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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| CHARLES EDWIN NEWSOM, | ) |
| ) Court of Appeals No. A-9984 | |
| Appellant, | ) Trial Court No. 3AN-05-10239 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2204 January 9, 2009 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Philip R. Volland
and Michael L. Wolverton, Judges.
Appearances: Doug Miller, Assistant Public
Advocate, Appeals & Statewide Defense
Section, and Joshua Fink and Rachel Levitt,
Public Advocates, Anchorage, for the
Appellant. Diane L. Wendlandt, 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 Bolger, Judges.
MANNHEIMER, Judge.
In this case we are asked to clarify the scope of the
investigative stops authorized under the search and seizure
clause of the Alaska Constitution (Article I, Section 14) as
interpreted in Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).
The question is whether Coleman allows police officers to conduct
an investigative stop for the purpose of detaining and
identifying a person who is suspected of being the driver of a
vehicle who fled rather than submit to a traffic stop.
As we explain in more detail in this opinion, the
officers in this case were in hot pursuit of the driver, the
investigative stop was required as a matter of practical
necessity, and the stop was conducted in a manner that was
minimally intrusive. For these reasons, we conclude that the
stop was lawful under the Coleman test as we interpreted that
test in State v. G.B., 769 P.2d 452 (Alaska App. 1989).
We also reject Newsoms claims that the evidence
presented to the grand jury was insufficient to support the
indictment, and that the evidence presented at his trial was
insufficient to support the jurys verdict.
Underlying facts
Just after midnight on October 29, 2005,
Anchorage Police Officer Michael Busey turned on his
overhead lights and attempted to perform a traffic stop
of a car that was being driven without its headlights
on. The driver of this car was later identified as the
defendant in this case, Charles Edwin Newsom.
Rather than submit to the traffic stop,
Newsom fled. Newsom accelerated, weaved through
traffic, and then made a sudden right turn onto an
intersecting street. Busey concluded that it was too
dangerous to chase Newsom, so he followed at a slower
speed and thus lost sight of him.
While Newsom was out of Buseys sight, he took
the opportunity to abandon his car in a nearby parking
lot, and he then ran away toward a nearby Walmart
store. As Newsom made his way toward the Walmart,
Busey found the abandoned car. Busey broadcast a
description of what had just occurred, including the
fact that the driver had absconded (although Busey did
not know in what direction). In this broadcast, Busey
described the driver as a white adult male with dark
(or dark brown) hair.
Two plainclothes officers who had just
stopped to eat at a nearby restaurant responded to the
summons for help. Because it was late at night, and
because Walmart was one of the only stores in the
vicinity that was still open, the two officers decided
to check Walmart for the escaped driver.
As the two officers pulled into the Walmart
parking lot, one of them (Officer Jeffrey Bell) noticed
a man walking hurriedly from the direction of the
northwest corner of the parking lot, heading toward the
store entrance. This man caught Bells attention for
two reasons. First, the man appeared to be in a hurry
to get into the store, and he was looking back over his
shoulder as he entered. Second, the man was wearing
shorts, even though the temperature was around 25
degrees.
Bell got out of his car and entered the
Walmart to see if he could find this man or anyone else
who matched the description broadcast by Officer Busey
and who was acting suspiciously. Bells partner,
Sergeant Christopher Sims, remained in the car to meet
Officer Busey and the other officers who had come to
assist him.
When Bell got inside the store, he realized
that the store was closing and that the store employees
were rounding people up to [get them to] exit the
store, or to check out. Bell found the man in shorts
that he had seen entering the store. He noticed that
this man didnt appear to be shopping; rather, he was
just walking around, pacing ... . [He] wasnt pushing a
cart, [and he] didnt have anything in his hands. In
addition, the man looked nervous and frantic, and he
appeared to be sweating even though he had removed his
coat.
As Bell followed this man, the man headed
back to the main exit (i.e., the front entrance to the
store). At this same time, Sergeant Sims was trying to
enter the store. When a store employee tried to stop
Sims by telling him that the store was closing, Sims
(who, again, was in plain clothes) identified himself
as a police officer who was looking for someone inside
the store. Immediately after Sims identified himself
as a police officer, Newsom turned around and
essentially ran into Bells arms. Bell caught him and
held him. When Bell told Sims that he thought they had
just caught the person they were looking for, Newsom
responded by asking if it was illegal to be drunk.
It was now 12:17 a.m. approximately seven
minutes after Busey announced on the radio that he was
halting his pursuit of the fleeing driver. Sims
broadcast that he had detained a suspect, and that the
suspect exhibited a strong smell of alcohol. Bell and
Sims remained with Newsom until Busey and witnesses
from the parking lot were brought to the front of the
store to identify Newsom. While they were waiting,
Newsom told the officers, Ill bet my girlfriend called
me in [for] drunk driving again, didnt she? Newsom
also told the officers that they should just take [him]
to jail, [because he was] on probation anyway.
Essentially contemporaneously (at
approximately 12:18 a.m.), police dispatch notified the
officers that a woman had called the police just before
midnight to report that her car had been stolen by her
boyfriend. The woman did not identify herself, nor did
she identify her boyfriend, but she did tell the police
operator that the car was registered to her father,
Terry Farr. When Officer Busey ran the license plates
on the car that Newsom had abandoned, he found out that
the registered owner was Terry Farr. Busey then called
Mr. Farr, who identified his daughters boyfriend as
Charles Newsom.
Meanwhile, back at the Walmart store, Newsom
was identified by two witnesses who had been in the
Walmart parking lot when Newsom approached the store.
These witnesses told the police that Newsom had walked
up to their cars and had asked each of them for a ride
offering to pay $20 if they would take him a few
blocks.
Additional confirmation of Newsoms identity
as the driver of the car was provided by a police
tracking dog, Bolo. After Busey broadcast his original
report, Bolos handler, Officer Aaron Whitt, drove to
meet Busey at the location of the abandoned car. When
Whitt arrived, he set Bolo tracking from the drivers
side of the car, in an attempt to locate the driver.
At essentially the same time that Sims and Bell were
looking for the driver inside Walmart, Bolo was
following the drivers trail to the north side of the
Walmart store, and then to the main entrance of the
store, where Whitt stopped him.
Newsom was ultimately convicted of first-
degree (felony) failing to stop at the direction of a
police officer under AS 28.35.182(a)(1) i.e., a
failure to stop accompanied by an act of reckless
driving as defined in AS 28.35.400(a).1 Newsom was
also convicted of driving while his license was revoked
or suspended.
The primary issue presented on appeal: Does Coleman v.
State allow the police to conduct an investigative stop
under these circumstances?
Officer Busey saw Newsom commit a traffic
offense, and he also saw Newsom commit the crime of
failing to stop at the direction of a police officer.
Thus, Busey was authorized to arrest Newsom. If Busey
had been able to keep Newsom in his sight and capture
him, there would be no Coleman issue in this case
i.e., no issue involving an investigative stop.
But Newsom abandoned his car and absconded
from the scene before Busey could locate the car.
Minutes later, Newsom was stopped inside the nearby
Walmart by two other officers, Sims and Bell. These
two officers knew (from Buseys radio report) that the
driver of the abandoned car had failed to stop at
Buseys direction, but they did not know for certain if
the man they had stopped inside Walmart was the driver
they were seeking.
An argument could be made that, given the
information known to the community of police officers
engaged in the chase i.e., the totality of information
known to Busey, Sims, Bell, and Whitt (Bolos handler)
at the time that Sims and Bell detained Newsom inside
the Walmart store there was probable cause to identify
Newsom as the driver of the car (and, thus, legal
justification to arrest Newsom). However, this
argument would rest on a broad view of the community of
knowledge doctrine.
When Sims and Bell went to Walmart and then
located and detained Newsom, they were responding to
Buseys report that the driver of the car had failed to
stop and then had abandoned the vehicle and fled on
foot. Along with the contents of this report, Sims and
Bell relied on their own observations of Newsoms
approach to the Walmart store and his behavior inside
the store. But Sims and Bell were not subjectively
aware of the additional information obtained by Busey
and Whitt (aided by Bolo) after Busey broadcast his
request for assistance.
The State argues that when a court assesses
the validity of the investigative stop, the court may
consider the totality of the information collectively
known to all the officers engaged in the pursuit. But
the case that the State cites for this proposition
State v. Prater, 958 P.2d 1110 (Alaska App. 1998)
involved a different aspect of the community of
knowledge doctrine. Prater involved an investigative
stop of a suspected drunk driver that was prompted by a
citizens telephone report to the community REDDI
program (report every drunk driver immediately).2 The
issue in Prater was whether the investigative stop
could be justified by information that was communicated
to the police dispatcher by the citizen, but which the
police dispatcher failed to specifically recite when
the dispatcher broadcast the alert to the officers in
the field.3 We held that this information could be
used to justify the stop.4
Newsoms case is different from Prater
because, in Newsoms case, the State wishes to rely on a
collectivity of knowledge that includes significant
additional information separately obtained by Busey, as
well as significant additional information separately
obtained by Whitt (and Bolo), after Busey broadcast his
request for assistance. The parties briefs do not
focus on this distinguishing factor, and we are
hesitant to issue a decision on this point without
pertinent briefing.
Moreover, as we explain in the remainder of
this opinion, we conclude that the investigative stop
of Newsom inside the Walmart store can be justified
based on Buseys knowledge at the time of his broadcast
and the additional information obtained by Sims and
Bell when they responded to Buseys call for assistance.
We will therefore resolve this appeal under the
assumption that Sims and Bell did not have probable
cause to arrest Newsom, but rather only reasonable
suspicion that Newsom was the driver of the car.
Because Sims and Bell did not have probable
cause to arrest Newsom, this means that their detention
of Newsom constituted an investigative stop to
determine whether Newsom was the driver of the car.
And under the doctrine announced in Coleman v. State,
Alaska law allows the police to conduct investigative
stops only when imminent public danger exists or when
the crime under investigation involves recent serious
harm to persons or property. 553 P.2d at 46.
Newsom argues that, because Coleman limits
investigative stops in this fashion, the investigative
stop in his case was unlawful since (according to
Newsom) the facts of his case fail to satisfy either
prong of the Coleman test.
In particular, Newsom contends that, at the
time of the stop, he posed no danger to anyone: his
act of reckless driving was over, he had abandoned his
girlfriends car, and the car was already secured by
police officers. Newsom further contends that, even
though he may have committed a traffic violation
(driving at night with his headlights off), as well as
the more serious offense of failing to stop at the
direction of a police officer, neither of these
offenses involved serious harm to persons or property.
Why we conclude that this investigative stop was lawful
It is true that the text of the Coleman
opinion suggests that there was insufficient
justification for the investigative stop of Newsom
inside the Walmart store. But in State v. G.B., 769
P.2d 452 (Alaska App. 1989), this Court adopted a broad
interpretation of the Coleman rule.
In G.B., an employee of a video store saw the
defendant standing on the side of the counter normally
occupied by store employees. When the employee
confronted G.B., G.B. ran from the store. The
employee, suspecting that G.B. had just committed a
theft, telephoned the police. By chance, a state
trooper was nearby; almost immediately after hearing
the police dispatch, the trooper observed a young man
on foot who matched the store employees description of
the suspected thief. The trooper performed an
investigative stop, and this stop led to the discovery
of $800 in cash that the defendant had just stolen from
the store.5
The superior court ruled that this
investigative stop failed to meet the Coleman test.
The superior court pointed out that, even though the
theft turned out to be felony (i.e., a theft of $500 or
more)6, the only supportable suspicion at the time of
the stop was that G.B. had committed shoplifting or
some other minor theft a crime that posed no immediate
danger to anyone, and that was not serious enough to
qualify as recent serious harm to persons or property.7
On appeal, this Court reversed the superior
courts ruling. We held that this reading of the two
Coleman categories was too rigid.8
In particular, we rejected the notion that
Coleman categorically bars investigative stops for
certain categories of crime. Instead, we held that
even though the theoretical seriousness of the crime
[being investigated] is a significant factor when
applying the Coleman test, the seriousness of the crime
is not in itself determinative.9 In particular, we
declared that [a] minimally intrusive stop based on
solid information indicating that a crime is actually
in progress or has just been completed may be justified
under Coleman even when the crime itself is not a
felony and involves harm that in other contexts might
not seem particularly serious.10
We also explained that when a court analyzes
these close or borderline cases, the court should focus
on two principles highlighted by the Coleman decision.
The first is to ensure that the police do not employ an
investigative stop (i.e., a temporary custody based
merely on reasonable suspicion rather than probable
cause) as a pretext to conduct a search for evidence.
The second is to allow the police to perform temporary
stops when a prompt investigation [is] required as a
matter of practical necessity.11
Applying this analysis to the facts of
Newsoms case, we conclude that the investigative stop
was lawful.
First, the police had solid information that
the driver they were seeking had just committed the
crime of eluding a police officer. In fact, even
though Officer Busey did not immediately draw the
conclusion that he had witnessed first-degree eluding
(i.e., a felony), the circumstances known to Busey at
the time were sufficient to support this inference.
Those same circumstances were sufficient to convince
Newsoms trial jury, beyond a reasonable doubt, that
Newsom had in fact committed the additional offense of
reckless driving in his efforts to elude Busey, and
that Newsoms offense was therefore a felony.
We also note that the police knew that the
driver had abandoned the car and had fled on foot
circumstances indicating that something more serious
was occurring than simply a driver wishing to avoid a
traffic ticket.
Second, the investigative stop was
essentially contemporaneous with the commission of the
crime. As we explained above, the stop occurred
approximately seven minutes after Busey announced on
the radio that he was halting his immediate pursuit of
the fleeing driver. Sims and Bell, the two officers
who found Newsom inside Walmart, were acting in direct
response to Buseys radio report. For all intents and
purposes, they were acting on Buseys behalf in
conducting a hot pursuit of the fleeing driver.
Third, the stop itself was minimally
intrusive. Sims and Bell held Newsom for a few minutes
until he could be more plainly identified as the driver
of the abandoned car. Once there was probable cause to
identify Newsom as the driver, the police were entitled
to arrest him and, thus, the ensuing detention of
Newsom was no longer governed by Coleman.
Fourth, there was plainly a need for quick
action if the driver of the car was to be apprehended
before he or she left the immediate area. In the
language of Coleman and of G.B., a prompt investigation
was required as a matter of practical necessity.
And fifth, nothing in the facts of Newsoms
case suggests that the investigative stop was conducted
as a pretext for a search of Newsoms person or
belongings. Indeed, in Newsoms briefs to this Court,
he does not even assert that the police searched him in
any fashion during the investigative stop.
For these reasons, we conclude that the
investigative stop of Newsom inside the Walmart store
was lawful under Coleman, as interpreted in G.B..
Newsoms argument that the grand jury evidence was
insufficient to support the conclusion that he
committed the offense of reckless driving in his
efforts to elude Officer Busey
Newsom challenges the sufficiency of the
evidence presented to the grand jury with respect to
the charge of felony eluding. In particular, Newsom
argues that the evidence presented to the grand jury
was not sufficient to support the conclusion that
Newsom engaged in reckless driving in his efforts to
elude Officer Busey.
When a defendant challenges the sufficiency
of the evidence supporting an indictment, the test is
whether the evidence heard by the grand jury, if
unexplained or uncontradicted, is adequate to persuade
reasonable jurors or a judge to convict a person of the
offense charged. Wilkerson v. Division of Family and
Youth Services, 993 P.2d 1018, 1025 (Alaska 1999).12
As we explained above, a person commits
felony eluding (i.e., first-degree failure to stop at
the direction of police officer) under AS 28.35.
182(a)(1) if the person fails to stop at the police
officers direction and, in so doing, the person also
commits the offense of reckless driving as defined in
AS 28.35.400(a) formerly numbered AS 28.35.040. This
latter offense consists of [driving] in a manner that
creates a substantial and unjustifiable risk of harm to
a person or to property with substantial and
unjustifiable risk defined as a risk of such a nature
and degree that conscious disregard of it or failure to
perceive it constitutes a gross deviation from the
standard of conduct that a reasonable person would
observe in the situation.13
When Busey testified at the grand jury, he
described his attempt to stop Newsoms car:
Officer Busey: I got behind [the car
and] ... activated my overhead lights, and
actually also turned on my spotlight. And as
soon as I did that there was actually a car
in front of the vehicle and another one
alongside it [the car] accelerated and cut
between the [other] two vehicles, and [then]
whipped around the one in front of it. And
then, as it continued eastbound, [the car]
turned [right] and went onto Denali [Street]
over the curb.
Busey told the grand jury that he
decided not to engage in an immediate pursuit
of Newsoms car because he (Busey) couldnt get
between the other two vehicles the way Newsom
had because they were just too close
together, and I wasnt going to take the
chance of getting in a collision.
Given this testimony, the grand
jurors could reasonably conclude that Newsoms
driving constituted a gross deviation from
the standard of conduct that a reasonable
person would observe in other words, that
Newsom committed the offense of reckless
driving in his efforts to elude Busey.
Newsoms alternative argument that the trial evidence
was insufficient to support the conclusion that he
committed the offense of reckless driving in his
efforts to elude Officer Busey
Newsom alternatively claims that even if the
grand jury evidence was sufficient to support a
charge of felony eluding, the evidence presented
at his trial was insufficient to support a guilty
verdict on this charge. Again, Newsoms claim
hinges on his assertion that the evidence was
insufficient to establish that he committed
reckless driving when he fled from Officer Busey.
At Newsoms trial, Busey was the only witness
who testified regarding Newsoms driving. Busey
testified that [Newsoms] vehicle had ... one
vehicle right next to it and another one ahead of
it and that, when Busey activated his overhead
lights, Newsom accelerated, cut between these [two
other] vehicles, got ahead of [the] one, then cut
back, and then ... took a right turn onto [Denali
Street] going southbound, and actually ran over
the curb.
Busey testified that Newsom [came] pretty
close to the other two cars within a car length
of each of them. He added that he did not attempt
to make the same maneuver between the two other
cars because he was afraid [he] would strike one
of them.
When a defendant challenges the sufficiency
of the trial evidence to support a verdict, we are
obliged to view the evidence in the light most
favorable to upholding the verdict.14 Viewing the
evidence in that light, it is sufficient to support a
finding that Newsom engaged in reckless driving under
the definition formerly codified in AS 28.35.040 and
currently codified in AS 28.35.400(a).
In the process of eluding Busey, Newsom
accelerated, changed lanes quickly, darted between
adjacent cars, and made a right turn so abruptly that
his tires went over the curb in the process.
Fortunately, Newsom did not cause an accident when he
engaged in these maneuvers. Nevertheless, reasonable
jurors could conclude that Newsom drove in a manner
that created a risk of harm to persons or property, and
that this risk was of such a nature and degree that
[Newsoms] conscious disregard of it or failure to
perceive it constitute[d] a gross deviation from the
standard of conduct that a reasonable person would
observe in the situation. Accordingly, we conclude
that the trial evidence was legally sufficient to
support the verdict.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 At the time of Newsoms offense, the reckless driving statute
was numbered AS 28.35.040.
2 958 P.2d at 1110-11.
3 Id. at 1111.
4 Id. at 1113.
5 G.B., 769 P.2d at 453-54.
6 See AS 11.46.130(a)(1) and 130(c).
7 G.B., 769 P.2d at 454.
8 Id. at 455.
9 Id.
10Id. at 456.
11Id. at 456, citing Coleman, 553 P.2d at 46.
12Citing State v. Parks, 437 P.2d 642, 644 (Alaska 1968), and
Alaska Criminal Rule 6(q).
13AS 28.35.400(a).
14See, e.g., Eide v. State, 168 P.3d 499, 500 (Alaska App.
2007); Simpson v. State, 877 P.2d 1319, 1320 (Alaska App.
1994).
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