED.
FOOTNOTES
Footnote 1:
AMC 9.28.020.
Footnote 2:
Galimba preserved this issue when he entered his plea. See
Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Footnote 3:
880 P.2d 451, 455-56 (Oregon 1994).
Footnote 4:
Galimba also cites to another Oregon case, State v. Lowe, 926
P.2d 332, 335 (Oregon App. 1996).
Footnote 5:
677 P.2d 310, 317 (Colorado 1984).
Footnote 6:
999 P.2d 155, 159-60 (Alaska App. 2000).
Footnote 7:
711 P.2d 575, 576-77 (Alaska App. 1986).
Footnote 8:
392 U.S. 1 (1968).
Footnote 9:
McCormick, 999 P.2d at 160.
Footnote 10:
Id. at 161.
Footnote 11:
711 P.2d 575 (Alaska App. 1986).
Footnote 12:
See id.
Footnote 13:
791 P.2d 627, 631 (Alaska App. 1990).
Footnote 14:
697 P.2d 1065, 1069 & n.1 (Alaska App. 1985).
Footnote 15:
See Romo, 697 P.2d at 1069-70; see also Coleman v. State, 553
P.2d 40, 46 (Alaska 1976).
