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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
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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
| DENNIS R. MORGAN, | ) |
| ) Court of Appeals No. A-9579 | |
| Appellant, | ) Trial Court No. 4DJ-05-129 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2110 July 13, 2007 |
| ) | |
Appeal from the District Court, Fourth Judi
cial District, Delta Junction, Tracy L.
Blais, Magistrate.
Appearances: Zane D. Wilson of Cook,
Schuhmann, & Groseclose, Fairbanks, for the
Appellant. Blair M. Christensen, 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.
Late in the evening on September 15, 2005, Dennis R.
Morgan pulled out of a restaurant parking lot onto the Richardson
Highway without using his turn signal in apparent violation of
13 AAC 02.215(a).1 State Trooper Brian Wassmann, who was parked
nearby, saw Morgan leave the parking lot without signaling. He
pursued Morgans vehicle and pulled him over.
During Wassmanns contact with Morgan, the trooper
observed indications that Morgan might be intoxicated. Morgan
admitted that he had consumed two or three beers. Wassmann
administered field sobriety tests to Morgan and, after Morgan
failed these tests, Wassmann arrested Morgan for driving under
the influence.
Morgan filed a motion seeking to suppress the evidence
against him on the basis that Trooper Wassmann had subjected
Morgan to a pretext stop. The district court held a hearing at
which evidence was presented concerning the precise circumstances
of Morgans traffic stop and Trooper Wassmanns enforcement
practices concerning traffic violations in particular, his
practices regarding the enforcement of the turn signal
regulation.
In addition, Morgan presented the testimony of a
paralegal employed by his attorneys law firm. The paralegal
testified that she stationed herself for a few hours to watch
vehicles leaving the same restaurant parking lot, as well as the
parking lot of a nearby grocery. According to the paralegal,
only one-quarter of the vehicles leaving the restaurant parking
lot (seven vehicles out of twenty-eight) and only two-fifths of
the vehicles leaving the grocery parking lot (fourteen out of
thirty-six) used their turn signal to indicate their intentions.
However, no law enforcement officers passed by during
this time. Thus, the paralegal had no information as to whether
these motorists would have been stopped if their failure to
signal had been observed by a peace officer.
At the conclusion of the hearing, Magistrate Tracy L.
Blais concluded that when Trooper Wassmann made the traffic stop,
he had probable cause to believe that Morgan had violated the
turn signal regulation. (Morgan does not appeal this portion of
the magistrates ruling.)
Magistrate Blais further concluded, using the criteria
established by this Court in Nease v. State,2 that Wassmanns
decision to stop Morgans vehicle was a reasonable police practice
and that, therefore, Wassmann had not stopped Morgan on a
pretext.
Following the magistrates ruling, Morgan entered a
Cooksey plea to the charge of driving under the influence,
preserving his right to pursue his pretext stop argument on
appeal.3 In his briefs to this Court, Morgan argues that
Wassmanns action in this case his decision to stop Morgan for
failing to signal a turn out of a parking lot was not a
reasonable police practice.
Morgan points out that, according to Wassmanns
testimony at the evidentiary hearing, Wassmann only rarely stops
drivers for failing to signal when leaving a parking lot.
Wassmann testified that, unless a trooper has been specifically
directed to give priority to traffic enforcement, troopers have
quite a bit of discretion as to whether to stop a motorist for a
traffic violation. Regarding failures to signal a turn when
leaving a parking lot, Wassmann conceded that he had made such
traffic stops only a dozen times during his thirteen years as a
state trooper.
Moreover, Wassmann testified that, on the night when he
stopped Morgan, he was working a special detail [targeting] DUI
enforcement. To that end, Wassmann was paying special attention
to moving violations. As Wassmann explained,
Driving is a multi-task[ing activity]
... or divided-attention task[.] [And]
alcohol [consumption] impairs that divided-
attention task. So if people commit moving
violations out there, ... it behooves [law
enforcement officers] to enforce the ...
traffic [laws] and ... make the stop and see
if [the driver is] under the influence.
. . .
[A]t that hour, [especially], were
looking for moving violations because [we]
know that alcohol impairs people to the point
of ... making moving violations. ...
[T]hats common knowledge.
Based on this testimony, Morgan
argues that it is obvious that Wassmann
stopped Morgans vehicle because he wanted to
investigate Morgan for driving under the
influence and that Wassmann would not have
bothered to stop Morgans vehicle absent
[this] improper motivation.
As we pointed out in Nease v.
State, 105 P.3d at 1148, Alaska law is still
undecided on the question of pretext stops.
The United States Supreme Court rejected this
doctrine in Whren v. United States.4 The
Alaska courts have not yet decided whether to
follow Whren or, instead, follow the
decisions of other states that have adopted
the pretext stop doctrine as a limitation on
the authority of police officers to stop
vehicles for traffic violations.
We did not have to resolve this
issue in Nease, and we conclude that we need
not resolve this issue in Morgans case
either. Even if we were to adopt a pretext
stop limitation on traffic stops, that
doctrine would not apply to the facts of
Morgans case.
We reach this conclusion mainly
because we disagree with Morgans contention
that DUI enforcement was an improper
motivation for the stop of Morgans vehicle.
As we explained in Nease, the fact
that a police officer may have an ulterior
motive for enforcing [a particular] law is
irrelevant for Fourth Amendment purposes
even under the doctrine of pretext [stops]
unless the defendant proves that this
ulterior motive prompted the officer to
depart from reasonable police practices.5
At the evidentiary hearing, Trooper
Wassmann testified that a motorists
commission of a moving violation is an
indicator that the motorist may be
intoxicated because the act of driving
requires a motorist to concentrate on several
things at once, and the consumption of
alcohol reduces the motorists ability to
multi-task. This testimony was unrebutted.
Wassmann was assigned to a DUI
enforcement detail on the night in question;
that is, he was directed to be on the lookout
for potentially intoxicated drivers. At
10:45 p.m., Wassmann observed Morgans vehicle
leaving the parking lot of a restaurant that
served alcoholic beverages. Morgan entered
the highway without signaling. Given these
facts, and given the relationship between a
motorists intoxication and an increased
likelihood that the motorist will commit a
moving violation, Magistrate Blais properly
concluded that Wassmanns decision to stop
Morgans vehicle conformed to reasonable
police practices.
Indeed, the States case here is
seemingly stronger than it was in Nease for
the traffic violation in Nease was not a
moving violation, but rather an equipment
violation (i.e., a traffic infraction that
had no ostensible relationship to the
likelihood that the driver was impaired).
The judgement of the district court
is AFFIRMED.
_______________________________
1This administrative regulation provides: No person may
turn a vehicle or move right or left upon, onto, or off a roadway
without giving an appropriate signal ... .
2105 P.3d 1145, 1148-1150 (Alaska App. 2005).
3Cooksey v. State, 524 P.2d 1251 (Alaska 1974).
4517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).
5Nease, 105 P.3d at 1148 (citing Wayne R. LaFave, Search and
Seizure: A Treatise on the Fourth Amendment (3rd ed.
1996), 1.4, Vol. 1, pp. 117-18).
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