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NOTICE
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opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
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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
| LUCAS W. BESSETTE, | ) |
| ) Court of Appeals No. A-9268 | |
| Appellant, | ) Trial Court No. 4FA-05-0071 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2063 - October 6, 2006 |
| ) | |
Appeal from the
Superior Court, Fourth Judicial District,
Fairbanks, Charles R. Pengilly, Judge.
Appearances: Michael A. MacDonald, MacDonald
& Levengood, P.C., Fairbanks, for the
Appellant. Tamara E. de Lucia, 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.
COATS, Chief Judge.
Lucas W. Bessette was convicted of felony driving while
under the influence1 after a trooper stopped him for driving his
snowmachine on a sidewalk in Fairbanks. On appeal, he argues
that the officer was not justified in stopping him, and
therefore, the trial court erred in denying his motion to
suppress the evidence against him. We conclude that the stop was
valid and affirm Bessettes conviction.
Facts and proceedings
At approximately 3:00 a.m. on January 6, 2005, Trooper
Derek Loop noticed Bessette trying to start a snowmachine that
was stalled on top of a snow berm on the sidewalk beside College
Road in Fairbanks. There had been heavy snow that day, and the
berm was the result of road crews being halfway between plowing
the road and plowing the sidewalk. Trooper Loop stopped his
patrol car and approached Bessette on foot. He testified that he
wanted to make sure Bessette was all right and talk to him about
having his snowmachine on the sidewalk, which is a traffic
infraction.2
When Trooper Loop approached, Bessette turned around
and took a few rapid steps in the opposite direction. Trooper
Loop noticed that Bessette was staggering. He told Bessette to
stop and asked him to identify himself. Eventually, Bessette
turned around and admitted that he had driven the snowmachine.
Trooper Loop noticed that Bessettes speech was slurred.
Trooper Loop requested that Bessette perform several
field sobriety tests, which Bessette failed. Bessette then
submitted to a DataMaster test, which revealed a breath alcohol
content of .259 percent. Trooper Loop arrested Bessette for
driving while under the influence. Because he had previous
convictions for that offense, he was ultimately charged with a
felony.
Bessette moved to suppress all evidence from the stop.
He argued that the stop was not a valid welfare check. He also
argued that the trooper did not have probable cause to stop him
for operating a snowmachine on the sidewalk because the sidewalk
was under a snow berm. The court denied Bessettes motion,
holding that the trooper had made a valid traffic stop. Bessette
entered a Cooksey plea, preserving his right to appeal the denial
of his suppression motion.3 This appeal followed.
Discussion
Bessettes claim that the stop was not a valid traffic
stop
Whether probable cause for a traffic stop exists is a
mixed question of fact and law.4 We view the evidence in the
light most favorable to the trial courts ruling and overturn its
factual findings only if they are clearly erroneous.5 We
independently review whether those facts justify a finding of
probable cause.6
Normally, an officer who directly observes a violation
of the traffic code has probable cause for a traffic stop.7
Here, the trooper observed Bessette trying to start a snowmachine
that was stalled on the sidewalk. The traffic code prohibits
driving on a sidewalk or sidewalk area.8 Accordingly, the
trooper would normally have probable cause to stop Bessette.9
However, Bessette argues that the sidewalk lost its character as
a sidewalk because it was covered by a snow berm.
The Alaska Administrative Code defines a sidewalk as
that portion of a street between the curblines or the lateral
lines of a roadway and the adjacent property lines, and intended
for use by pedestrians.10 It defines pedestrian as any person
afoot; it includes a person on skis or snowshoes.11
At the evidentiary hearing, Bessette testified that the
snow berm was approximately three feet high, eight to ten feet
wide, and flat on top. He saw eight to ten inches of sidewalk
showing, and he thought it was possible he was on top of the
sidewalk. The trial court said: One of the clear thoughts in my
head is its no less of a sidewalk because its got snow on it.
We agree. The snow was not so high that Bessette was
unable to identify the sidewalk, and pedestrians could continue
to use the eight to ten inches of space on the ground or the wide
flat surface on the berm for foot, ski, or snowshoe traffic.
Under these facts, the sidewalk remained a sidewalk for purposes
of the administrative code.
Bessette also argues that a reasonable person would not
expect that the traffic code applied to a sidewalk covered by a
snow berm, and therefore, he had a reasonable expectation of
privacy not to be contacted by the police. Even if this was so,
the right to privacy guaranteed by Article I, Section 22, of the
Alaska Constitution does not create a right to seek the exclusion
of evidence that is separate and independent from the right to
be free from unreasonable searches and seizures under Article I,
Section 14, of the Alaska Constitution.12 Consequently, our
ruling that Bessettes stop was valid under Article I, Section 14,
of the Alaska Constitution disposes of his privacy claim as well.
Finally, Bessette argues that the stop was an invalid
pretext stop because the troopers subjective motivation was not
to cite him for a traffic infraction but to conduct a welfare
check or an investigative stop. We have not decided whether to
adopt the doctrine of pretext stops as a matter of Alaska law.
But even if we recognized that doctrine, Bessette has failed to
show that his stop was an impermissible pretext stop. To do so,
Bessette had to prove the trooper departed from reasonable police
practice when he stopped Bessette for operating a motor vehicle
on the sidewalk.13 Bessette has presented no such evidence.
Accordingly, we reject his claim.
Conclusion
Bessettes conviction is AFFIRMED.
_______________________________
1 AS 28.35.030(a), (n).
2 13 AAC 02.487.
3 See Cooksey v. State, 524 P.2d 1251 (Alaska 1974).
4 Chandler v. State, 830 P.2d 789, 792 (Alaska App. 1992).
5 State v. Wagar, 79 P.3d 644, 650 (Alaska 2003); Nease v.
State, 105 P.3d 1145, 1147-48 (Alaska App. 2005).
6 Wagar, 79 P.3d at 650; Nease, 105 P.3d at 1148.
7 Nease, 105 P.3d at 1147; Williams v. State, 853 P.2d 537,
538 (Alaska App. 1993).
8 13 AAC 02.487.
9 See Nease, 105 P.3d at 1147; Conkey v. State, Dept of
Admin., 113 P.3d 1235, 1237-38 (Alaska 2005); State, Dept of
Public Safety v. Conley, 754 P.2d 232, 236 (Alaska 1988);
Jacobson v. State, 551 P.2d 935, 937-38 (Alaska 1976); Mezak v.
State, 877 P.2d 1307, 1308 (Alaska App. 1994); Lathan v. State,
707 P.2d 941, 943 (Alaska App. 1985).
10 13 AAC 40.010(a)(48).
11 13 AAC 40.010(a)(33).
12 See Anchorage v. Ray, 854 P.2d 740, 750-51 (Alaska App.
1993).
13 See Grohs v. State, 118 P.3d 1080, 1081-82 (Alaska App.
2005); Nease, 105 P.3d at 1147-48.
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