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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
| DESMOND A. TUTTLE, | ) |
| ) Court of Appeals No. A-9615 | |
| Appellant, | ) Trial Court No. 3KN-04-2544 CR |
| ) | |
| v. | ) |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| ) | |
| Appellee. | ) [No. 2144 - January 18, 2008] |
| ) | |
Appeal from the
Superior Court, Third Judicial District,
Kenai, Charles T. Huguelet, Judge.
Appearances: David D. Reineke, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Tamara de Lucia, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
Desmond A. Tuttle entered a plea of no contest to
attempted misconduct involving a controlled substance in the
third degree, a class C felony.1 In entering his plea, Tuttle
reserved his right to raise an issue on appeal: that the
evidence against him stemmed from an illegal arrest. We agree
with Tuttle and reverse his conviction.
Factual and procedural background
At the evidentiary hearing, Brett D. May testified that
he worked for the Riverside House, a hotel in Soldotna. May
testified that on October 27, 2004, he observed Tuttle urinating
in the hallway and fidgeting with some doors. May said he asked
Tuttle what he was doing, but Tuttle ignored him. May called the
police.
Soldotna Police Officer Jezel Stoneking was dispatched
to the Riverside House at approximately 2:30 a.m. Officer
Stoneking testified that dispatch informed her that the desk
clerk had observed an individual who urinated either in the lobby
or the hallway. Officer Stoneking started her audio recorder and
then walked into the hotel lobby. The desk clerk pointed down
the hallway towards a person who matched the description provided
by dispatch. Other than the clerk and this other individual, no
one else was around.
Officer Stoneking made contact with Tuttle in front of
Room 104. This room was in fact Tuttles room, which he had paid
for in advance. Officer Stoneking observed that Tuttles pants
appeared damp and that he seemed intoxicated. At this time,
Officer Stoneking did not know that Tuttle was a guest at the
hotel. However, Tuttle was attempting to open the door to Room
104 with what Officer Stoneking thought looked like a car key.
Officer Stoneking admitted that Tuttle told her that Room 104 was
his room.
Due to Tuttles demeanor, which Officer Stoneking
described as disoriented and almost hostile, she requested
backup. Officer Duane Kant arrived to assist within a few
minutes. Officer Stoneking testified that Tuttle was getting
loud enough to where at some point other hotel guests were
disturbed. She thought that one guest looked out of a nearby
room but closed the door after seeing two police officers with
Tuttle. Officer Stoneking testified that she told Tuttle to
settle down.
Eventually the officers got Tuttles name from him and
reported it to dispatch. Dispatch informed them that Tuttle had
previously possessed a bullet proof vest, a knife, and a gun.
Officer Stoneking testified that based on Tuttles behavior and
the dispatch report, she removed her pepper spray and concealed
it in her right hand. She testified that Tuttle could see she
had something in her hand. Both officers testified that during
the encounter Tuttle was subject to wide mood swings ranging from
passive to aggressive, raising and lowering his voice. Based on
Tuttles demeanor and raised voice, the officers arrested Tuttle
for disorderly conduct.
Tuttle testified that when the officers showed up, he
told them who he was and that he was okay. Tuttle denied going
to different doors before he got to his door. Tuttle also denied
ever being addressed by the hotel clerk. Tuttle testified that
the officers denied him access to his hotel room and that Officer
Stoneking was loud at times and combative. Further, he testified
that only after he was handcuffed did he get loud because he was
trying to figure out what was happening.
Officer Stoneking transported Tuttle to the Wildwood
Pretrial Facility. Upon departing the facility, she checked the
back of her patrol car. Officer Stoneking found a clear plastic
bag containing approximately thirteen grams of white powder on
the rear floorboard of the patrol car. A subsequent field test
of this substance indicated that the substance was cocaine.
Officer Stoneking had checked the patrol car prior to the start
of her shift. She had not had anyone else in the rear of the car
that night before Tuttle.
Officer Stoneking returned to the hotel and guarded the
door to Room 104 while Officer Kant secured a search warrant. A
warrant was issued and the search resulted in the seizure of two
plastic bags containing cocaine with a combined weight of sixteen
and one-half grams, a small electronic scale, aluminum foil in
pieces for packaging, and a loaded handgun.
The State indicted Tuttle on one count of misconduct
involving a controlled substance in the third degree, a class B
felony,2 and two counts of misconduct involving a controlled
substance in the fourth degree, a class C felony.3 (The charges
were later amended to one count of attempted misconduct involving
a controlled substance in the third degree, two counts of
misconduct involving a controlled substance in the fourth degree,
and one count of disorderly conduct.) Tuttle filed a motion
seeking to suppress the evidence against him on the ground that
the officers lacked probable cause to arrest him for disorderly
conduct.
Superior Court Judge Charles T. Huguelet conducted an
evidentiary hearing. We have previously set out a summary of the
testimony at the evidentiary hearing. In addition, the State
presented the audio recording that Officer Stoneking made during
the incident. At the conclusion of the evidentiary hearing,
Judge Huguelet found that, during the interview with the police,
Tuttle was going back and forth between being out of it and being
hostile. He started shouting, they werent able to calm him down,
and they took him into custody. Judge Huguelet found that the
police had probable cause to arrest Tuttle for disorderly
conduct. He accordingly denied Tuttles motion to suppress the
evidence obtained by the police.
Why we conclude that the police did not have
probable cause to arrest Tuttle for
disorderly conduct
Tuttle was arrested for disorderly conduct pursuant to
AS 11.61.110(a)(2):
A person commits the crime of disorderly
conduct if ... in a public place or in a
private place of another without consent, and
with intent to disturb the peace and privacy
of another or with reckless disregard that
the conduct is having that effect after being
informed that it is having that effect, the
person makes unreasonably loud noise[.][4]
The State charged Tuttle with recklessly disturbing the peace and
privacy of others. Tuttle argues that this statute requires the
police to warn a person that his conduct is having the effect of
disturbing the peace and privacy of another.
The State has provided this court with copies of the
audio recording that Officer Stoneking made of the incident.
Officer Stoneking testified that the recording was an accurate
representation of the incident. (She did state that her voice
would seem louder because the microphone was clipped to her shirt
pocket, relatively close to her mouth.) Judge Huguelet stated
that because the incident was recorded we know what happened.
The State concedes that the facts that the trial court found are
based upon the audio recording. The State argues that, during
the incident, the police told Tuttle to settle down, not raise
his voice, and not yell. The State also relies on the following
exchange in arguing that the police told Tuttle that he was
creating a disturbance by making unreasonably loud noise:
Tuttle: What are you doing here
bothering me?
Officer Kant: We got called.
Tuttle: Okay.
Officer Kant: Creating a disturbance.
Tuttle: Okay. Okay. I am?
Officer: Uh-huh (affirmative).
Alaska Statute 11.61.110(a)(2), the subsection of the
disorderly conduct statute under which Tuttle was charged,
appears to be designed to criminalize disturbing the peace and
privacy of other people by making unreasonably loud noise.
Under the statute, if someone is recklessly making unreasonably
loud noise and then is specifically informed that the noise is
disturbing the peace and privacy of other people, the person
commits the crime of disorderly conduct if he then persists in
making unreasonably loud noise. The statute appears to require a
specific warning. This warning narrows the conduct to which the
statute applies and makes the statute less subject to claims of
vagueness and arbitrary enforcement.
First, there is no indication that Tuttle was making
unreasonably loud noise before the officers approached him. May
testified that he was the person who called the police about
Tuttle. May testified that he saw Tuttle urinating in the
hallway. He saw Tuttle with a key in his hand trying to open some
doors, apparently because Tuttle did not know which room was his.
When he asked Tuttle what he was doing, Tuttle ignored him. May
then called the police.
We have carefully reviewed the recording of the
incident. Shortly after the police arrived, Tuttle asked the
police why they were bothering him. In response, Officer Kant
told Tuttle that the police were called because Tuttle was
creating a disturbance. But this exchange did not inform Tuttle
that he was making unreasonably loud noise that was disturbing
others. In fact, the act that prompted May to call the police
had nothing to do with Tuttle making unreasonably loud noise.
It is true that Officer Stoneking told Tuttle not to
raise his voice and later told him again not to raise his voice.
She also told him dont yell. Apparently Tuttle reacted when
Officer Stoneking took out her pepper spray. But there is simply
no evidence that the police informed Tuttle that he was
disturbing the peace and privacy of others by making unreasonably
loud noise. And from our review of the audio recording, it
simply does not appear that Tuttle was making unreasonably loud
noise.
In reviewing the superior courts denial of a motion to
suppress, we view the facts in the light most favorable to
upholding the trial courts ruling.5 We accept the findings of
the trial court unless they are clearly erroneous; whether those
factual findings support the trial courts legal conclusions is a
question of law that we decide de novo.6 From our review of the
record, including the recording, we conclude that Judge Huguelets
finding that Tuttle was making unreasonably loud noise is clearly
erroneous. Furthermore, there was no evidence to support the
conclusion that Tuttle made unreasonably loud noise after being
informed that he was making such noise and that it was disturbing
the peace and the privacy of others.
Conclusion
Accordingly, we conclude that Judge Huguelet erred in
refusing to grant Tuttles motion to suppress. We therefore
REVERSE Tuttles conviction.
Reversed and remanded.
MANNHEIMER, Judge, concurring.
I write separately to clarify the reasons why I agree
that Tuttles arrest for disorderly conduct was unlawful.
The State argues, and Judge Huguelet found, that the
police had probable cause to believe that Tuttle had violated AS
11.61.110(a)(2). This portion of the disorderly conduct statute
declares that it is a crime for a person (1) to make[]
unreasonably loud noise (2) with reckless disregard for the fact
that this unreasonably loud noise is disturb[ing] the peace and
privacy of at least one other person, and (3) after being
informed that [the noise] is having [this] effect i.e., after
being informed that the noise is disturbing someone elses peace
and privacy.
Putting all three elements of this offense together, it
is apparent that a person does not violate this statute merely by
making an unreasonably loud noise that disturbs other peoples
peace and privacy. Rather, the statute requires proof that the
person persisted in making unreasonably loud noise after being
explicitly warned that the noise was disturbing other peoples
peace and privacy.
In Tuttles case, the police were called because the
hotel clerk saw Tuttle urinating in the hallway and trying to get
into one of the rooms. (The hotel clerk either did not know or
failed to mention that Tuttle was a registered guest at the
hotel.)
The audio recording made by Officer Stoneking shows
that, shortly after the police contacted Tuttle, he asked the
officers, What are you doing here, bothering me? The other
officer on the scene, Officer Kant, replied, We got called
[because you were] creating a disturbance.
In its brief to this Court, the State suggests that
this was the required warning to Tuttle a warning that he was
making an unreasonably loud noise that was disturbing the peace
and privacy of other people. But this view of the facts is
demonstrably false. The police were not called to the
hotel because Tuttle was making loud noises. Rather, the hotel
clerk summoned the police because Tuttle had urinated in the
hallway and was fumbling at the door to a room. Thus, to the
extent that Tuttle might be said to have created a disturbance
before the police arrived, that disturbance had nothing to do
with noise.
Moreover, the audio recording of the police contact
with Tuttle shows that, at this point in the discussion, Tuttle
had not yet raised his voice to any significant degree. Both he
and the officers were speaking in relatively normal
conversational tones. No one in Tuttles situation would have
interpreted Officer Kants remark about a disturbance as an
accusation that Tuttle was currently making unreasonably loud
noise.
The State also relies on the fact that Tuttle, after
initially being fairly calm, raised his voice to the officers two
or three times prompting the officers to repeatedly advise him
to lower his voice and calm down. But the audio recording
reveals that the officers never informed Tuttle that he should
quiet down because he was disturbing the other hotel guests.
Rather, the audio recording shows that the officers were trying
to de-escalate their encounter with Tuttle.
Tuttle was obviously intoxicated, and his mood began to
swing as the police encounter progressed. It appears that the
officers were trying to keep Tuttles emotions in check, so that
their encounter with him did not turn violent. But whatever the
officers motivation for telling Tuttle to calm down, it is clear
that they never said anything to Tuttle to suggest that his
raised voice was disturbing the other guests, or that this was
the officers concern.
At the conclusion of the evidentiary hearing in this
case, Judge Huguelet found based on the testimony of the
officers, and also based on his listening to the audio record of
the encounter that Tuttle started shouting and [the officers]
werent able to calm him down. Based on this fact, Judge Huguelet
concluded that [t]here was ample probable cause for [Tuttles]
arrest.
The first part of Judge Huguelets factual finding is
confirmed by the evidence; Tuttle did start shouting after the
officers refused to leave him alone, and after Officer Stoneking
took out her pepper spray, apparently making preparations to
subdue Tuttle. However, the second part of Judge Huguelets
finding is clearly erroneous. The officers were able to calm
Tuttle down. Even though Tuttle remained upset with the
officers, when the officers asked him to turn around and present
his hands for handcuffing, Tuttle did so without a struggle.
But even if the facts had been as Judge Huguelet
described, there would still be no probable cause to arrest
Tuttle for violating AS 11.61.110(a)(2).
Tuttle did indeed raise his voice, and he even began
shouting, after the police officers refused to leave him alone,
and after Officer Stoneking picked up her can of pepper spray.
But the State did not prove that Tuttles raised voice was
unreasonable under the circumstances. Tuttle had already
explained himself to the officers (that is, he explained that he
was trying to get into his own room at the hotel), but the
officers refused to leave him alone, and instead they began
preparing to subdue him.
It is true that the officers had probable cause to
believe that Tuttle had earlier urinated in the hotel hallway.
But this act does not appear to be a crime under state law. Even
assuming that this act was a misdemeanor under a local ordinance,
the police had no authority to arrest Tuttle for that misdemeanor
because it did not occur in their presence.1
Thus, the question appears to be whether a person acts
unreasonably by raising their voice after police officers contact
the person, question the person, and then refuse to stop when the
person asks to be left alone. The State presents no authority
for the proposition that a raised voice under these circumstances
would constitute an unreasonably loud noise within the meaning of
the disorderly conduct statute.
Moreover, even if Tuttles raised voice had constituted
an unreasonably loud noise under the circumstances, a further
question remains: was Tuttle ever apprised that his raised voice
was disturbing the peace and privacy of others? The answer, as
revealed by the audio recording, is no. To the extent that
Judge Huguelet might have found otherwise, that finding is
clearly erroneous.
For these reasons, I agree with my colleagues that the
police did not have probable cause to arrest Tuttle for
disorderly conduct.
_______________________________
1 AS 11.71.030(a)(1) and AS 11.31.100.
2 AS 11.71.030(a)(1).
3 AS 11.71.040(a)(3)(A).
4 Emphasis added.
5 Crawford v. State, 138 P.3d 254, 258 (Alaska 2006) (citing
State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001)).
6 Id.
1 See AS 12.25.030 035; see also Joseph v. State, 145 P.3d
595, 600-01 (Alaska App. 2006).
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