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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| MICHAEL TRAVIS MILLER, | ) |
| ) Court of Appeals No. A-9484 | |
| Appellant, | ) Trial Court No. 1JU-05-872 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) |
| ) No. 2069 October 20, 2006 | |
Appeal from the
District Court, First Judicial District,
Juneau, Keith B. Levy, Judge.
Appearances: Kathleen A. Murphy, Assistant
Public Defender, and Quinlan G. Steiner,
Public Defender, Anchorage, 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.
STEWART, Judge.
A police officer pulled over the vehicle Michael
Travis Miller was driving based on a report that Miller had been
involved in a verbal domestic dispute. When the officer
contacted Miller, he observed signs that Miller was intoxicated
and asked him to submit to a breath test. Miller refused and was
ultimately convicted of refusal to submit to a chemical test.
Miller argues that this stop was illegal and that the
district court should have suppressed the evidence against him.
Having reviewed the record, we agree that the officer who stopped
Miller had no objective basis to believe that the reported
argument had led, or would lead, to a crime. We therefore
conclude that the investigative stop was not supported by
reasonable suspicion and reverse Millers conviction.
Facts and proceedings
On July 13, 2005, at about 12:30 a.m., a woman called
911 emergency to report that a man and a woman were arguing in
the parking lot of Henrys Bar in Juneau. The caller said the two
were not physically fighting but were standing near the open
doors of a white Subaru arguing and waving their arms. When
asked to describe the individuals, the caller said the woman had
blonde hair and the man was wearing a hat and was about one and
one-half feet taller than the woman. She did not know if the two
were a couple or perhaps brother and sister.
Juneau Police Officer Keith Mickelsen, who happened to
be nearby, was dispatched to a verbal 10-16 that is, a verbal
domestic dispute. The dispatcher described the individuals, the
vehicle, and the location, but provided no other details. As
Officer Mickelsen neared the parking lot of Henrys Bar, he saw
people getting into a white Subaru. The Subaru drove past
Officer Mickelsen as he entered the parking lot. Officer
Mickelsen could see that there were three people in the car,
including the driver, but he could not see the passengers
distinctly enough to tell if anyone was in need of assistance.
Officer Mickelsen activated his overhead lights and
stopped the Subaru. He contacted the driver, Miller, and asked
him about the argument in the parking lot. He also asked if
anyone in the vehicle needed help; the two women passengers shook
their heads to indicate that they did not. Upon contacting
Miller, Officer Mickelsen observed that he had watery, bloodshot
eyes and an odor of alcohol, so he began to investigate whether
Miller was intoxicated. Ultimately, Miller was arrested for
driving while under the influence,1 refusal to submit to a
chemical test,2 and two counts of reckless endangerment3 for
putting his passengers at risk by driving while under the
influence.
Before trial, Miller moved to suppress the evidence
acquired as a result of the stop, arguing that the stop was
illegal. At an evidentiary hearing, the State presented the
testimony of Officer Mickelsen and the recordings of the 911 call
and the police dispatch. After hearing this evidence, District
Court Judge Keith B. Levy denied Millers motion, finding the
facts sufficient to establish a substantial possibility that a
domestic violence assault was occurring, had occurred, or was
about to occur. Miller then pleaded guilty to refusal to submit
to a chemical test, reserving his right to challenge the denial
of his motion to suppress.4 The State dismissed the other
charges.
Miller appeals.
Discussion
Was Millers stop illegal?
The parties agree that Miller was subjected to an
investigative stop. The only dispute is whether, under the facts
of this case, the report of a verbal argument provided reasonable
suspicion to stop Millers vehicle.
An investigative stop is permitted if an officer has
reasonable suspicion that imminent public danger exists or
serious harm to persons or property has recently occurred.5
Alaska courts take a flexible approach in evaluating whether a
stop is supported by reasonable suspicion, balancing the
seriousness and recency of the suspected crime and the strength
of the officers suspicion against the intrusiveness of the stop.6
The ultimate inquiry is whether the detaining officer, in light
of all the circumstances, had a particularized and objective
basis for suspecting the particular person stopped of criminal
activity.7
Officer Mickelsen stopped Miller based solely on the
dispatchers report of a verbal 10-16 that is, a verbal domestic
disturbance. We have previously held, in Jones v. State,8 that a
verbal argument, standing alone, does not justify a detention.
In Jones, the police responded to a 911 call reporting a
disturbance between a tenant and a landlord.9 When the officers
arrived on the scene, they heard yelling from inside the building
and found Jones arguing with a woman in the hallway.10 One of
the officers ordered Jones outside and questioned him.11 When
Jones tried to cut off the questioning and leave, the officer
prevented him from doing so.12 Eventually, Jones was handcuffed
and searched for weapons.13 During that search, the police
discovered crack cocaine.14
We concluded that Joness detention was illegal because
the police had no reason to believe he had committed a crime:
[A]lthough the police knew that Jones was
involved in a dispute with his landlord,
they had no indication that Jones had
assaulted the landlord or had committed any
illegal act. Accordingly, there was no
basis for [the officer] to require Jones to
stay at the scene and talk to him[.][15]
The stop in this case was less intrusive than the stop
in Jones. And, in Jones, the police had separated the two
individuals before the detention occurred so there was no ongoing
concern that the argument would become violent. But the critical
fact is that Officer Mickelsen, like the officer in Jones, had no
objective basis for believing that a crime had occurred or that
one was imminent. At the evidentiary hearing, Officer Mickelsen
acknowledged that he had no reason to infer that this was a
domestic violence situation: no violence had been reported, he
had observed no violence, and he had no knowledge of the
relationship of the people involved.
Nor did the additional facts known to the dispatcher
provide reasonable suspicion for the stop.16 The tape of the 911
call was played at the evidentiary hearing. The 911 caller
stated, in a casual voice, that a man and a woman were verbally
fighting and waving their arms in the parking lot. At the
dispatchers request, the caller described the two individuals and
their vehicle. She did not say what the argument was about or
express concern that it would become violent. Indeed, it is
impossible to tell from the 911 recording whether the caller was
a citizen concerned for the safety of the man or woman, a bar
employee worried the argument was disturbing customers, or a
nearby resident awakened by the noise.
The State argues, in essence, that any argument
between a man and a woman that is heated enough to prompt a 911
call is per se reasonable suspicion of domestic violence. But
many heated verbal arguments do not end in domestic violence, and
there is no particularized and objective basis in the record to
support a rational inference that this argument would end that
way.17 For these reasons, we conclude that Millers stop was
illegal and that the district court erred in denying his motion
to suppress.
Conclusion
Millers conviction is REVERSED.
_______________________________
1 AS 28.35.030(a)(1).
2 AS 28.35.032(a).
3 AS 11.41.250(a).
4 Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
5 Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).
6 Jones v. State, 11 P.3d 998, 1000 (Alaska App. 2000)
(citing State v. G.B., 769 P.2d 452, 456 (Alaska App. 1989)).
7 State v. Moran, 667 P.2d 734, 735 (Alaska App. 1983)
(quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct.
690, 695, 66 L.Ed.2d 621 (1981)).
8 11 P.3d 998 (Alaska App. 2000).
9 Id. at 999.
10 Id.
11 Id.
12 Id.
13 Id. at 1000.
14 Id.
15 Id.
16 See Mattern v. State, 500 P.2d 228, 233 (Alaska 1972)
([w]hen one officer furnishes evidence to another officer which
leads to an arrest, the state must prove the reasonable basis of
the former officers information.); State v. Prater, 958 P.2d
1110, 1113 (Alaska App. 1998) ([a]n investigative stop made in
objective reliance on a police dispatchers bulletin is justified
if the dispatcher who broadcast the bulletin possessed reasonable
suspicion of imminent public danger justifying the stop.).
17 Cf. McGee v. State, 70 P.3d 429, 432 (Alaska App. 2003)
(ruling that police did not have reasonable suspicion to detain a
package when there were no facts distinguishing the package from
one that did not contain contraband).
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