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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| BRUCE SCOTT McQUADE, | ) |
| ) Court of Appeals No. A-8754 | |
| Appellant, | ) Trial Court No. 3AN-02-8030 Cr |
| ) | |
| v. | ) |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) |
| ) | |
FORREST U. JOHNSTON, )
) Court of Appeals No.
A-8773
Appellant, )
Trial Court No. 3AN-02-8031 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
No. 2037 March 10, 2006
)
Appeals from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Sharon Barr, Assistant Public
Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant Bruce
Scott McQuade. Herman G. Walker Jr., Law
Offices of Linda A. Lim¢n, Anchorage, for
Appellant Forrest U. Johnston. Terisia K.
Chleborad, 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.
Bruce Scott McQuade and Forrest U. Johnston appeal
their convictions for first-degree robbery. McQuade and Johnston
contend that they were subjected to an illegal traffic stop, and
that all evidence stemming from that traffic stop should be
suppressed. For the reasons explained here, we conclude that the
traffic stop was justified because the police had reasonable
suspicion that McQuades and Johnstons vehicle was fleeing from
the scene of a just-committed robbery. We therefore affirm
McQuades and Johnstons convictions.
Underlying facts
At 2:43 a.m. on September 6, 2002, a
dispatcher with the Anchorage Police Department
notified officers that a robbery had just taken place
at the Williams gas station on Huffman Road, near the
New Seward Highway. The suspect was described as a
stocky white male, 56 to 58 tall, wearing dark blue
sweat clothes and a heavy dark jacket, with a white
cloth over his face. The dispatcher advised officers
that this individual had used a finger in [his] pocket
to imply possession of a gun. Because the store clerk
told the police that the robber had departed on foot,
the police dispatch did not contain a vehicle
description.
The description of the robber and his modus
operandi (i.e., the robbers use of an implied gun)
struck a chord with Police Sergeant Chris Sims. Sims
had assisted in the investigation of a similar robbery
at another gas station (the Chevron station located at
the corner of Fireweed Lane and the New Seward Highway)
one week earlier. This robbery remained unsolved.
However, during the investigation of the Chevron
robbery, a police dog had tracked the robbers scent to
a nearby parking lot, where the trail ended thus
leading the police to conclude that the robber had
entered a waiting vehicle.
Based on the locations of the two robberies
(gas stations situated along the New Seward Highway),
and working under the assumption that the Williams
robber had likewise fled to a waiting vehicle, Sergeant
Sims concluded that the robbery suspect would likely be
driving north on one of Anchorages two main north-south
arteries: Minnesota Drive or the New Seward Highway.
Sims decided to set up an observation post on the
Dowling Road overpass of the New Seward Highway, to
watch for north-bound traffic.
Approximately five to six minutes after the
robbery dispatch was broadcast, Sims positioned his car
on the Dowling Road overpass. During the three to four
minutes that followed, Sims observed fewer than ten
cars pass by going north. Then a small sedan caught
his attention. The car, which had been traveling at or
near the speed limit, slowed down as it approached his
patrol vehicle. Sims could see that the car had two
occupants: two white males with closely shaved heads.
These two men avoided looking at Sims, and neither of
them was wearing a seatbelt.
Sims decided to follow this sedan. He pulled
out into the left-hand lane of the highway, behind the
sedan. His intention was to catch up to the sedan and
more closely observe the cars occupants and their
clothing.
But as the two cars (the sedan and the police
patrol vehicle) approached the vicinity of the Tudor
Road exit, the sedan suddenly crossed [from the left-
hand lane] over into the right[-hand] lane and then
immediately [onto] the Tudor exit ramp. Sims later
could not recall whether the sedan signaled this abrupt
lane change, but he testified that, under the traffic
laws, drivers are required to signal for at least
100 feet before changing lanes and, here, the sedan
crossed two lanes within that short distance.
Sims stated that he believed the driver of
the sedan was trying to avoid him, and this behavior
heightened his suspicions. However, despite the
traffic violation (the failure to properly signal the
lane change and exit from the highway), Sims decided
not to pull the car over immediately because, at that
point, he believed he was dealing with something a lot
more significant than just a traffic violation.
As the two cars exited the New Seward Highway
onto Tudor Road, with the patrol car following the
sedan, Sergeant Sims observed the passenger in the
sedan moving around in his seat. Sergeant Sims radioed
his dispatcher that he believed the sedan was involved
in the Huffman Road gas station robbery, and that he
was looking for a well-lit place to conduct a traffic
stop.
At 2:56 a.m. that is, thirteen minutes after
the report of the robbery was broadcast Sergeant Sims
activated his emergency lights, called in the license
plate number of the sedan, and conducted a traffic stop
at the intersection of Tudor Road and Bragaw Street.
When Sims approached the drivers window, he
noticed that the passenger (later identified as Bruce
McQuade) was wearing dark blue sweat pants and a dark
blue sweat top. In addition, there was a heavy black
jacket lying on the back seat, and this jacket appeared
to be covering some items. The driver of the sedan was
identified as Forrest Johnston.
After seizing the sedan and obtaining a
search warrant, the police searched the vehicle and
found $60 in cash, including a distinctive $5 bill with
an orange stain that the Williams store clerk had said
was stolen during the robbery. The police also found
two pairs of gloves, a hat, a white T-shirt, and a navy
jacket.
After McQuade and Johnston were indicted for
first-degree robbery,1 they moved to suppress the
evidence found in the sedan. McQuade and Johnston
argued that Sergeant Sims had lacked reasonable
suspicion to stop them as robbery suspects, and that he
had lacked probable cause to stop them for a traffic
violation. In addition, Johnston (but not McQuade)
argued that the traffic stop was pretextual.
In response to this suppression motion, the
superior court Judge Larry D. Card held an
evidentiary hearing to investigate McQuades and
Johnstons claims. Sergeant Sims was the sole witness
at this hearing.
After hearing Simss testimony, Judge Card
denied the defendants motion to suppress. Judge Card
found that Sims had had a reasonable suspicion that the
occupants of the car were involved in the Huffman Road
gas station robbery. The judge also found that the
driver of the sedan had committed a traffic infraction
when he abruptly exited the New Seward Highway at the
Tudor Road off-ramp.
The traffic stop was based on reasonable suspicion that
one or both of the occupants of the sedan were involved
in the just-committed robbery
As explained above, Judge Card found both
that there was reasonable suspicion for the stop (based
on the recent robbery) and that the stop was justified
because the officer saw the driver of the sedan commit
a traffic infraction.
With regard to the traffic infraction, it
appears that Judge Card was correct. Under 13 AAC
02.200(a), a driver making a right turn must travel as
close as practicable to the right-hand curb or edge of
the roadway both during the approach to the turn and
while executing the turn (except when a traffic-control
device requires otherwise). According to Sergeant
Simss testimony, McQuades and Johnstons sedan was
traveling in the left-hand lane of the New Seward
Highway, and then it veered suddenly across the right-
hand lane and onto the Tudor Road exit ramp. This
maneuver appears to have violated 13 AAC 02.200(a).
We acknowledge that, according to the record
in this case, Sims did not subjectively rely on this
traffic infraction when he stopped the sedan. But if
Sims observed the driver of the sedan violating 13 AAC
02.200(a), it does not matter whether Sims subjectively
relied on this rationale for the traffic stop. As the
Court recognized in Hamilton v. State, 59 P.3d 760
(Alaska App. 2002), the State can rely on an after-the-
fact justification [for an investigative stop], so long
as the facts known to the officers at the time of the
... stop [were] sufficient to establish the legal
foundation for this justification. Id. at 764.
However, we are hesitant to definitively
resolve the issue of whether the driver of the sedan
(Johnston) violated 13 AAC 02.200(a); the parties do
not discuss this particular traffic regulation in their
briefs, and this regulation has not previously been
construed in a published Alaska appellate decision.2
Moreover, we conclude that we need not
resolve this issue, because we agree with Judge Cards
second rationale for upholding the traffic stop: Sims
had reasonable suspicion that one or both of the
occupants of the sedan were involved in the just-
committed robbery.
Under Alaskas Coleman test, a police officer
may perform an investigative stop i.e., temporarily
detain a person for questioning when the officer has a
reasonable suspicion that imminent public danger exists
or that serious harm to persons or property has
recently occurred.3 In this case, McQuade and Johnston
concede that the crime of robbery qualifies as a
sufficient harm to persons or property to satisfy the
Coleman test. However, McQuade and Johnston argue that
the police lacked reasonable suspicion that they or
rather, that the as-yet-unidentified occupants of the
sedan had anything to do with the just-committed
robbery.
To satisfy the reasonable suspicion standard,
an officer must have some minimal level of objective
justification for making the stop.4 This objective
justification must be something more than an inchoate
and unparticularized suspicion or hunch.5 The officer
must be able to point to specific and articulable facts
which, taken together with rational inferences from
those facts, reasonably warrant [the] intrusion.6
Here, one could argue that Sergeant Sims
began with just a hunch the hunch that the person or
persons who committed the robbery of the Chevron
station one week earlier had just robbed the Williams
station, and that the robbers would be driving away
from the scene of the robbery to the north (i.e.,
toward the center of Anchorage) along one of the major
north-south arteries.
However, events soon began to corroborate
Simss hunch. Traffic along the New Seward Highway was
sparse at three oclock in the morning, and McQuades and
Johnstons sedan passed by Simss Dowling Road
observation post approximately ten minutes after the
robbery was reported in other words, within the window
of time during which one might expect the robbers to
pass by. The sedan was occupied by two white males
which was consistent with the hypothesis that the sedan
contained the robber (described by the store clerk as a
white male) and a get-away driver.
The sedan slowed down as it passed Simss
patrol car suggesting that the driver had seen the
patrol car but the two men in the sedan did not look
at the patrol car (behavior that Sims found
noteworthy). In addition, the two men were not wearing
seat belts a possible indication that they had gotten
into the car in haste.
As we already described, as soon as the sedan
went past, Sims pulled his patrol car onto the highway
and began following the sedan as it traveled in the
left-hand lane. Sims was preparing to pull alongside
the sedan to get a better look at the driver and the
passenger when the sedan abruptly left the highway,
cutting across the right-hand lane and taking the Tudor
Road exit ramp (the very next exit as one proceeds
north from Dowling Road). Sims concluded that the
driver of the sedan was attempting to avoid his
scrutiny. Under the circumstances, this was a
reasonable conclusion.
Sims followed the sedan up the exit ramp and
then onto Tudor Road, headed east. Sims could see the
passenger moving around in his seat. At this point,
Sims advised his dispatcher that he believed the
occupants of the sedan were involved in the robbery,
and that he was preparing to stop the sedan as soon as
he arrived at a well-lit location which turned out to
be the intersection of Tudor and Bragaw.
Based on the observations and circumstances
we have just described, Sergeant Sims had more than an
inchoate and unparticularized suspicion or hunch that
the occupants of the sedan were involved in the
robbery. The timing of the sedans arrival at Simss
observation post on Dowling Road, the behavior of the
driver and the passenger when they saw Sims and his
patrol car, the sedans ensuing abrupt departure from
the highway, and the unusual movements of the passenger
as Sims continued to follow the sedan eastward on
Tudor, all combined to provide Sims with specific and
articulable facts that, given the recent commission of
a serious felony, warranted an investigative intrusion.
We therefore agree with Judge Card that the
investigative stop in this case was lawful under the
Coleman test. Judge Card properly denied McQuades and
Johnstons suppression motion.
Conclusion
The judgements of the superior court are
AFFIRMED.
_______________________________
1 AS 11.41.500(a)(1).
2 The sole reference to 13 AAC 02.200(a) in Alaska appellate
decisions occurs in Bruns v. State, Alaska App. Memorandum
Opinion No. 4690, p. 2; 2003 WL 1878981, *1 (April 16,
2003), where this Court held that a motorist violated this
regulation by making a right-hand turn from the left-hand
lane of the road.
3 Coleman v. State, 553 P.2d 40, 43 (Alaska 1976); see also
Waring v. State, 670 P.2d 357, 365 (Alaska 1983); Metzker v.
State, 658 P.2d 147, 149-50 (Alaska App. 1983).
4 In the Matter of J.A., 962 P.2d 173, 176 (Alaska 1998)
(internal citations omitted).
5 Id.; see also Gutierres v. State, 793 P.2d 1078, 1080
(Alaska App. 1990) (A reasonable suspicion is one that has
some factual foundation in the totality of the circumstances
observed by the officer in light of the officers
knowledge.).
6 Waring v. State, 670 P.2d 357, 365 (Alaska 1983), quoting
Terry v. Ohio, 392 U.S. 1, 21; 88 S.Ct. 1868, 1880; 20
L.Ed.2d 889 (1968).
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