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Reichel v. State (11/12/2004) ap-1955
Reichel v. State (11/12/2004) ap-1955
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
STEVEN D. REICHEL, )
) Court of Appeals No.
A-8555
Appellant, )
Trial Court No. 3HO-02-060 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1955 November 12, 2004]
)
Appeal from the Superior Court, Third Judi
cial District, Homer, Jonathan H. Link,
Judge.
Appearances: Brant G. McGee, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for the Appellant.
Timothy W. Terrell, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Gregg D. Renkes,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
In this appeal, we are asked to decide whether the
police can conduct an investigative stop if they have a
reasonable suspicion that a person is violating the conditions of
their parole. The defendant asserts that Alaska law does not
permit such an investigative stop unless the police are acting at
the direction of a parole officer. The State asserts that Alaska
law permits a stop to investigate a potential parole violation if
the conduct involved in the parole violation meets the Coleman-
Ebona test governing other investigative stops that is, if the
conduct involved in the parole violation creates an imminent
public danger, or if it involves recent serious harm to persons
or property. We conclude that we need not resolve this legal
dispute because, even under the States interpretation of the law,
the facts of this case did not justify the investigative stop.
Underlying facts
On the evening of October 28, 2001, Steven D.
Reichel was socializing at Alices Champagne Palace, a
bar and restaurant in Homer. Reichel was on parole
from a felony DWI conviction, and Reichels conditions
of parole forbade him from consuming alcohol and from
being on premises where alcoholic beverages are sold.
Homer Police Sergeant William Hutt was among
a group of police officers who went to Alices that
evening to perform a bar check. Hutt was personally
acquainted with Reichel from previous contacts and
arrests, including two or three arrests for earlier
probation violations. Shortly after Hutt spotted
Reichel, Reichel got up and left the bar.
Hutt suspected that Reichel was still on
probation, and that Reichel was therefore forbidden
from going to bars, so Hutt and his fellow officers
followed Reichel outside. At the same time, Hutt
called his dispatcher to request a records check on
Reichel. The police dispatcher confirmed that Reichel
was not supposed to consume alcohol or be on premises
where alcohol is served.
(Hutts suspicions were essentially correct,
with the exception that Reichel was no longer on
probation; rather, he was on parole. It was true,
however, that Reichels parole conditions forbade him
from going to bars.)
Hutt and his fellow officers stopped Reichel
outside the bar, and the officers held Reichel while
they attempted to contact his parole officer to ask
what to do. Within twenty minutes, the officers
succeeded in speaking with Reichels parole officer; the
parole officer directed the officers to arrest Reichel
for the parole violation. During a search of Reichels
person incident to this arrest, the police discovered
cocaine in his pocket. This discovery ultimately led
to Reichels conviction for fourth-degree controlled
substances misconduct.1
In this appeal, Reichel contends that the
police acted unlawfully when they stopped him and held
him outside the bar. Reichel concedes that he violated
the conditions of his parole by going into the bar, but
Reichel argues that this violation of parole was not a
sufficient justification for an investigative stop.
Reichels main arguments
Reichel argues that the investigative stop in
his case was illegal for two reasons.
First, based on the Alaska Supreme Courts
decision in Roman v. State,2 Reichel argues that police
officers have no authority to conduct a stop to
investigate a potential parole violation unless the
officers are acting at the direction of a parole
officer.
Second, Reichel argues in the alternative
that, even if police officers have independent
authority to conduct an investigative stop when they
have a reasonable suspicion that a parolee has violated
the conditions of parole, the investigative stop must
still conform to the Coleman-Ebona rule.
Under Alaska law, police officers authority
to conduct investigative stops is more restricted than
under federal law. In Coleman v. State3 and Ebona v.
State,4 our supreme court held that police officers can
conduct an investigative stop only if they have
reasonable suspicion that imminent public danger exists
or [that] serious harm to persons or property has
recently occurred.5
Reichel argues that even if the police
reasonably suspected that Reichel had violated his
conditions of parole by going to a bar and by drinking
alcoholic beverages, the police had no basis for
concluding that Reichels unlawful conduct had harmed
any person or property, nor any basis for concluding
that Reichels conduct created an imminent public
danger. Thus, Reichel contends, the officers exceeded
their authority under Coleman and Ebona when they
stopped him outside the bar.
The States argument that there was no investigative
stop
The States first response to Reichels
argument is that no investigative stop occurred that
the police merely approached Reichel outside the bar
and asked if they could speak to him. The State argues
that this was merely a generalized request for
information rather than an investigative stop.
Alaska law recognizes the difference between
investigative stops (which constitute seizures for
constitutional purposes) and police-citizen contacts in
which the police are merely seeking information without
engaging in a show of authority.6 Whether the police
engaged in an investigative stop or merely a contact
hinges on the facts of each particular case.7
In Reichels case, the superior court clearly
viewed the encounter between Reichel and the police
officers as an investigative stop a stop that ripened
into an arrest after the officers spoke with Reichels
parole officer. Even if the facts of that encounter
might reasonably be construed to support the States
contention that no stop occurred, the superior court
did not view the facts that way.
Of course, we are not bound by the superior
courts legal conclusion. If the facts of this case
even when viewed in the light most favorable to Reichel
showed that no investigative stop occurred, we would
have the authority to affirm the superior courts
decision on this alternative ground.8 But here, based
on the testimony presented at the evidentiary hearing,
the superior court could reasonably conclude that an
investigative stop occurred. We therefore have no
authority to re-evaluate that testimony and reach our
own independent decision on this issue.
The States argument that the investigative stop was
justified by a reasonable suspicion that Reichel was
about to drive while intoxicated
The State next argues that the investigative
stop was justified under the Coleman-Ebona rule. The
State points out that Reichel was on parole from a
conviction for felony driving while intoxicated. The
State argues that, because of Reichels criminal
history, and because the police found Reichel in a bar
(and observed Reichel leave the bar soon after Sergeant
Hutt spotted him), the officers had a reasonable
suspicion that Reichel had been drinking and that he
therefore posed an imminent danger to the public
safety.
(This was not the legal theory advanced by
Sergeant Hutt when he explained his reason for stopping
Reichel, nor is it the legal theory that the superior
court adopted when it upheld the investigative stop.
However, as explained above, we are authorized to
affirm the superior courts decision on any basis
revealed by the record.)
In support of this argument, the State relies
on our decision in Smith v. State, 756 P.2d 913 (Alaska
App. 1988). In Smith, a police officer observed the
defendant driving a motor vehicle; a locate bulletin
had been issued for this vehicle because the registered
owner of the vehicle had had their drivers license
suspended.9 The officer stopped the vehicle to find
out if the person he observed driving the vehicle was
indeed the registered owner whose license had been
suspended.10 It turned out that Smith was not the
registered owner but, by coincidence, Smiths drivers
license was also suspended, so the officer arrested
her.11
On appeal, Smith argued that the officer
violated the Coleman-Ebona rule when he stopped the
vehicle. Smith contended that even if the officer had
reasonable suspicion to believe that she was driving
with a suspended license, this offense did not pose the
imminent public danger required by Coleman and Ebona.12
We rejected this argument:
Drivers licenses may be suspended for a
variety of reasons that are generally related
to public safety. ... It may well be
correct, as Smith argues, that in many
situations licenses are suspended for reasons
having to do with a drivers inability to
establish financial responsibility. [And we
agree that] there is little reason to suppose
that a driver whose license has been
suspended for failing to provide proof of
insurance poses any imminent public danger.
Yet in many other situations, licenses
are suspended precisely because a driver has,
through past driving conduct or offenses,
demonstrated an actual inability to drive
safely. When a driver in this category is
behind the wheel, there is a legitimate basis
for concluding that there may be imminent
danger to other motorists. In most
situations that as in the present case an
officer who has a reasonable suspicion that a
motorist is committing the offense of
[driving with a suspended license] will not
know the underlying basis for the license
suspension. We believe that the level of
danger in such instances is sufficiently high
to permit a traffic stop.
Smith, 756 P.2d at 915-16.
The State argues that Reichels case is analogous to the
Smith case because the officers reasonably suspected
Reichel of drinking in the bar, and because Reichel had
a history of engaging in dangerous conduct (i.e.,
intoxicated driving) when he consumed alcoholic
beverages. But one aspect of Reichels case differs
from the facts of Smith: the testimony presented at
the evidentiary hearing gives no indication that
Reichel had driven to the bar or that Reichel intended
to drive when he left the bar.
Because the State did not rely on this impending DWI
theory when Reichels case was litigated below, the superior court
made no finding on the issue of whether the police had any
indication that Reichel was about to drive when he left the bar.
However, the testimony presented to the superior court strongly
suggests that Reichel did not intend to drive. Reichel took the
stand and testified that he called a taxicab before he left the
bar, and that when he walked out of the bar he intended to depart
in this cab. Reichel stated that he was about ten feet from the
cab when the officers stopped him. Sergeant Hutt testified that
he believe[d] there was a cab there when the officers stopped
Reichel, although Hutt disclaimed knowledge of Reichels precise
intentions with respect to this cab.
The State argues that an investigative stop was
justified even if there was no affirmative indication that
Reichel intended to drive. The State suggests that even if
Reichel intended to leave in a taxicab, the officers [who]
followed Reichel out of the bar ... had no way of knowing that he
would ... take a cab. The State further suggests that even if
Reichel had taken a cab, it is still possible that he would have
driven [another vehicle] once he reached a location ... safely
away from the officers.
But an investigative stop can not be grounded on a
police officers lack of knowledge as to whether a person might
commit an offense, or an officers speculation about a persons
proclivity to commit a future offense. Rather, it is the States
burden to show that the officers who performed the stop had
affirmative reasons to believe that an offense had just been
committed or was about to be committed.
In Reichels case, before the officers could stop
Reichel on suspicion that he was about to drive while
intoxicated, the officers had to have some affirmative reason to
believe (1) that Reichel was indeed intoxicated (as opposed to
having simply consumed an alcoholic beverage), and (2) that
Reichel was about to drive. The record is silent on the issue of
whether Reichel gave the officers any reason to believe that he
was intoxicated, and the record supports Reichels assertion that
he did not intend to drive.
The State argues that, even without affirmative
evidence that Reichel was intoxicated or that he intended to
drive, the police were entitled to stop Reichel simply because
they had reason to believe that he had been drinking and because
they knew that he had previously been convicted for driving while
intoxicated. The State contends that, under these facts, the
police could reasonably fear that Reichel might drive while
intoxicated in the near future.
But under the States theory, the police would have the
authority to conduct an investigative stop of any person with a
prior conviction for driving while intoxicated based merely upon
a reasonable suspicion that the person had consumed some amount
of alcohol at a social gathering. Moreover, applying the States
theory to the situation presented in Smith (i.e., situations in
which the police have reason to believe that a persons drivers
license has been suspended), the police would have the authority
to conduct an investigative stop of anyone whose drivers license
was suspended if the police saw that person walking through or
toward the parking lot of a shopping mall. This would be an
unwarranted and unconstitutional expansion of police authority
to conduct investigative stops.
For these reasons, we conclude that the investigative
stop in this case was not supported by a reasonable suspicion
that Reichel was about to drive while intoxicated.
The States argument that the investigative stop was
justified because the officers had a reasonable
suspicion that Reichel had just violated the conditions
of his parole
This brings us to the States third argument:
the argument that the investigative stop was justified
because the officers had a reasonable suspicion that
Reichel had just violated the conditions of his release
(by going into the bar). This is one of the theories
adopted by the superior court when the court denied
Reichels motion to suppress.
Under its violation of parole theory for
upholding the stop, the State argues that the Coleman-
Ebona rule should be construed to allow the police to
conduct investigative stops, not only when the officers
reasonably suspect recent or impending criminal
conduct, but also when they reasonably suspect a recent
or impending violation of probation or parole, so long
as this violation involve[s] conduct serious enough to
satisfy the Coleman standard i.e., so long as the
conduct creates an imminent public danger or it
involves [recent] serious harm to persons or property.
Reichel contends that the States argument is
foreclosed by the Alaska Supreme Courts decision in
Roman v. State, 570 P.2d 1235 (Alaska 1977). In Roman,
the supreme court held (as a matter of Alaska
constitutional law) that prisoners released on parole
have the same protections against government searches
and seizures as other citizens, except [when]
reasonably conducted searches and seizures are required
by the legitimate demands of correctional authorities,
and when the authority to conduct such searches and
seizures [is expressly] set forth [in the parolees]
conditions of parole by the Parole Board.13
The defendant in Roman had been granted
parole release from his sentence for possession of
heroin.14 Roman later violated his conditions of
release, but (following a hearing) the Parole Board
decided not to revoke his parole. Instead, Romans
parole officer drafted a series of supplemental
conditions of parole to govern Romans conduct in the
future.15 One of these conditions required Roman to
[s]ubmit [his] person, vehicle and dwelling to search
for contraband on demand by any parole officer or peace
officer.16
The supreme court held that this parole
condition was unconstitutional to the extent that it
purported to grant police officers independent
authority to require Roman to submit to a search:
The right to perform such searches is limited
to parole officers and peace officers acting
under their direction. ... [T]he
authorization for searches [in Romans case]
was too broad [because it subjected] Roman to
searches other than by or at the direction of
parole officers.
Roman, 570 P.2d at 1243 & n. 26. The supreme court added that,
[i]n the future, we believe that [any] conditions of parole
authorizing searches should be specified by the Parole Board
and [should] not [be] left to the discretion of individual
parole officers.17
These two aspects of the Roman decision are now
codified in AS 33.16.150. This statute governs the Parole
Boards authority to impose conditions of release on
prisoners who are paroled. Subsection (a) of the statute
lists twelve conditions of release that must be imposed on
all parolees. Subsection (b) of the statute then lists an
additional eleven conditions of release that the Parole
Board may, in its discretion, impose on a particular
parolee. Under subsection (b)(3), the Parole Board may
require a parolee to
submit to reasonable searches and seizures by
a parole officer, or [by] a peace officer
acting under the direction of a parole
officer[.]
Thus, subsection (b)(3) echoes the holding in Roman the
constitutional ruling that, except when acting at the direction
of a parole officer, police officers may not subject parolees to
searches or seizures that would be unconstitutional if performed
on the person or property of other citizens.
Based on Roman, Reichel argues that police officers can
not detain a parolee to investigate a suspected parole violation
unless either (1) the suspected parole violation involves conduct
that would constitute an independent crime, or (2) the officers
are acting at the direction of a parole officer. Thus, Reichel
reasons, the investigative stop in his case was unconstitutional.
We conclude that we need not resolve these issues
concerning the interplay between the Roman decision and the
Coleman-Ebona rule. As explained above, the State does not argue
that police officers are authorized to conduct an investigative
stop whenever they have a reasonable suspicion that a parole
violation is occurring or has just occurred. Rather, the State
takes the position that police officers are entitled to conduct
an investigative stop if they have a reasonable suspicion (1)
that a parole violation is occurring or has just occurred, and
(2) that the conduct involved in this violation of parole meets
the Coleman-Ebona test i.e., that the parole violation creates
an imminent public danger or it involves [recent] serious harm to
persons or property.
As we explained earlier in this opinion (when we
rejected the States argument that the police had a reasonable
suspicion that Reichel was about to drive while intoxicated), the
facts known to the police when they stopped Reichel did not
provide reason to believe that an imminent public danger existed
or that serious harm to persons or property had just occurred.
The officers knew that Reichel had just been inside the bar. They
might reasonably have suspected that Reichel had consumed
alcoholic beverages while in the bar. And they reasonably
suspected that Reichels conditions of release forbade him from
engaging in these activities. But these facts, even in
combination, do not amount to a reasonable suspicion that Reichel
posed an imminent danger to the public.
Thus, even under the States interpretation of the law
that is, even assuming that the Coleman-Ebona rule allows the
police to conduct investigative stops based on reasonable
suspicion of a serious parole violation the facts of Reichels
case would not support the investigative stop. For this reason,
we conclude that the parties various arguments concerning the
proper interpretation of Roman and the Coleman-Ebona rule are
moot.
The superior courts alternative rationale for upholding
the investigative stop
In addition to the theories that we have
already discussed, the superior court ruled that the
investigative stop was justified because Reichels
conditions of parole required him to submit to a breath
test or to a search for controlled substances at the
request or direction of any police officer. On appeal,
the State does not defend this rationale for the
investigative stop. As we explained in the preceding
section of this opinion, the Alaska Supreme Courts
decision in Roman v. State holds that these conditions
of Reichels parole are unconstitutional.
Conclusion
Reichels suppression motion should have been
granted. Accordingly, the judgement of the superior
court is REVERSED.
_______________________________
1 AS 11.71.040(a)(3)(A).
2 570 P.2d 1235 (Alaska 1977).
3 553 P.2d 40, 46 (Alaska 1976).
4 577 P.2d 698, 700 (Alaska 1978).
5 Coleman, 553 P.2d at 46.
6 See Howard v. State, 664 P.2d 603, 608 (Alaska App. 1983).
7 See Martin v. State, 797 P.2d 1209, 1214 (Alaska App.
1990).
8 An appellate court is authorized to affirm a lower courts
decision on any legal ground revealed by the record. See
Rutherford v. State, 605 P.2d 16, 21 n. 12 (Alaska 1979);
Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961); Millman v.
State, 841 P.2d 190, 195 (Alaska App. 1992).
9 Smith, 756 P.2d at 914.
10 Id. at 914-15.
11 Id. at 915.
12 Id.
13 Roman, 570 P.2d at 1237.
14 Id.
15 Id.
16 Id.
17 Id. at 1243-44.
