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Way v. State (11/05/2004) ap-1954
Way v. State (11/05/2004) ap-1954
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
J. LEE WAY, )
) Court of Appeals No.
A-8633
Appellant, ) Trial
Court No. 4FA-02-3716 CR
)
v. ) O P I N I O
N
)
STATE OF ALASKA, )
)
Appellee. )
[No. 1954 - November 5, 2004]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Richard D. Savell,
Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K.
Brink, Public Defender, Anchorage, for
Appellant. Timothy W. Terrell, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
A state trooper thought he recognized a van which drove
by him as one belonging to the defendant, J. Lee Way. The
trooper had heard that Ways van contained a methamphetamine lab.
But when the trooper tried to read the license plate on the van,
he was unable to read it. The trooper had another officer stop
the van, and the troopers discovered the methamphetamine lab and
methamphetamine in the van. The State charged Way with
misconduct involving a controlled substance in the fourth degree
(for possession of methamphetamine). Way moved to suppress the
evidence discovered as a result of the traffic stop. The State
argued that the troopers could stop Way under a statute which
required vehicle license plates to be maintained in a location
and condition so as to be clearly legible. Way contends that the
troopers did not have probable cause to stop him for having an
illegible license plate and, alternatively, that the stop was
illegal because it was a pretext stop made only to allow the
police to investigate the methamphetamine lab tip. Superior
Court Judge Richard D. Savell found that the troopers had
probable cause to stop Way for having an illegible license plate
and that the troopers were entitled to stop Way when they were
unable to identify the van due to the illegible license plate.
We uphold Judge Savells decision.
Factual background
At around 1:50 a.m. on May 6, 2002, Alaska State
Trooper Patrick Johnson was called to assist in a welfare check
at an apartment complex on Bradway Road in Fairbanks. After
completing this task, Trooper Johnson was running checks on the
license plates of vehicles in the parking lot. Trooper Johnson
had previously requested backup for the welfare check, and
Trooper Raymond Evarts was on his way to the scene.
While waiting for Trooper Evarts to arrive, Trooper
Johnson observed a blue van traveling east on Bradway Road.
Trooper Johnson suspected that this van belonged to J. Lee Way.
Trooper Johnson had information that Ways van contained a
methamphetamine lab.
Trooper Johnson went out to the roadway to get a look
at the vans license plate. It was dark, and Trooper Johnson
attempted to use his flashlight to read the plate. Trooper
Johnson was about 25 to 30 feet from the plate when he tried to
read it. The trooper testified that the van was slowing down to
make a left-hand turn. However, the plate was bent upwards and
he could not determine the license number.
Trooper Johnson went back to his car and used his radio
to request Trooper Evarts to stop the van. Trooper Johnson
testified that he ordered the stop because the license plate was
illegible and he wanted to know whether the van belonged to Way.
He did not tell Trooper Evarts why he wanted the van stopped.
Trooper Evarts stopped the van, driven by Way, and Trooper
Johnson arrived at the scene shortly thereafter.
Trooper Johnson immediately detected the odor of iodine
coming from the van and noticed, in plain view, a small bag of
white powder, and items used in the manufacture of
methamphetamine. He obtained a search warrant and searched the
van. Although the State charged Way with a drug offense, the
State never charged Way with having an illegible license plate.
After the State indicted Way, he moved to suppress the
evidence found in the van. Judge Savell conducted the
evidentiary hearing. Trooper Johnson testified at the hearing.
Judge Savell concluded that Trooper Johnsons testimony
established that he had probable cause to believe that Way was in
violation of the statute which required vehicle license plates to
be maintained in a location and condition so as to be clearly
legible. He also concluded that there was no basis to find that
the stop was illegal based upon the contention that the stop was
a pretext to allow the police to investigate whether the van had
a methamphetamine lab. He concluded that because Trooper
Johnson had probable cause to believe that Way was violating the
law because his license plate was illegible, it did not matter if
the trooper subjectively had another reason to stop the van. He
also stated that it could not be said that the stop was
pretextual. He found that Trooper Johnson had a valid reason to
verify whether the van he saw was the van he was investigating by
doing a non-intrusive license plate check. When the trooper was
unable to do this check because the license plate was illegible,
the trooper was authorized to stop the van based on the license
plate violation.
Judge Savell did not err in finding that
Trooper Johnson had probable cause to stop
Way for having an illegible license plate
Alaska Statute 28.10.171(b) provides in pertinent part
that all vehicle license plates must be securely fastened to the
vehicle ... with the upper edge of the plate horizontal ... and
maintained in a location and condition so as to be clearly
legible.
Way contends that Judge Savell erred in finding that
Trooper Johnson had probable cause to stop him for having an
illegible license plate. But we are to uphold Judge Savells
findings of fact, including his findings concerning the
credibility of witnesses, unless they are clearly erroneous.
Judge Savell observed Trooper Johnson testifying at the hearing
and found his testimony credible. According to Trooper Johnsons
testimony, he was standing beside the roadway attempting to read
Ways license plate from a distance of 25 to 30 feet. He
testified that he normally would be able to see a license plate
from this distance and under these conditions, but he was unable
to read Ways license plate. It appears to be uncontested that
Ways license plate was mounted at an angle, which would violate
the statutes requirement that the plate be secured with the upper
edge of the plate horizontal. Furthermore, it appears to be
uncontested that the license plate was bent upwards. Way
contends that, even with these defects, the license plate was
legible. But Trooper Johnson testified that it was not. Judge
Savell accepted this testimony. Trooper Johnsons testimony
established probable cause to believe that Ways van was being
driven in violation of the statute.
Judge Savell did not err in determining that the stop
was not pretextual
Way argues that Trooper Johnson ordered the traffic
stop on his van to investigate whether Way was in possession of
drugs, not to enforce the statute which prohibited having an
illegible license plate. Way points to Brown v. State1 where the
supreme court stated that an arrest (or traffic stop) should not
be used as a pretext for a search.2 Way acknowledges that,
subsequent to this case, a unanimous United States Supreme Court,
in Whren v. United States,3 held that as long as an officer has a
lawful reason to make a traffic stop, the stop is permissible
under the Fourth Amendment to the United States Constitution.
In Whren, the Supreme Court held that the officers subjective
intent to use the traffic stop to enforce other laws, such as
laws prohibiting the possession of illegal drugs, is irrelevant
in determining the lawfulness of the stop. The great majority of
courts which have considered the issue have followed the
objective standard approved by the Supreme Court in Whren.4 But
Way points to the decision of the Washington Supreme Court in
State v. Ladson,5 where the court rejected Whren under the
Washington Constitutions broader privacy protections.6 The court
in Ladson concluded that if it allowed pretextual traffic stops,
Washington citizens would lose their privacy every time they
entered their automobiles.7 The court relied on authority which
suggested that almost every driver would violate some kind of
traffic regulation whenever they drove a car.8 The court held
that pretextual traffic stops violated the Washington
Constitution. The court concluded that in determining whether a
stop was pretextual, a judge should consider the totality of the
circumstances, including both the subjective intent of the
officer as well as the objective reasonableness of the officers
behavior.9 Way argues that this court should adopt the Ladson
reasoning under the Alaska Constitution.10
We do not need to determine whether to adopt Whren or
Ladson in order to decide this case. Judge Savells findings
directly reject Ways contention that Trooper Johnsons stop of his
van was a pretext. According to Trooper Johnsons testimony, he
had information that Way was driving a van which contained a
methamphetamine lab. When he saw a van that he thought might
belong to Way, he attempted to identify the van by reading the
license plate, but was unable to read the license plate because
it was illegible. He therefore told Trooper Evarts to stop the
van in order to identify it. Judge Savell concluded that since
Trooper Johnson was unable to identify the van to determine
whether it was the one about which he had information, and
because the obstacle to the identification was Ways violation of
the statute, Johnsons decision to have the van stopped to check
the license plates was not a pretext.
It is reasonable to assume that when the legislature
passed a statute requiring vehicle license plates to be clearly
legible, the legislature did so in large measure to allow police
officers to readily identify vehicles for legitimate law
enforcement purposes. Trooper Johnson testified that he wanted
to identify the van that went by him to determine if it was the
van that he had heard was involved in drug activity. This was a
legitimate law enforcement purpose. Trooper Johnson was
prevented from identifying the van because of Ways violation of
the license plate statute. Under these circumstances, he was
entitled to stop the van to identify it and to enforce the
license plate statute. We note that Way has not contended that
the police took any pretextual action to expand the stop into a
search for drugs. Way apparently concedes that, if the stop was
lawful, the police discovery of the drug evidence was also
lawful.
We note that the classic pretext search is one where
the police follow a suspect based on the theory, as set out by
the Ladson court, that the suspect will certainly commit a
traffic violation within a short period of time which will give
the police the opportunity to stop the suspect for the traffic
violation and then search the suspect and the vehicle. The case
before us is different. The police were not following Way and
waiting for a traffic violation. Rather, the police attempted to
identify Ways van and were unable to do so because Ways license
plate was not legible. Therefore, Ways violation of the statute
directly interfered with the ability of the police to identify
his van for legitimate law enforcement purposes. The facts in
this case simply do not support Ways allegation that this was a
pretextual stop. And we specifically reserve judgment on how we
would decide the pretext stop issue were it squarely presented to
us.
Conclusion
We conclude that Judge Savell did not err in concluding
that Trooper Johnson had probable cause to stop Ways van because
his license plates were not clearly legible. We conclude that
Judge Savell did not err in determining that Trooper Johnsons
stop of Ways van was not pretextual because the stop was based on
a legitimate law enforcement objective to identify the van. We
accordingly conclude that Judge Savell did not err in denying
Ways motion to suppress.
The judgment of the superior court is AFFIRMED.
_______________________________
1 580 P.2d 1174, 1175 (Alaska 1978).
2 Id. at 1176 (footnote omitted, citing Clark v. State, 574
P.2d 1261, 1265 (Alaska 1978); McCoy v. State, 491 P.2d 127, 138
(Alaska 1971)).
3 517 U.S. 806, 813, 116 S.Ct. 1769, 1776, 135 L.Ed.2d 89
(1996).
4 See People v. Robinson, 97 N.Y.2d 341, 349, 358-60 (N.Y.
2001) (collecting citations to cases in other jurisdictions).
5 979 P.2d 833 (Wash. 1999).
6 Id. at 837.
7 Id. at 842 n.10.
8 Id.
9 Id. at 843 (citation omitted).
10 See Alaska Constitution Article I 14; Article I 22.
