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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| DARRELL LEE PETERSON, | ) |
| ) Court of Appeals No. A-8818 | |
| Appellant, | ) Trial Court No. 3KN-03-226 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2046 April 21, 2006 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Kenai, Donald D. Hopwood,
Judge.
Appearances: Krista Maciolek, Assistant
Public Advocate, Palmer, and Joshua P. Fink,
Public Advocate, Anchorage, for the
Appellant. Kenneth J. Diemer, 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.
Darrell Lee Peterson appeals his convictions for two
counts of fourth-degree controlled substance misconduct
(possession of cocaine and methamphetamine) and one count of
evidence tampering. He contends that the police obtained the
evidence against him during an illegal investigative stop.
For the reasons explained here, we conclude that the
challenged investigative stop was lawful, and we therefore affirm
Petersons convictions.
Underlying facts
In the early morning of February 2, 2002,
Kenai Police Officer Aaron Turnage was parked in his
patrol car, completing some paperwork. There was
another car parked in the same parking lot, about 100-
150 feet away. Turnage noticed some unusual movement in
the front seat of this car: according to Turnages
later testimony, there was somebody hunched over the
passengers seat, and there was some flailing ... going
on in the car. Turnage also observed someone moving
back and forth from the drivers seat to the passengers
seat in a very rapid manner.
Because this just ... didnt look like normal
activity, Turnage drove his patrol car closer to this
other vehicle. Hoping to approach unnoticed, Turnage
did not turn on his headlights or activate his overhead
lights. He parked about 20 to 40 feet behind the other
vehicle and called in its license plate to his
dispatcher, but this computer check revealed no
problems with the vehicle or the vehicles owner.
At this point, Turnage got out of his patrol
car and walked up to the other car, approaching on the
passengers side. When he looked through the window, he
saw a man and a woman. According to Turnage, the man
was hunched over the passengers seat, and he appeared
[to be] pressing th[e] female [passenger] into the
seat. He was on top of her. ... He was forcefully
kissing her on the head, neck, [and] face area.
Turnage could not discern how the female
passenger was reacting to this sexual activity, and he
was concerned that the man was committing a sexual
assault. Turnage walked around to the drivers side to
get the [man]s attention [and get] him off of [the
woman], so that Turnage could figure out what was
happening.
Standing by the drivers window, Turnage
turned on his flashlight, knocked on the window, and
identified himself as a police officer. Speaking
through the window, Turnage told the man that he needed
to speak with him. At first, the driver later
identified as Darrell Peterson refused to roll down
the window or open the car door. Instead, Peterson
responded by asking, What the fuck do you want? and
then declaring, Im not doing anything wrong.
Turnage explained to Peterson that it
appeared that he was forcing himself on the woman.
Peterson responded that the woman was his girlfriend,
and that their activity was consensual. However,
Turnage testified that, during his conversation with
Peterson, the woman just ... sat there, giving no
indication as to whether she agreed or disagreed with
Petersons characterization of the situation. The woman
neither confirmed nor denied that she was being
assaulted; she simply sat in the vehicle. When Turnage
asked the woman for identification, she did not furnish
it to the officer.
At some point during this interaction,
Turnage noticed that Peterson was holding a folded
dollar bill in his hand. The bill was folded into a
bindle that is, a small envelope commonly used to
carry drugs. Turnage saw that Peterson was passing
[this bindle] back and forth from hand to hand, very
quickly, in a nervous manner.
Still speaking to Peterson through the car
window, Turnage asked Peterson for identification.
When Peterson replied that he did not have any
identification, Turnage asked him for his name and
birth date. Peterson identified himself as Mike
Vinzant, and he said that his date of birth was July
17, 1984 a birth date that would have made Peterson
seventeen years old. Because Peterson appeared to be
considerably older than that (his real age was thirty-
four), Turnage concluded that Peterson was giving him
false information.
At about the same time that Peterson gave the
false name and false date of birth, he opened the car
door. At that time, Turnage asked Peterson about the
folded-up dollar bill in his hand whereupon Peterson
opened the bindle and shook it. A large quantity of
white crystalline powder cascaded from the bindle and
settled over the drivers seat and floorboard of
Petersons car. Peterson also let go of the dollar bill
itself; it blew away in the wind (although it was
eventually recovered).
Peterson got out of the vehicle and began
walking away. Turnage laid hands on him, attempting to
arrest him. Peterson slipped from Turnages grasp and
then punched Turnage in the face. Peterson also
punched a newly arrived backup officer before he was
finally restrained and placed in custody.
Procedural history
After the white crystalline powder was tested
and found to consist of cocaine and methamphetamine,
Peterson was charged with three felonies: two counts
of fourth-degree controlled substance misconduct, and
one count of tampering with evidence. In addition,
Peterson was charged with four misdemeanors: two
counts of fourth-degree assault, one count of resisting
arrest, and one count of providing false identifying
information to a police officer.
Peterson asked the superior court to suppress
the evidence of the drug offenses and the evidence
tampering. In his suppression motion, Peterson
contended that Turnage had lacked justification for
approaching his car, questioning him, and asking him to
open the car door or window. The superior court denied
this motion.
After the superior court denied his
suppression motion, Peterson pleaded no contest to all
of the charges against him. With respect to the three
felony charges, Peterson entered Cooksey pleas that
is, he pleaded no contest but reserved his right to
litigate the suppression issue on appeal.1 With
respect to the four misdemeanor charges, Peterson
entered normal pleas of no contest. (Peterson
accordingly does not appeal his convictions for these
misdemeanors.)
The validity of Petersons Cooksey pleas
This Court has repeatedly emphasized that a
Cooksey plea of no contest is not valid unless the
issue preserved for appeal is dispositive of the case.2
The State contends that Petersons Cooksey pleas are
invalid because the issue that Peterson preserved for
appeal the legality of the investigative stop is not
dispositive of all of the charges against Peterson.
The State argues that even if all evidence of the
controlled substances was suppressed, only the two
fourth-degree controlled substance misconduct
convictions would be dismissed. Peterson could still
lawfully be prosecuted for evidence tampering and the
misdemeanor charges of assault and resisting arrest,
and providing false identifying information.
(See Napageak v. State, 729 P.2d 893, 894-95
(Alaska App. 1986), where this Court upheld a
conviction for assaulting a police officer, even though
the assault was committed in response to the officers
unlawful entry into the defendants house. This general
topic prosecution for a crime that is committed in
response to an unlawful search or seizure is discussed
in Wayne R. LaFave, Jerold H. Israel, and Nancy J.
King, Criminal Procedure (2nd ed. 1999), 9.4(f), Vol.
3, pp. 380-81.)
The States challenge to Petersons Cooksey
plea is based on a misunderstanding of what happened in
the superior court in particular, what happened on
September 8, 2003, when Peterson agreed to enter his no
contest pleas.
Neither Peterson nor the State designated
this hearing for transcription; we were forced to
investigate the matter ourselves. Based on what
Petersons attorney said at this hearing, it is clear
that Peterson intended to enter unconditional pleas of
no contest to the four misdemeanor charges (two counts
of assault on the police officers, plus resisting
arrest and providing false information). Only
Petersons pleas to the three felonies (two counts of
controlled substance misconduct, plus tampering with
evidence) were intended to be Cooksey pleas.
We have held that it is improper for the
State and the defendant to agree to dismiss one or more
charges if the purpose for doing so is to make the
defendants appellate issue dispositive of the remaining
charges.3 But Petersons case does not present this
sort of charging manipulation.
Petersons attorney apparently concluded that
even if Peterson prevailed in his suppression argument,
the State would still be able to pursue the four
misdemeanor charges (two counts of assault, plus
resisting arrest and providing false information).
Accordingly, Peterson entered unconditional no contest
pleas to these charges. He preserved his right to
appeal only the two drug charges and the evidence
tampering charge. Thus, if Petersons suppression
argument is dispositive of these latter three charges,
his Cooksey plea is valid.
The State argues that even though Petersons
suppression argument is dispositive of the drug
charges, it is not dispositive of the evidence
tampering charge. But the States argument of this
point consists of a single conclusory sentence,
unsupported by any authority.
Moreover, the authors of Criminal Procedure,
supra, take the position that the exclusionary rule
should be construed to bar the government from
introducing evidence of a defendants act of evidence
tampering done in response to an illegal search or
seizure. The authors point out that attempts to
dispose of incriminating objects are common and
predictable consequences of illegal arrests and
searches, and they argue that if the government were
allowed to introduce evidence of such acts, this would
defeat the policy of the exclusionary rule by
encourag[ing] Fourth Amendment violations in future
cases.4
We need not definitively resolve this
question regarding the scope of the exclusionary rule.
Instead, it is sufficient for present purposes to point
out that (1) there is respectable authority for the
proposition that, if Peterson succeeded in his
suppression motion, the State would be barred from
pursuing the evidence tampering charge, and (2) the
State has failed to present any contrary authority.
For these reasons, we accept the Cooksey
agreement in this case, and we proceed to decide the
merits of Petersons suppression argument.
The investigative stop in this case was lawful
At the evidentiary hearing in this case,
Officer Turnage presented the testimony that we
described above, and Superior Court Judge Donald D.
Hopwood concluded that this testimony was credible.
Accordingly, when we assess the legality of Turnages
actions, we judge the evidence in the light most
favorable to Judge Hopwoods ruling.5
Turnage observed activity in a parked car
late at night (or, rather, early in the morning) that
was seemingly consistent with a sexual assault. To
investigate the situation, Turnage approached the car
but without a show of authority. He parked his patrol
vehicle some distance away, he approached the car on
foot, he tapped on the window and shined his flashlight
to get the drivers attention, and he stated that he
wanted to speak to the driver.
In Barrows v. State, 814 P.2d 1376 (Alaska
App. 1991), we confronted a similar encounter between a
police officer and a citizen, and we held that no
seizure had occurred. In Barrows, a police officer
approached a parked vehicle on foot, questioned the
driver briefly, and requested identification. Id. at
1377. We concluded that [a] reasonable person in [this
situation] would have felt free to refuse to comply
with this request, and we therefore held that the
officers actions did not amount to a seizure for Fourth
Amendment purposes. Id. at 1379.
We reach the same conclusion here. Officer
Turnages initial approach to Petersons vehicle, and his
initial contact with Peterson, did not amount to a
seizure. Indeed, Peterson obviously felt no compulsion
to comply with Turnages request for conversation
because Peterson responded by asking, What the fuck do
you want?
At this point, Turnage explained to Peterson
that it appeared that he was forcing himself on the
woman. This announcement conceivably altered the
constitutional tenor of the interaction: one could
argue that a reasonable person in Petersons position,
after hearing this, would no longer have felt free to
ignore Turnages request for information.
However, even if the encounter turned into an
investigative stop at this juncture, Turnages prior
observations of the activity in the car justified his
conduct in asking Peterson (1) to either roll down the
window or open the car door, (2) to provide
identification, and (3) to offer some explanation of
the situation.
Peterson refused to either roll down the
window or open the door. And, although Peterson
declared that he was engaged in consensual activity
with the woman in the car, the woman herself neither
said nor did anything to confirm Petersons assertion.
According to Turnage, the woman just ... sat there
leaving Turnage with unanswered doubts about the
situation.
When Turnage asked Peterson for
identification, Peterson replied that he had no
documentation with him, and then he gave Turnage a
birth date that was obviously false. At this point, we
believe that Turnage would have been justified in
directing Peterson to step out of the car.
As it turned out, however, Peterson emerged
from the car without any direct request from Turnage.
And, at essentially the same time, Peterson shook out
the contents of the bindle giving Turnage probable
cause to make an arrest.
For these reasons, we conclude that Judge
Hopwood correctly denied Petersons suppression motion.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska
1974).
2 See, for example, Tyler v. State, 24 P.3d 1260, 1261-62
(Alaska App. 2001); Miles v. State, 825 P.2d 904, 905
(Alaska App. 1992).
3 See Wells v. State, 945 P.2d 1248, 1249-1250 (Alaska App.
1997); Spinka v. State, 863 P.2d 251, 252 (Alaska App.1993)
(both holding that a Cooksey plea is invalid if the parties
agreed to dismissal of companion charges for the sole
purpose of making the defendants suppression motion
dispositive of the case).
4 LaFave et al., Criminal Procedure (2nd ed. 1999), 9.4(f),
Vol. 3, pp. 380-81.
5 Schaffer v. State, 988 P.2d 610, 612 (Alaska App. 1999).
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