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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) |
| ) Court of Appeals No. A-9729 | |
| Appellant, | ) Trial Court No. 3AN-05-4950 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| DAVID SCOTT CAMPBELL, | ) |
| ) | |
| Appellee. | ) No. 2199 December 19, 2008 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, John E. Suddock,
Judge.
Appearances: W. H. Hawley, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for the Appellant. Donald (Roy) Roistacher,
Kasmar and Slone, P.C., Anchorage, for the
Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
COATS, Chief Judge, dissenting.
A University of Alaska police officer stopped a vehicle
as it turned off Benson Boulevard into a stores parking lot
because the vehicle did not have its headlights illuminated. The
officer mistakenly believed that the vehicle was operating in
violation of 13 AAC 04.010(a)(1), the regulation that requires a
vehicle to have headlights illuminated one-half hour after
sunset. In fact, sunset had occurred less than fifteen minutes
beforehand.
The officer activated his patrol cars emergency lights.
Instead of stopping, David Scott Campbell drove through the
parking lot, across Northern Lights Boulevard, finally stopping
off the road and leaving his vehicle. The officer arrested him
shortly thereafter.
The State indicted Campbell for first-degree eluding a
police officer.1 The State also added four misdemeanor charges
by information: driving while under the influence,2 resisting or
interfering with arrest,3 fifth-degree criminal mischief,4 and
improper use of registration or title.5
Campbell moved to suppress, arguing that he was
illegally stopped. Superior Court Judge John E. Suddock held an
evidentiary hearing on the motion and suppressed the States
evidence. We uphold the superior courts ruling for the reasons
below.
Background facts and proceedings
University of Alaska Anchorage (UAA) Police Officer
Scott Chafin testified that he contacted a dispatcher on June 4,
2005, at about 11:00 p.m. to find out what time sunset was. He
recalled that the dispatcher informed him that sunset was
somewhere around 10:26 p.m.
Officer Chafin went to the University Center on Old
Seward Highway to perform a security check of the UAA premises
there. He left the area around 11:20 p.m. He then stopped a car
on New Seward Highway for not having its headlights on. After
concluding the stop with a verbal warning, Chafin stopped another
car for not having its headlights illuminated. Campbells vehicle
was the third that Chafin intended to stop for not having its
headlights illuminated.
When Officer Chafin turned on his emergency lights,
Campbell was turning from Benson Boulevard into the Fred Meyer
parking lot. Campbell did not stop but drove across the parking
lot as Officer Chafin followed with his lights and siren
activated. Campbell drove over the curb on the north side of the
parking lot, across the four lanes of Northern Lights Boulevard,
and over the curb on the north side of Northern Lights Boulevard,
where he stopped. When Chafin stopped his patrol car, Campbell
got out of his vehicle and ran to the fence.
The State presented no evidence on why dispatch
provided Officer Chafin with faulty sunset information. Although
the University Police Department had a system to record radio
traffic, the system was apparently inoperative.
Judge Suddock found that the State failed to establish
that the misinformation about the time of sunset resulted from
excusable neglect. Judge Suddock also found no evidence that
Cambell had endangered anyone, put anyone at risk, or engaged in
any outrageous conduct. He granted the motion to suppress,
primarily relying on Castle v. State.6
The State moved for reconsideration and asked to
present additional evidence. Judge Suddock denied
reconsideration, pointing out that the States motion failed to
discuss his analysis of the evidence, which found that Campbell
had a brief failure to stop followed by a minor traffic offense
with no attendant risk to the public.
The State then filed a supplemental motion for
reconsideration, again asking to reopen the evidentiary hearing
to present additional evidence. Judge Suddock allowed the State
to recall Officer Chafin for additional testimony.
At the conclusion of Officer Chafins additional
testimony, Judge Suddock found that Campbells driving as he
turned into the parking lot from Benson Boulevard did not arouse
suspicion. He found that Campbell accelerated up to thirty miles
per hour in the lot and then slowed down before going across the
four lanes of Northern Lights Boulevard and stopping on the
sidewalk. He found that no other vehicle had to take evasive
action and that no third party was subjected to any risk by
Campbells driving. Judge Suddock ruled that Campbell was
subjected to an illegal stop. He further ruled that Campbells
conduct, a direct response to the illegal stop, did not create a
risk of danger to third persons even though Campbell violated the
law. Accordingly, he suppressed the States evidence.
Discussion
The State first argues that Officer Chafins attempt to
stop Campbell was valid because the officer reasonably believed
that he observed a traffic violation and acted in good faith in
stopping Campbell. Essentially, the State argues that Chafin had
probable cause to believe that Campbell was violating 13 AAC
04.010(a)(1) because his headlights were off.7 The State also
attacks several of Judge Suddocks factual findings.
Whether an officer has probable cause for a traffic stop is a
mixed question of fact and law.8 We view the evidence in the
light most favorable to the trial courts ruling and overturn the
courts factual findings only if we are convinced that the
findings are clearly erroneous.9 We review de novo whether the
historical facts found by the trial court establish probable
cause.10
For an officer to have probable cause, the officer must
have reasonably trustworthy information sufficient to warrant a
person of reasonable caution to believe that an offense has been
or is being committed.11
Officer Chafins information on the time of sunset was
wrong. In the superior court, the State stipulated that on June
4, 2005, sunset occurred at approximately 11:25 p.m. Judge
Suddock found that the range of error between the actual sunset
(11:25 p.m.) and the time of sunset Officer Chafin said dispatch
provided to him went beyond excusable neglect.
We interpret Judge Suddocks decision to mean that he
found that Officer Chafins belief concerning the time of sunset
was unreasonable. The record amply supports Judge Suddocks
finding.
Officer Chafin testified that he called his dispatcher
around 11:00 p.m. to ask when sunset was. As we have explained,
the parties stipulated that sunset that day (June 4, 2005) was at
11:25 p.m. In other words, the sun was above the horizon for
almost half an hour after Officer Chafin spoke to his dispatcher.
According to Officer Chafin, his dispatcher told him
that the sun had already set that sunset had occurred somewhere
around 10:26 p.m. (In the States memorandum to the trial court,
the State asserted that Chafin believed that sunset occurred at
10:24 p.m. or 10:26 p.m.) But Chafin himself testified that the
evening of June 4th was a very nice evening and that the
streetlights had not yet been turned on when he made the traffic
stop of Campbell some thirty minutes later.
We also take judicial notice that, in the spring of
2005, the last time that the sun set as early as 10:26 p.m. was
on May 9th almost four weeks before the stop in this case.12
For all of these reasons, the record supports Judge
Suddocks finding that, if Officer Chafin believed that the sun
had set more than thirty minutes before he turned on his
emergency lights and siren, Chafins belief was unreasonable.
Therefore, Chafins actions in directing Campbell to stop
constituted an illegal seizure.
We next turn to the issue of whether the exclusionary
rule bars evidence of Campbells violations after the illegal
seizure. In Castle, the defendant was a passenger in a vehicle
stopped by the police who walked away from the scene of the stop
after the officer ordered him to remain and wait to be
interviewed.13 The officer chased, caught, and subdued Castle.14
A search of Castles pockets yielded several baggies of cocaine.15
The State argued that even if the officer had no justification
for ordering Castle to stay at the scene to be interviewed,
Castles violation of a municipal ordinance by running in the
street during his flight gave the officer grounds to arrest
him.16
We rejected the States argument and held as follows:
When a defendant commits a crime in response
to an illegal search or seizure, the policy
of the exclusionary rule societys interest
in deterring police misconduct must govern
any decision whether to admit or suppress
evidence of the defendants crime.[17]
Although the discussion of this principle in Castle
referred to the application of the exclusionary rule as enforcing
Fourth Amendment rights, in Joseph v. State,18 we recognized that
Castle necessarily rested on state law grounds because, in
California v. Hodari D.,19 the United States Supreme Court held
that the Fourth Amendment was not violated in the situation
presented in Castle.20
We analyzed three cases from other jurisdictions in
Castle: State v. Alexander,21 People v. Felton,22 and People v.
Cantor.23 In each of those cases, the court applied the
exclusionary rule to suppress evidence of a defendants crime
occurring after the police unlawfully attempted to seize the
defendant.24
The circumstances in Alexander parallel this case
closely. When Alexander failed to stop at a roadblock designed
to catch intoxicated drivers, an officer gave chase, pulled
Alexander over, and arrested him for driving under the influence
of intoxicants.25 The trial court refused to suppress the
evidence because Alexander failed to stop at the direction of the
police officer.26
The Vermont Supreme Court recognized that defendants
are not normally entitled to suppression of evidence that they
assaulted police officers or engaged in life-threatening
behavior, such as an attempt to escape at high speed in response
to an illegal search or seizure.27 But the court recognized
that if the defendants conduct in failing to stop was treated as
a distinct crime not subject to the exclusionary rule, the goal
of the exclusionary rule, controlling police misconduct, [would]
not be served.28 The Vermont court therefore held that Alexander
did not forfeit his right to litigate the illegal seizure
claim.29
In this case, Judge Suddock considered Castle and
compared the facts in Campbells case to those in Alexander.
Judge Suddock found that Campbells actions were a direct response
to the illegal stop. The judge recognized that Campbell did not
immediately stop, but continued driving away from Officer Chafin
for up to eight seconds and for a distance of approximately one
hundred yards. He found that no other vehicle had to take
evasive action and that no third party was subjected to any risk
by Campbells driving or failure to stop.
Although application of the exclusionary rule allows
Campbell to evade responsibility for his misconduct, Judge
Suddock could reasonably conclude that societys interest in
prosecuting Campbell was outweighed by the interest of deterring
police misconduct and maintaining judicial integrity that follows
from application of the exclusionary rule. We uphold Judge
Suddocks decision to suppress the evidence.
Conclusion
The judgment of the superior court is AFFIRMED.
COATS, Chief Judge, dissenting.
University of Alaska Anchorage Police Officer Scott
Chafin initiated a traffic stop of the defendant, David Scott
Campbell, for violating the regulation prohibiting driving
without headlights more than thirty minutes after sunset.1 But
when Officer Chafin activated his overhead lights, Campbell
turned his van into the Fred Meyer parking lot and sped up
noticeably. Chafin activated his siren. He estimated Campbells
speed through the parking lot to be 40-45 miles per hour. Judge
Suddock concluded that it was equally conceivable that Campbells
speed was 30 miles per hour.
According to Officer Chafin, he realized that Campbell
was going to jump his vehicle over the curb at the edge of the
parking lot and flee west on Northern Lights Boulevard. Chafin
concluded that pursuing Campbell was too dangerous. He stopped
and turned off his overhead lights and siren. But after jumping
the curb onto Northern Lights Boulevard, Campbell drove across
all four lanes of traffic and up on the adjacent sidewalk. Then
Campbell jumped out of the van and attempted to climb a nearby
fence. As Campbell climbed, one of the boards broke free from
the fence and he fell to the ground. Campbell then broke
additional boards from the fence and ran into the back yard of
the adjacent home. The homeowner quickly tackled Campbell.
Officer Chafin then arrested Campbell. Campbell told Chafin that
he was a commercial airline pilot and had been drinking.
The State indicted Campbell for failure to stop at the
direction of a peace officer in the first degree,2 a class C
felony. The State also charged Campbell with several misdemeanor
offenses, including driving while under the influence and
resisting arrest.
Campbell filed a motion to suppress, arguing that
Officer Chafin had attempted an illegal stop and that all the
evidence of Campbells subsequent actions had to be suppressed
since they were caused by Chafins illegal action. Following
evidentiary hearings at which only Officer Chafin testified,
Judge Suddock granted Campbells motion to suppress. He found
that Officer Chafins conduct in attempting to stop Campbell for
the headlight violation was not justified. He concluded that, in
fleeing, Campbell had not endangered anyone to a greater extent
than he had before the stop, and therefore all of the evidence
against Campbell had to be suppressed.
The majority upholds Judge Suddocks ruling. But I
conclude that this ruling is inconsistent with the long-
established law of the Alaska Supreme Court.
The decision in this case is governed by state
constitutional law. In California v. Hodari D.,3 the United
States Supreme Court held that evidence that the police obtained
while a person was fleeing from unlawful police detention was not
subject to the exclusionary rule.4 But in Joseph v. State,5 we
rejected Hodari D. as a matter of state constitutional law.6
In Miller v. State,7 decided almost forty years ago,
the Alaska Supreme Court concluded that a person who is subjected
to a peaceful unlawful arrest has no right to physically resist
that arrest.8 The rule at common law was that a person was
privileged to use reasonable force to prevent an unlawful
arrest.9 But the supreme court concluded that, as a policy
matter, the remedy for a person who was subjected to an illegal
arrest was to sue the officer for false arrest rather than to
resist with force.10
The court set out several reasons for its decision:
The legality of a peaceful arrest may
frequently be a close question. It is a
question more properly determined by courts
than by participants in what may be a highly
emotional situation. Because officers will
normally overcome resistance with necessary
force, the danger of escalating violence
between the officer and the arrestee is
great. What begins as an illegal misdemeanor
arrest may culminate in serious bodily harm
or death.[11]
The court went on to say:
We feel that the legality of a peaceful
arrest should be determined by courts of law
and not through a trial by battle in the
streets. It is not too much to ask that one
believing himself unlawfully arrested should
submit to the officer and thereafter seek his
legal remedies in court. Such a rule helps
to relieve the threat of physical harm to
officers who in good faith but mistakenly
perform an arrest, as well as to minimize
harm to innocent bystanders. The old common
law rule has little utility to recommend it
under our conditions of life today. We hold
that a private citizen may not use force to
resist peaceful arrest by one he knows or has
good reason to believe is an authorized peace
officer performing his duties, regardless of
whether the arrest is illegal ... .[12]
It seems to me that the reasoning of Miller applies in
this case. First, it is almost impossible for a driver to
determine whether an officer is making an illegal stop. An
officer can legally stop a driver for numerous things, including
equipment violations such as a burned-out taillight or an
obscured license plate. Therefore the supreme courts observation
in Miller that a citizen will frequently not know whether an
arrest is legal or illegal is even more compelling in the case of
a traffic stop. Furthermore, a person who is subjected to an
illegal arrest faces a much greater intrusion into his personal
liberty than does a person who is subjected to an illegal traffic
stop. But most importantly, it seems to me that the act of
fleeing from a traffic stop is more dangerous to the person
fleeing, the officer, and innocent bystanders than the act of
resisting an arrest. A person fleeing in an automobile is
fleeing in what can easily become a dangerous and deadly weapon.
It seems reasonable to assume that the person who is fleeing from
the officer will be paying attention to the pursuing officer
rather than to his driving. Therefore, a person fleeing from the
police almost invariably puts innocent members of the public in
danger. Once Campbell started to flee, Officer Chafin almost
immediately stopped his pursuit in compliance with the local
policy in this jurisdiction and many others. This policy is
based upon the conclusion that pursuing suspects who are fleeing
from the police is exceptionally dangerous. Yet if the suspect
commits a sufficiently dangerous act in fleeing from the police,
the police can then make a lawful arrest.13
You also have to question why someone would flee from a
traffic stop. Is this something we really want to encourage? In
the present case we have a good idea why Campbell fled. He was a
commercial airline pilot and he had been drinking, apparently
enough to result in a charge of driving while under the
influence. He was concerned that being caught by the police
would affect his commercial pilots license.
Therefore, it seems to me that the policy set out in
the majority opinion tends to encourage suspects to flee and the
police to pursue. We are not talking about doing away with the
exclusionary rule. Had Campbell stopped, all of the evidence
against him would have been suppressed. All of the charges
against Campbell arose from his illegal, and potentially
dangerous, act of fleeing from the police. As I have pointed
out, the evidence that arose from his attempt to elude the
traffic stop would be admissible under federal law. Why would we
want to interpret the Alaska Constitution to encourage this
behavior? The decision by the Alaska Supreme Court in Miller
points the way. When a police officer initiates a traffic stop,
the sensible thing for the citizen to do is to pull over and
submit to the stop, rather than flee. Why would we want to send
any other message? I conclude that Campbells motion to suppress
should have been denied.
_______________________________
1 AS 28.35.182(a).
2 AS 28.35.030(a)(1).
3 AS 11.56.700(a)(1).
4 AS 11.46.486(a).
5 AS 28.10.481.
6 999 P.2d 169, 174-76 (Alaska App. 2000) (holding that the
exclusionary rule barred the State from relying on a municipal
pedestrian control ordinance to justify a police officers arrest
of a witness who ran from the officer on the street in violation
of the ordinance after the police officer illegally seized the
witness).
7 13 AAC 04.010(a)(1) provides:
Every vehicle traveling on a highway or other vehicular
way or area within the state must illuminate lights ...
between one half hour after sunset and one half hour
before sunrise[.]
8 Chandler v. State, 830 P.2d 789, 792 (Alaska App. 1992).
9 State v. Wagar, 79 P.3d 644, 650 (Alaska 2003).
10Id.
11Schmid v. State, 615 P.2d 565, 574 (Alaska 1980); State v.
Grier, 791 P.2d 627, 631 (Alaska App. 1990).
12See http://www.timeanddate.com (follow The World Clock -
Time Zones hyperlink; then follow Anchorage hyperlink; the Find
sunrise and sunset-times for other dates hyperlink); see
http://stardate.org (select Stargazing column and follow Sunrise
& Sunset hyperlink; then follow Anchorage hyperlink; then select
Pacific Standard and Go to Step 3).
13Castle, 999 P.2d at 170-71.
14Id. at 174-75.
15Id. at 177.
16Id. at 170-71.
17Id. at 171.
18145 P.3d 595 (Alaska App. 2006).
19499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991).
20Joseph, 145 P.3d at 604.
21595 A.2d 282 (Vt. 1991).
22581 N.E.2d 1344 (N.Y. 1991).
23324 N.E.2d 872 (N.Y. 1975).
24Castle, 999 P.2d at 176-77.
25Alexander, 595 A.2d at 283.
26Id. at 284.
27Id. at 285.
28Id.
29Id. at 283.
1 13 Alaska Administrative Code 04.010(a)(1).
2 AS 28.35.182(a).
3 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991).
4 Id. at 629, 111 S. Ct. at 1552.
5 145 P.3d 595 (Alaska App. 2006).
6 Id. at 596.
7 462 P.2d 421 (Alaska 1969).
8 Id. at 426-27.
9 5 Am. Jur. 2d Arrest 89 (2008); Jeffrey F. Ghent,
Annotation, Modern Status of Rules as to Right to Forcefully
Resist Illegal Arrest, 44 A.L.R. 3d 1078, 2(a) (1972).
10Miller, 462 P.2d at 426.
11Id.
12Id. at 427.
133 Wayne R. LaFave, et al., Criminal Procedure 9.4(f), at
464-66 (3d ed. 2007).
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