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before the opinion is published in the Pacific
Reporter. Readers are encouraged to bring
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| ILLYA D. BROWN, | ) |
| ) Court of Appeals No. A-8793 | |
| Appellant, | ) Trial Court No. 4FA-02-688 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) [No. 2023 January 13, 2006] |
| ) | |
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Mark I. Wood,
Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K.
Brink, Public Defender, Anchorage, for the
Appellant. Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Probation Officer Shaun Davies was looking for one of
his probationers, Richard Wolters, so that he could confront
Wolters about apparent violations of probation (failure to report
and use of controlled substances). Davies took up an early
morning surveillance outside Wolterss residence. He saw a man
emerge from the residence and get into a cab. Thinking that this
man was Wolters, Davies called for police assistance in stopping
the cab.
A Fairbanks police officer stopped the cab, and Davies
arrived on the scene moments later. But the passenger in the cab
was not the sought-for Wolters, but rather Illya Brown who,
coincidentally, was a felony parolee under Daviess supervision.
Shortly after Davies arrived, Brown ran away from the
scene of the traffic stop. But before he ran away, Brown dropped
a bag containing packets of cocaine and items of drug
paraphernalia.
Brown was indicted for possessing this cocaine with the
intent to distribute (third-degree controlled substance
misconduct under AS 11.71.030(a)(1)). He asked the superior
court to suppress the evidence against him, arguing that the
probation officer and the police officer had no authority to stop
the cab. After the superior court denied this motion, Brown
entered a Cooksey plea, reserving his right to renew his
suppression arguments on appeal.1
For the reasons explained here, we conclude that all of
Browns arguments are either unpreserved or meritless.
Accordingly, we affirm his conviction.
Underlying facts
In late December 2001, Probation Officer
Shaun Davies was trying to make contact with one of his
probationers, Richard Wolters. Wolters had apparently
violated the conditions of his probation by not staying
in contact with Davies and by using cocaine. (Wolters
had recently submitted a urine sample that tested
positive for cocaine.) Davies had been telephoning
Wolters and leaving messages for him, but Wolters had
not returned any of these calls.
In the early morning of December 28th
(sometime after 7:00 a.m.), Davies again telephoned
Wolters. A man answered the telephone, but he claimed
that he was not Wolters. The man told Davies that
Wolters had left for a doctors appointment.
Despite the mans claim that he was not
Wolters, Davies thought that he recognized Wolterss
voice. Suspecting that he was being tricked, Davies
decided to drive over to Wolterss residence to see
whether Wolters was truly not at home. Davies arrived
outside Wolterss residence at approximately 7:40 a.m..
A few minutes later, Davies observed a man emerge from
the residence and get into a cab. Davies could not see
this mans face because the man was wearing a hooded
outer garment and because the man was huddled over,
apparently holding things in his arms. However, given
the circumstances, Davies believed that this man was
Wolters, and that Wolters was again trying to avoid
contact with him.
Davies got into his car and began following
the cab. According to his later testimony at the
evidentiary hearing, Davies wished to make contact with
Wolters, ask him why he was avoiding Davies, and
conduct a search of his person. Davies also testified
that, based on Wolterss violations of his probation
Wolterss failure to report to Davies, and Wolterss
apparent use of cocaine (based on the test result of
his urine sample) Davies would have been authorized to
arrest Wolters. See AS 33.05.070(a).
While Davies was following the cab, he used
his cell phone to contact the Fairbanks Police
Department and request their help in stopping the cab.
In response to this request, Officer Perry J.
Williamson performed a traffic stop of the cab. Davies
was driving right behind Williamson when the traffic
stop was made, so Davies arrived on the scene only
seconds later.
Almost immediately, the passenger emerged
from the cab unbidden. When the passenger got out of
the cab and into the light, both Davies and Williamson
saw that this passenger was not Richard Wolters. (Both
men were acquainted with Wolters.) Instead, Davies
recognized the passenger as Illya Brown, a felony
parolee under his supervision.
Brown began talking to Officer Williamson,
but he also began backing up, with his right hand under
his coat. Williamson directed Brown to take his hand
out of his coat and to place his hands on the cab, but
Brown did not obey. At this point, Williamson drew his
side arm and directed Brown to stand still. In
response, Brown ran away.
Davies and Williamson chased Brown, but they
could not catch him. However, when the two officers
returned to the cab, they discovered a black knit bag
containing packets of cocaine and items of drug
paraphernalia.
Browns argument in the superior court and details of
the superior courts ruling
Following his indictment for controlled
substance misconduct, Brown asked the superior court to
suppress the black knit bag and its contents. In his
memorandum in support of the suppression motion, Brown
argued that even if Wolters had been the passenger in
the cab, Davies would have had no authority to stop the
cab (or to ask the police to stop the cab) unless
Davies had a reasonable suspicion that imminent public
danger existed or [that] serious harm to persons or
property ha[d] recently occurred the justification
required for investigative stops under the Alaska
Supreme Courts decisions in Coleman v. State and Ebona
v. State.2
In other words, Brown argued that Davies (a
probation officer) had no greater authority to conduct
an investigative stop of Wolters (a probationer under
his supervision) than the authority that any police
officer would possess to conduct an investigative stop
of any citizen. In the words of Browns memorandum,
Probation Officer Davies authority to supervise ...
Wolters provided him with no broader right to direct
[the police to stop the] cab ... than [the right]
articulated by Coleman ... . Brown further contended
that if the Coleman test was applied to the
circumstances of his case, there was no justification
for the stop of the cab because Davies had no suspicion
that ... Wolters ... was engaged in any form of illegal
conduct.
In two isolated sentences of his superior
court memorandum, Brown asserted that Davies had [no]
ability to identify ... the person he saw entering the
cab, and that Davies could not have believed that the
person he saw entering the cab was Richard Wolters.
But in both instances, immediately after asserting
this, Brown told the superior court that the accuracy
or reasonableness of Daviess identification was not
really the point:
But even assuming that [the] identification
[was] properly made, ... the stop was not
based [on] reasonable suspicion that
[Wolters] was engaging in illegal conduct,
[and thus] it was impermissible.
. . .
[N]o basis existed for stopping the cab, even
assuming that [Davies] legitimately believed
that Mr. Wolters was the passenger in that
vehicle. As a result, all evidence obtained
as a result of the traffic stop initiated at
Mr. Davies request should be suppressed.
(Browns superior court memorandum,
augmented by a later supplemental memorandum,
presented two additional arguments. First,
Brown argued that even if the stop of the cab
was lawful, there was no justification for
ordering Brown to place his hands on the cab
and remain at the scene after the officers
discovered that he was not Wolters. Second,
Brown argued that the officers could not
justify their actions by relying on Browns
own condition of probation (a condition
allowing warrantless searches of his person
and any vehicle under his control) because
that condition of Browns probation was
unconstitutional. Brown does not renew
either of these arguments in this appeal.)
Superior Court Judge Mark I. Wood
held an evidentiary hearing on Browns
suppression motion. At the end of this
evidentiary hearing, when the parties
summarized their positions, Brown renewed his
argument that the Coleman-Ebona test governed
the stop of the cab, and that the stop of the
cab was thus unlawful because Davies had no
independent basis to believe that any kind of
crime had been committed ... . [Davies]
simply was exercising ... his supervisory
powers to make contact with a probationer.
Brown also argued, essentially for
the first time, that the stop was invalid
because Davies could not reasonably have
mistaken Brown for Wolters:
Defense Attorney: Mr. Brown is a dark-
complected black male who is 64 tall and
weighs 235 pounds. Mr. Wolters ... is 57
tall and weighs 175 pounds[, and he] is a
Caucasian male. The dissimilarities between
[their] physical appearances ... are
staggering and ... undeniable. There is no
way that Mr. Brown ... and Mr. Wolters could
be mistaken for one another. Certainly,
there is no way that [such a mistake] could
have happened ... if [Davies had made] some
sort of reasonable effort ... to make an
identification[.]
Finally, Brown argued that even
though Wolterss conditions of probation
included a clause that made him (Wolters)
subject to suspicionless searches, this
condition of probation did not make Wolters
subject to suspicionless seizures (in this
case, the traffic stop). Brown asserted that
any seizure of his person had to meet the
Coleman-Ebona test even if that seizure was
performed by a probation officer attempting
to conduct an authorized suspicionless search
of Browns person. Browns attorney told the
court:
Defense Attorney: [T]his [was] a
seizure, and not a search [falling] within
the scope of [Wolterss probation condition].
It goes beyond any reasonable interpretation
of ... Mr. Wolterss [conditions of] probation
... . [N]o authority ... to effect a seizure
a traffic stop [arose] under the ...
conditions of probation to which Mr. Wolters
was subject.
. . .
The Court: Let me just ask you a
question. This is just thinking [out loud],
but it seems to me that the right to search
[a probationer] necessarily includes the
right to detain [the probationer] to
accomplish the search.
Defense Attorney: Well, Judge, I think
there is a ... significan[t] [difference]
between [this case and] circumstances where a
probation officer shows up after a stop has
been effected for [an independent] reason and
[the probation officer] instructs [a police]
officer to conduct a search pursuant to the
conditions of probation ... .
The Court: So you [assert] that a
probation officer who wanted to search a
probationer would not have the right to ask a
police officer to detain the probationer
under any circumstances?
Defense Attorney: Well, not unless ...
the police officer had an independent basis
for the initial [stop].
After hearing these arguments,
Judge Wood denied Browns suppression motion.
Judge Wood acknowledged that
Wolters and Brown did not look much like each
other. The judge declared that if [the two
men] were to stand directly side-by-side,
[nobody] would have any trouble telling them
apart. However, Judge Wood then indicated how
Davies might reasonably have mistaken Brown
for Wolters:
The Court: Mr. Davies was worried about
Mr. Wolters ... because Mr. Wolters had ... a
hot UA [i.e., a urine sample that tested
positive for drugs] [and] because it appeared
that Mr. Wolters was trying to avoid him. He
was [also] worried ... because he had called
up [Wolterss] house, and the voice that he
heard on the other end sounded similar to Mr.
Wolterss ... . [Davies] even called him on
it, and the guy denied [being Wolters]. But
Mr. Davies was convinced [that] it was Mr.
Wolters, and [that] Mr. Wolters was getting
ready to leave his residence. And so
[Davies] changed [his] clothes, went out to
Mr. Wolterss residence, and took up
surveillance [from at least 50] yards away.
. . .
[T]he upstairs apartment [we are talking
about] is covered and dark, and theres no
light ... at the top of the stairs. ...
[A]nd remember [that] this is December 28th
... , so were talking about dark winter in
Fairbanks at ... 7:40 in the morning. An
individual comes out of that upstairs
apartment, and ... a couple of seconds [later
hes] in the cab. Hes hooded and, you know,
everybody [looks] stocky in the winter ...
because of the nature of the clothing that we
wear. When youre wearing a hooded parka,
everybody looks stocky.
Judge Wood conceded that, had the
circumstances been a little different if
[Brown] had come out [of the apartment] with
somebody else, [so] there was some [point] of
reference ... to measure [his] height, [or]
if it [had been] summer, [so that] the man
didnt have a coat on then the judge might
well have granted Browns suppression motion.
Judge Wood stated that, if these other
circumstances had been present, [the defense
attorneys] excellent presentation on the
differences between Mr. [Brown] and Mr.
Wolters would have made a huge difference in
this case.
But Judge Wood concluded that,
given the dark, the distance, the winter
[clothing], the location, and the very brief
time that Mr. [Brown] was observed, Mr.
Davies in his mind ... thought it was Mr.
Wolters coming out [of the apartment and
getting into the cab].
Judge Wood then turned to Browns
argument that, even though a probation
officer might have the right to search a
probationer, a probation officer has no right
to stop and temporarily detain the
probationer in order to perform this search:
The Court: I disagree with [the defense
attorney]. I think that the right to search
also involves the right to reasonably detain.
[And] I think that the detention of the [cab]
was reasonable under the circumstances.
That is, Judge Wood concluded that Davies had
the authority to stop the vehicle in which
Wolters was riding, even in the absence of
particularized suspicion, simply to perform
the suspicionless search authorized by
Wolterss conditions of probation.
Judge Wood then held, in the
alternative, that the vehicle stop was
justified because Davies reasonably believed
that Wolters had violated the terms of his
probation:
The Court: Alternatively, I feel that
Officer Davies had a more than reasonable
suspicion that Mr. Wolters ... had violated
the conditions of his probation. [Wolters
was] a drug seller [who was convicted of]
misconduct involving controlled substances in
the third degree. [He had] a hot UA, [and he
was] having difficulties contacting his
probation officer. ... [Y]ouve got a
convicted felon in violation of his
probation, and ... thats a serious thing.
And thats the type of thing [that] we want
our probation officers stopping and
contacting [their] probationers about. And
so I think that theres reasonable grounds to
contact Mr. Wolters.
On these alternative grounds, Judge
Wood concluded that the traffic stop was
lawful.
(This was not the end of Judge
Woods analysis of the case, but his remaining
remarks were devoted to the additional
issues, described above, that Brown does not
pursue on appeal.)
Browns arguments on appeal, and our analysis of this
case
To analyze the legality of the stop in this
case, it is useful to begin with a hypothetical
situation in which Wolters was indeed the
passenger in the cab and Davies, acting without
police assistance, flagged down the cab in an
attempt to speak to Wolters about his recent
violations of probation and to conduct the search
authorized by Wolterss conditions of probation.
In his brief to this Court, Brown (now
represented by a different attorney) argues that
even when a probationer is subject to a probation
condition that seemingly authorizes a probation
officer to conduct suspicionless searches, a
probation officer has no legal authority to search
a probationer unless the officer has a reasonable
suspicion that the probationer is currently
engaged in criminal behavior.3
And, based on this assertion that Davies had
no authority to search Wolters, Brown concludes that
Davies (even if acting alone) had no authority to stop
the cab in which Wolters was believed to be riding:
Given that there was no clear legal authority [for Mr.
Davies] to search Mr. Wolters, there certainly was no
legal authority to rely on the search conditions [of
Wolterss probation] to ... seize a moving vehicle [in
which Wolters was riding].
Brown is wrong about the extent of Daviess
authority to search Wolters. Because Wolterss
conditions of probation authorized Davies to conduct a
suspicionless search, no particularized suspicion was
necessary. In Soroka v. State, 598 P.2d 69 (Alaska
1979), the Alaska Supreme Court declared:
If the conditions of [a persons]
probation [authorize] searches on demand ...
, no showing of probable cause [is]
necessary. [Citations omitted] Searches
authorized in connection with grants of
probation or parole may be executed without
the need for additional justification, as
long as they are reasonably conducted and not
made for purposes of harassment. Roman v.
State, 570 P.2d [1235,] 1242 and n. 19
[(Alaska 1977)].
Soroka, 598 P.2d at 71 n. 5 (citations omitted). See also State
v. James, 963 P.2d 1080, 1082 (Alaska App. 1998)
(recognizing and applying this aspect of the Soroka
decision).
Brown insists that the federal and the Alaska
constitutions prohibit suspicionless searches of
probationers, even when a condition of probation purports to
authorize such searches. But Brown does not mention Soroka
in his opening brief, nor does he mention Soroka in his
reply brief, even though the States brief explicitly relies
on the passage from Soroka that we have just quoted.
In any case, Browns argument is not preserved because
it was never made to the superior court. As explained above,
Browns trial attorney conceded that Wolterss conditions of
probation authorized suspicionless searches, but he argued that
the probation officers authority to engage in suspicionless
searches did not confer a corresponding authority to engage in
seizures (a vehicle stop or other form of investigative stop) to
conduct these searches. Judge Wood rejected this argument,
ruling that the right to search also involves the right to
reasonably detain.
Following Judge Woods ruling, Brown entered a Cooksey
plea that authorized him to renew, on appeal, the arguments that
he presented to Judge Wood. But Brown is not authorized to raise
new arguments.
We therefore turn to the argument that Brown did
preserve: the argument that even though a probation officer may
be authorized by the conditions of probation to conduct a
suspicionless search of a probationer, this authority does not
include the right to temporarily seize and detain the probationer
for the purpose of conducting the search.
For this proposition, Brown relies primarily on our
decision in Reichel v. State, 101 P.3d 197 (Alaska App. 2004).
In Reichel, we were confronted with a situation in
which police officers, acting independently of a probation
officer, performed an investigative stop of a probationer whom
the officers reasonably suspected of violating (or having just
violated) the conditions of his probation, but in a manner that
did not constitute a new crime. (The officers observed the
probationer in a bar, and they suspected that he had been
drinking.)4
In Reichel, the State took the position that police
officers have the authority (even when operating independently of
a probation officer) to perform an investigative stop of a
probationer if the suspected violation of probation meets the
Coleman-Ebona test: that is, if the violation of probation,
although not in itself a crime, nevertheless involves an imminent
public danger or recent serious harm to persons or property.5 We
ultimately concluded that we did not need to decide whether to
endorse the States proposed rule of law: under the facts of
Reichel, the Coleman-Ebona test was not met, and thus the States
argument was moot.6
Brown appears to contend (particularly in his reply
brief) that Reichel established the rule that police officers who
are acting independently of probation officers have no authority
to conduct an investigative stop of a probationer unless the
police have reasonable suspicion that the probationer is
violating (or has just violated) the law. (This is a mistaken
interpretation of Reichel: as we explained in the preceding
paragraph, Reichel does not decide this question.)
Brown then asks us to expand this purported rule so
that the same requirement (the requirement of reasonable
suspicion of a crime) would apply to probation officers and to
police officers acting at the direction of probation officers.
In other words, Brown argues that neither probation officers nor
police officers acting at their behest can subject a probationer
to a suspicionless investigative stop. Brown contends that even
when a probationers conditions of probation authorize a probation
officer to conduct a suspicionless search of the probationers
person, neither the probation officer nor police acting at the
probation officers direction are authorized to detain the
probationer in the absence of reasonable suspicion that the
probationer is violating (or has just violated) the criminal law.
The Alaska Supreme Courts decision in Roman v. State,
570 P.2d 1235 (Alaska 1977), indicates that Brown is wrong and
that Judge Wood was correct: a probation officers authority to
search carries with it the authority to temporarily detain the
probationer in order to conduct the search.
The defendant in Roman was on parole from a conviction
for possession of heroin. After Romans parole officer received a
tip that Roman had used heroin the day before, the parole officer
went to the Fairbanks airport (where Roman was waiting for a
flight) to obtain a urine sample from Roman. (Romans parole
conditions obliged him to provide urine samples when requested to
do so by a parole officer.) Enlisting the aid of another parole
officer and an airport security officer, Romans parole officer
detained Roman and took him to a restroom in an attempt to get
the urine sample. After Roman declared that he was physically
unable to provide the requested sample, the parole officer moved
Roman from the restroom to the customs area, where the parole
officer performed a search of Romans person.7
The supreme court upheld the legality of these actions.
In its decision, the court indicated that both the search and the
detention to perform the search were proper:
The right to request specimens for urinalysis
and to search [a parolee] and his quarters at
reasonable times and in a reasonable manner
to assure that he would not continue to
possess illegal drugs is necessary to the
proper functioning of the parole system. The
right to perform such searches is limited to
parole officers and peace officers acting
under their direction. It would appear that
all of these conditions were met in the
search of Mr. Roman; therefore, we cannot
find that the parole authorities were clearly
mistaken in authorizing the search and in
conducting it under these circumstances.
Romans inability to furnish a specimen for
urinalysis prevented use of that means of
ascertaining whether he was using drugs; and,
in view of his imminent departure, it was
reasonable to search his person at that time.
Roman, 570 P.2d at 1243 (emphasis added) (footnotes omitted).
Given the supreme courts decision in Roman, we conclude
that if a probationers conditions of probation
authorize suspicionless searches of the probationers
person, a probation officer who wishes to exercise this
authority has the concurrent right to stop and
temporarily detain the probationer in order to conduct
the search (subject to the limitations expressed in
Roman: that the search must be conducted at a
reasonable time and in a reasonable manner, and that
the search must not be conducted for the purpose of
harassing the probationer).8
Judge Wood expressly found that Daviess decision to
stop the cab was reasonable under the circumstances,
and this finding is supported by the record. Moreover,
there is no suspicion of harassment here. Judge Wood
found and Brown does not contest that Davies had
reasonable grounds for believing that Wolters was in
violation of his probation, both for failing to report
and for using drugs (because of the hot urinalysis).
We therefore hold that Davies could lawfully decide to
conduct a temporary investigative stop of the cab.
The next issue is whether Davies could lawfully enlist
the assistance of the police to help him conduct this
investigative stop. Brown appears to argue that even
if Davies might lawfully have conducted the
investigative stop himself, the stop became unlawful
when Davies asked the police to help him. That is,
even if the Coleman-Ebona test would not apply to
Daviess own actions, the cooperation of the police
triggered the Coleman-Ebona requirement.
Brown offers no legal authority in support of this
proposition (other than Reichel, a decision which we conclude is
not pertinent). And Browns argument is at odds with the accepted
law in this area:
[We turn now to the question of] whether
the less demanding Fourth Amendment limits
[that apply to searches conducted by
probation and parole officers] apply even
when there was some police involvement in the
activity ... .
Generally, ... searches of probationers
and parolees [that do not conform] to usual
Fourth Amendment standards have been upheld
notwithstanding the fact that there was some
degree of cooperation or joint participation
by the police and a probation or parole
[officer]. There is little reason to
question this result when the facts show that
[the] police participation was brought about
at the instigation of the probation officer
or parole officer, for [the officer] may
enlist the aid of police officers in
performing his duty.
Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment (4th ed. 2004), 10.10(e), Vol. 5, pp. 470-71 (internal
citations omitted).
As the Eighth Circuit recently declared in United
States v. Brown, 346 F.3d 808 (8th Cir. 2003), [T]he Fourth
Amendment does not require probation officers to choose between
endangering themselves by searching alone [or, alternatively,]
foregoing the search because they lacked the resources and
expertise necessary to search alone safely.9 We believe that
this principle is particularly apt when the probation officers
search requires the investigative stop of a motor vehicle.
We note that, in Roman, the parole officer enlisted the
aid of the airport security police; the supreme court never
indicated that the participation of airport security officers
altered its analysis of the case in any way.
Accordingly, we hold that Daviess decision to enlist
the aid of the police in effecting the stop of the cab did not
alter the legality of the stop.
Finally, Brown argues that the stop of the cab was
illegal because Davies did not have probable cause to believe
that it was Wolters (his probationer) who emerged from the
apartment and got into the cab.
This argument was not presented to Judge Wood. From
the beginning, it was obvious that Davies had made a mistake
concerning the identity of the man in the cab. But, as explained
above, Browns written pleadings barely mention Daviess mistake.
Only two isolated sentences of Browns memorandum refer to this
mistake and, in both instances, the reference is immediately
followed by an assertion that Daviess mistake was irrelevant to
the decision of Browns suppression motion.
We acknowledge that Browns argument changed at the
close of the evidentiary hearing. When Browns attorney argued
the suppression motion orally at the end of the hearing, he
expressly asserted that the stop of the cab was unjustified
because Davies acted unreasonably when he concluded that Wolters
was the man he had seen get into the cab. Specifically, the
defense attorney told Judge Wood: There is no way that Mr. Brown
... and Mr. Wolters could be mistaken for one another.
Certainly, there is no way that [such a mistake] could have
happened ... if [Davies had made] some sort of reasonable effort
... to make an identification[.]
But, as explained above, Judge Wood rejected the
defense attorneys contention; the judge found that, under the
circumstances, Daviess mistake was reasonable. Judge Wood noted
that Davies reasonably expected that it would be Wolters who
emerged from Wolterss residence at 7:40 in the morning. And when
the man did come out of Wolterss apartment and got into the cab,
Davies got a glimpse of him for only a couple of seconds.
Moreover, it was dark, and Brown was wearing heavy winter
clothing that hid his face and concealed his physique.
Thus, the record shows that Judge Wood found that
Davies acted reasonably that Davies had at least a reasonable
suspicion that the man he saw get into the cab was Wolters, the
probationer who had been avoiding him and who had recently
submitted a dirty urine sample.
Brown argues that, given the facts of this case, Judge
Woods resolution of this issue was erroneous. Brown asserts that
Davies unreasonably jumped to the conclusion that the man who
came out of Wolterss apartment was indeed Wolters. Brown argues
that Davies should have done more to verify the identity of this
man before he requested that the police stop the cab.
After reviewing the record, we conclude that the facts
of this case (viewed in the light most favorable to Judge Woods
ruling) adequately support the judges ruling that Daviess mistake
was reasonable under the circumstances that Davies reasonably
(albeit erroneously) suspected that the man who emerged from the
apartment and got into the cab was Wolters.
Brown argues, in the alternative, that a reasonable
suspicion was not enough to justify Daviess actions that
probable cause was required. But the words probable cause are
found nowhere in Browns trial court pleadings or in the argument
that Browns trial attorney presented orally to Judge Wood at the
close of the evidentiary hearing. Browns trial attorney never
argued that probable cause was the legal test to be applied to
Daviess level of knowledge concerning the identity of the man in
the cab. Instead, as just explained, Browns trial attorney
argued that Davies had acted unreasonably, and Judge Wood
rejected that argument.
The record therefore indicates that Brown failed to
preserve his argument that the proper standard is probable cause.
However, at oral argument, Browns appellate attorney asserted
that the probable cause argument was indeed preserved because (1)
Browns trial attorney argued to Judge Wood that the applicable
standard was absolute certainty, and thus (2) probable cause was
merely a lesser version of this proposed standard.
There is nothing in the record to support this
contention. Browns trial attorney never argued that the State
was obliged to prove that Davies was absolutely certain that the
man in the cab was Wolters. (Such an argument would have been
notable: we are aware of no issue of fact to which an absolute
certainty standard of proof applies. Even criminal convictions
need not be proved to an absolute certainty.) Rather, as
explained above, Browns attorney argued that Daviess mistake of
fact was unreasonable.
Judge Wood was never asked to consider (much less
decide) the separate contention that, even if Davies reasonably
suspected that the man in the cab was Wolters, Daviess level of
knowledge failed to amount to probable cause. For this reason,
we conclude that this argument was not preserved for appeal.
At oral argument, Browns appellate attorney raised one
additional contention: she asserted that Judge Wood never
actually found that Daviess mistake was reasonable i.e., never
found that Davies acted reasonably when he concluded that Wolters
was the man he saw get into the cab.
It is true that Judge Wood never used these exact
words. But when Judge Woods remarks are read in the context of
the argument to which he was responding (the argument that
Daviess mistake was unreasonable), it is obvious that Judge Wood
was explaining why he rejected this argument and why he
concluded, instead, that Davies had acted reasonably.
We further note that Browns current argument (that
Judge Wood made no such finding) is at odds with the content of
Browns opening brief. Browns brief repeatedly adopts the view
that Judge Wood did, in fact, rule that Daviess mistake was
reasonable.
In Paragraph II of the Issues Presented section of the
opening brief, Browns appellate attorney frames the issue as
whether Judge Wood erred when [he] found that the [probation]
officer had made a reasonable mistake in concluding that his
[probationer] was in [the] vehicle[, given the fact that] the man
in the vehicle [i.e., Brown] was a large black man [while] the
person who was the target of the [probation] officers interest
[i.e., Wolters] was a small white man.
In the Statement of the Case section of the brief,
Browns attorney likewise declares that Judge Wood found that the
probation officer was mistaken that the individual in the cab was
Mr. Wolters, but that the mistake was understandable given the
[circumstances].
And, finally, in Part II of the Argument section of the
brief, Browns appellate attorney states that the trial court
found that Mr. Daviess conclusion that it was Mr. Wolters in the
cab, although mistaken, was nonetheless reasonable. Later in
that same section, Browns attorney declares that [Judge Woods]
conclusion that Mr. Davies had been reasonable in his efforts to
determine who was in the cab is wrong. [Daviess] actions were
not reasonable.
In other words, to the extent that Brown now argues
that Judge Wood never found that Davies acted reasonably when he
mistook Brown for Wolters, this contention was raised for the
first time at oral argument, and it is therefore waived.10
Conclusion
We have considered all of Browns arguments,
and we have concluded that they are either meritless or
unpreserved. Accordingly, the judgement of the
superior court is AFFIRMED.
_______________________________
1Cooksey v. State, 524 P.2d 1251 (Alaska 1974).
2Coleman, 553 P.2d 40, 46 (Alaska 1976); Ebona, 577 P.2d
698, 700-01 (Alaska 1978).
3Browns brief asserts: [Judge Woods] reliance on the ...
probation conditions imposed on Mr. Wolters [is]
problematic in that, even if Mr. Wolters had been
personally contacted by Mr. Davies, there does not
appear to be any legal authority to support a search of
Mr. Wolterss person, residence, or vehicle unless there
was reasonable suspicion of criminal activity. Mr.
Davies had no information that Mr. Wolters was
currently engaging in criminal activity on the day that
Mr. Davies directed that the [cab] be stopped.
4Reichel, 101 P.3d at 198.
5Id.
6Id. at 202-03.
7Id. at 1237-38.
8Roman, 570 P.2d at 1242.
9Brown, 346 F.3d at 812.
10Kellis v. Crites, 20 P.3d 1112, 1114-15 (Alaska 2001);
Edwards v. State, 34 P.3d 962, 969-970 (Alaska App. 2001).
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