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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
| RALPH KERMIT WINTERROWD 2ND, | ) |
| ) Court of Appeals Nos. A-9233 & A-9234 | |
| Appellant, | ) Trial Court Nos. 3AN-04-4649, |
| ) 3AN-05-3893, & 3AN-05-3894 MO | |
| v. | ) |
| ) | |
| MUNICIPALITY OF ANCHORAGE, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 2050 June 23, 2006 |
| ) | |
Appeal from the District Court, Third Judi
cial District, Anchorage, Jennifer K. Wells,
Magistrate.
Appearances: Ralph Kermit Winterrowd 2nd, in
propria persona, Knik, for the Appellant.
Rachel Plumlee, Assistant Municipal
Prosecutor, and Frederick H. Boness,
Municipal Attorney, Anchorage, for the Appel
lee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
On January 3, 2004, and again on October 11, 2004,
Ralph Kermit Winterrowd 2nd was stopped for speeding. On both
occasions, the police asked Winterrowd to produce his drivers
license, his vehicle registration, and proof of motor vehicle
insurance.
During the January 3rd traffic stop, Winterrowd
produced his drivers license and registration, but he did not
produce proof of insurance. Instead, Winterrowd invoked his
privilege against self-incrimination and his right to the
assistance of counsel under the Fifth Amendment to the United
States Constitution. Because Winterrowd did not produce proof of
motor vehicle insurance, he was cited for violating Section
09.28.030(B)(1) of the Anchorage Municipal Code (failure to carry
proof of motor vehicle insurance).
During the October 11th traffic stop, Winterrowd
produced his drivers license, but he did not produce his vehicle
registration or proof of insurance. Again, Winterrowd invoked
his Fifth Amendment privilege against self-incrimination and
right to counsel. This time, Winterrowd was cited for failing to
produce proof of motor vehicle insurance upon the demand of a
police officer, AMC 09.28.030(B)(2), and for failing to carry
motor vehicle registration, AMC 09.52.020.
These three charges were jointly adjudicated in a
single bench trial in the district court. At his trial,
Winterrowd argued that, because he was subjected to a seizure of
his person within the meaning of the Fourth Amendment, and
because he thereafter invoked his privilege against self-
incrimination and his rights to silence and to the assistance of
counsel under the Fifth Amendment, he could not be penalized for
failing to produce the documentation that the officers asked him
for. The district court rejected this argument and found
Winterrowd guilty of all three offenses.
Winterrowd now appeals his convictions, renewing the
constitutional argument that he presented to the district court.
Winterrowd is correct that a motorist who is subjected
to a traffic stop is seized for Fourth Amendment purposes.
However, not all Fourth Amendment seizures amount to custody for
purposes of Miranda v. Arizona.1 That is, not all Fourth
Amendment seizures trigger the Fifth Amendment rights to silence
and to the assistance of counsel recognized in Miranda.
We addressed this point of law in McNeill v. State, 984
P.2d 5 (Alaska App. 1999):
Generally, in determining whether a
person is in custody for Miranda purposes, a
court must ask whether, under the
circumstances of the police interaction with
the suspect, ... a reasonable person [would]
have felt free to break off the interrogation
and, depending on the location, either leave
or ask the police to leave. [quoting Long v.
State, 837 P.2d 737, 740 (Alaska App. 1992)]
... This wording suggests that Miranda
warnings will be required whenever a person
is seized for Fourth Amendment purposes, but
that is not the law. The cases applying
Miranda recognize that there are some Fourth
Amendment seizures of temporary duration
most notably, routine traffic stops and other
investigative stops in which Miranda
warnings are not required, even though the
person is temporarily in custody and the
police can properly ignore a request that the
officers depart and leave the person alone.
McNeill, 984 P.2d at 6-7 (emphasis omitted), citing Berkemer v.
McCarty, 468 U.S. 420, 439-440; 104 S.Ct. 3138, 3150; 82 L.Ed.2d
317 (1984) (holding that Miranda does not apply when a motorist
is subjected to roadside questioning during a routine traffic
stop); Blake v. State, 763 P.2d 511, 514-15 (Alaska App. 1988)
(holding that police officers are not required to give Miranda
warnings during an investigative stop unless and until the
initial stop ripens into custody as that term is defined in
Miranda jurisprudence). See also Wayne R. LaFave, Search and
Seizure: A Treatise on the Fourth Amendment (4th ed. 2004),
9.3(b), Vol. 4, pp. 367-377.
In his reply briefs, Winterrowd asserts that he is not
attempting to raise a Miranda issue. Instead, Winterrowd
asserts, he is relying on the Fifth Amendment rights to silence
and to the assistance of counsel that the law gives him apart
from Miranda. But in roadside encounters like the ones in these
cases, there is no Fifth Amendment right to silence or to counsel
apart from situations of custodial interrogation as defined in
Miranda jurisprudence. See State v. Garrison, 128 P.3d 741, 747
(Alaska App. 2006) (holding that, because the defendant was not
in custody for Miranda purposes, the police could continue to
question him despite his arguable request for an attorney).
Because Winterrowds traffic stops did not constitute
custody for Miranda purposes, the police could continue to ask
Winterrowd to produce his vehicle registration and proof of
insurance even after Winterrowd invoked his Fifth Amendment
rights to silence and to the assistance of counsel because those
rights did not apply in Winterrowds situation.
The remaining issue is whether Winterrowd, by invoking
his privilege against self-incrimination, could lawfully refuse
the police officers demands that he produce his vehicle
registration and proof of insurance. The answer is no:
motorists have no Fifth Amendment right to refuse authorized
police requests for production of their vehicle registration and
proof of insurance.
See Larkin v. Hartigan, 620 N.E.2d 598, 602 (Ill. App.
1993) (There is nothing unconstitutional about requiring a
vehicle owner to verify [that] his insurance sufficiently meets
all legal requirements.); People v. Goodin, 668 N.W.2d 392, 395-
96 (Mich. App. 2003) (motorists have no Fifth Amendment privilege
to refuse to produce their drivers license, registration, and
name and address).
Accord: State v. Adams, 891 P.2d 251, 253-54 (Ariz.
App. 1995); State v. Melemai, 643 P.2d 541, 545-46 (Haw. 1982);
People v. Lucus, 243 N.E.2d 228, 230-31 (Ill. 1968); People v.
Samuel, 277 N.E.2d 381, 386; 327 N.Y.S.2d 321, 329-330 (N.Y.
1971); Lamb v. State, 488 P.2d 1295, 1296-97 (Okla. Crim. App.
1971); Commonwealth v. Long, 831 A.2d 737, 747-750 (Pa. Super.
2003); State v. Smyth, 397 A.2d 497, 499-500 (R.I. 1979); Banks
v. Commonwealth, 230 S.E.2d 256, 257-59 (Va. 1976).
See also Byers v. California, 402 U.S. 424, 427-434; 91
S.Ct. 1535, 1537-1540; 29 L.Ed.2d 9 (1971) (holding that hit-and-
run statutes that require motorists to produce identification do
not violate the Fifth Amendment).
For these reasons, the district courts judgements are
AFFIRMED.
_______________________________
1 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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