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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| RICHARD DEWEESE, | ) |
| ) Court of Appeals No. A-10006 | |
| Appellant, | ) Trial Court No. 4FA-06-2168 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) |
| ) No. 2232 September 4, 2009 | |
Appeal from the
Superior Court, Fourth Judicial District,
Fairbanks, Randy M. Olsen, Judge.
Appearances: Margi Mock, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Timothy W. Terrell, 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.
BOLGER, Judge.
COATS, Chief Judge, concurring.
Richard Deweese entered a plea of no contest to fourth-
degree misconduct involving a controlled substance and reserved
his right to appeal the superior courts decision denying his
motion to suppress the evidence against him. This evidence was
obtained after a traffic stop where Deweeses vehicle was
subjected to a canine sniff. We conclude that the plea agreement
improperly restricted the evidence that we may consider on
appeal. We therefore dismiss the appeal and remand the case to
the superior court for further proceedings.
Background
On April 25, 2006, Alaska State Trooper Andrew
Ballesteros clocked Richard Deweese driving forty-seven miles per
hour in a forty mile-per-hour zone while Deweese was traveling
westward on Bradway Road in North Pole. Accordingly, Trooper
Ballesteros activated his emergency lights to conduct a traffic
stop.
Deweese initially turned left onto Dennis Road and
pulled into the parking lot of a fire station. But rather than
coming to a complete stop, he continued to travel south on Dennis
Road toward the Old Richardson Highway. As Deweese drove from
the parking lot back onto Dennis Road, Trooper Ballesteros could
see Deweese taking both of his hands off the steering wheel and
reaching toward the vehicles center console. While Deweese was
reaching for the console, his vehicle swerved in and out of the
roadway and onto the shoulder of the road. Deweese finally
stopped his vehicle near the railroad tracks before the Old
Richardson intersection.
After Deweese pulled over, Trooper Ballesteros asked
Deweese to step out of his vehicle and then performed a patdown
search. Deweese did not have his drivers license, but identified
himself as Richard Deweese. Ballesteros recognized Deweeses name
from anonymous tips alleging that Deweese was involved with
methamphetamine distribution. When asked about the delay in
pulling over his vehicle and his movements toward the center
console, Deweese replied that he was looking for his wallet and
drivers license.
Deweese also denied having any weapons, drugs, or
paraphernalia in his vehicle. Ballesteros asked what Deweese had
in his pockets, and Deweese responded that he had his keys and
some money. Deweese consented to Ballesteross request to see
this money, which amounted to $1,030, comprised of four $100
bills, three $50 bills, and twenty-four $20 bills. But Deweese
refused to give his consent for Ballestero to search the vehicle;
Ballesteros thus called for another trooper with a police dog to
perform a canine sniff of the vehicle.
Approximately fourteen minutes after Deweese was
initially stopped, Trooper Aaron Mobley arrived with a police
dog. Trooper Mobley walked the dog around Deweeses vehicle and
informed Ballesteros that the dog had been alerted to something
inside. Ballesteros then decided to impound Deweeses vehicle and
apply for a warrant to search inside.
When Ballesteros executed the warrant, he found a
black magnetized container with two small baggies of
methamphetamine in the center console. Deweese was thereafter
indicted for one count of third-degree misconduct involving a
controlled substance.1
Deweese filed a motion to suppress the evidence seized
from his vehicle, on the grounds that there was insufficient
cause to support the canine sniff and that the warrant was the
illegal fruit of that search. Superior Court Judge Randy M.
Olsen denied Deweeses motion, finding that Deweeses delay in
pulling over and his furtive motions toward the center console
established reasonable cause to support the canine sniff. Deweese
then entered into a Cooksey agreement with the State, where he
agreed to plead no contest to the reduced charge of fourth-degree
misconduct involving a controlled substance2 and reserved his
right to appeal Judge Olsens denial of his motion to suppress.3
Discussion
We require the issues reserved in a Cooksey plea to be
dispositive to avoid the possibility that parties will use the
procedure to require us to consider hypothetical and abstract
questions.4 In Dow v. State, we recently added a requirement
that a Cooksey plea agreement must be in writing and describe the
issue reserved for appeal by specifically referring to the facts
of the defendants case and the legal theories that the parties
are relying on.5
The parties to this case did file a written plea
agreement with the court. But two provisions in the plea
agreement cause us concern. Specifically, Paragraph 6 states
that the facts set forth in the courts written opinion on the
defendants motion to suppress the evidence are the undisputed
facts of the case. And Paragraph 8 states that [t]he legal
question is whether a delayed pull-over, together with furtive
movements with both hands into or under the center console,
create a circumstance where an office[r] could reasonably surmise
that the defendant was engaged in criminal activity, such that
the officer could detain the vehicle and subject it to a dog
sniff.
These two paragraphs appear to be directed at the
requirements we outlined in Dow. But their language also seems
to express an additional expectation: That this court, when
deciding the legality of the investigative stop and the dog
sniff, will confine itself to the abbreviated facts expressly
relied on by Judge Olsen in his written decision.
If this was indeed the agreement of the parties that
is, if Deweese entered his plea on the expectation that the
legality of the seizure and search would be adjudicated on less
than the full facts of his case then Deweeses Cooksey plea would
be unlawful.
As we explained above, one of the primary rules
governing Cooksey pleas is that these pleas may not be used to
bring hypothetical and abstract questions to an appellate court.
For this reason, we cannot allow the parties to fashion a Cooksey
plea that requires an appellate court to ignore relevant evidence
contained in the record.
In Deweeses case, for instance, Judge Olsens written
decision fails to mention or even discuss certain aspects of the
police testimony that potentially supported the investigative
stop and dog sniff. If Deweese had been convicted following a
trial and had then raised this issue on appeal, this court would
have been authorized to consider all of the testimony presented
on this issue not just the portions of the testimony expressly
mentioned by Judge Olsen in his decision.
If the testimony at the evidentiary hearing revealed
an undisputed factual basis for the seizure and search, then this
court would be authorized to affirm the superior courts decision
on that basis even if Judge Olsen did not consider this evidence
or consider it important.6 Or in the alternative, if the
testimony at the hearing suggested an alternate or supplemental
basis for the seizure and search of Deweeses vehicle, we could
remand the case to the superior court for supplemental findings
of fact.
Because these avenues of decision would be open to us
if this had been a normal appeal and because they could
potentially be necessary to a fair and just resolution of
Deweeses case, we cannot allow the parties to close these avenues
and require us to decide the case on truncated facts.
Accordingly, we hold that Deweeses Cooksey plea is
invalid because he apparently entered his plea based on a promise
that this court would decide the case based on an abbreviated set
of facts and that we would ignore anything else in the record
supporting the superior courts decision.
It is possible that Deweese and the State did not
intend to confine this court to the facts expressly mentioned by
Judge Olsen in his decision. The manner in which the parties
have briefed this appeal suggests that they viewed the facts
mentioned in Judge Olsens decision as only the starting point for
their analyses, leaving the parties free to raise additional
arguments based on the rest of the testimony presented at the
evidentiary hearing. But if this is how the parties understood
their Cooksey agreement, we would still be obligated to
invalidate Deweeses plea because there are no trial court
findings to support such arguments.
We are an appellate court: We cannot make new
findings of fact, nor can we resolve issues of weight or
credibility in the testimony. We can neither uphold nor reverse
Judge Olsens decision by making supplemental findings of fact
based on disputed or ambiguous testimony at the evidentiary
hearing. If the correctness of Judge Olsens decision rests on
unresolved issues, then Deweeses case must be remanded to the
superior court.
For example, the State argues that we should consider
the fact that Deweese was carrying over $1,000, which included a
large number of $20 bills. The trooper testified that Deweeses
possession of this money supported the suspicion that Deweese was
dealing illegal drugs. Deweese, for his part, argues that the
troopers discovery of this money was the result of an illegal
detention and patdown search, and that the trooper had no
authority to count the money after he determined that Deweese was
not armed. The trial courts decision, however, does not address
the issue of whether the troopers request to count Deweeses money
constituted an illegal search, or whether Deweeses possession of
this money supported the troopers decision to detain Deweeses
vehicle and call in the police dog.
The State also urges us to consider several other
evidentiary factors that were not recognized in the trial courts
opinion, including the anonymous phone calls stating that Deweese
was dealing methamphetamine, Deweeses failure to produce
identification, and his questionable explanations for his furtive
behavior.
The lack of findings by the trial judge regarding
these disputed issues may be determinative in this case. If we
do not consider the money that Deweese had in his pocket or the
other factors argued by the State, then Deweeses delay in pulling
over and his furtive gestures may suggest only that he was in
possession of some undetermined amount of illegal drugs.
Possession of a small amount of illegal drugs for personal use is
not an activity involving imminent public danger sufficient to
support a temporary detention.7
On the other hand, trafficking in illegal drugs is an
activity involving imminent public danger to public safety
sufficient to support a temporary detention.8 If we consider
Deweeses furtive behavior, along with the money and the other
factors argued by the State, then the trooper may have had
reasonable suspicion that Deweese was dealing in illegal drugs.
This suspicion could have justified the brief detention of his
vehicle for the canine sniff.
Conclusion
As we noted above, our decision in Dow requires the
parties to identify the issues preserved in a Cooksey plea
agreement by reference to the specific facts of their case. We
do not want to discourage plea agreements or reasonable factual
stipulations that promote the expeditious decision of an appeal.
But we cannot allow parties to pursue Cooksey agreements that
require this court to base its decisions on truncated records
that ignore relevant evidence presented to the lower court.
We therefore DISMISS this appeal.
COATS, Chief Judge, concurring.
According to the language of the parties plea
agreement, this case appears to present a simple legal question:
whether a delayed pull-over, together with furtive movements with
both hands into or under the center console, create a
circumstance where an office[r] could reasonably surmise that the
defendant was engaged in criminal activity, such that the officer
could detain the vehicle and subject it to a dog sniff. But if
we restricted ourselves to this statement of the case as set
forth in the plea agreement, it appears that Trooper Ballesteros
had at most reasonable suspicion that Deweese was in possession
of a controlled substance. (Deweese argues that the dog sniff
would have only detected the possible presence of drugs; it would
not have produced evidence of other criminal activity.)
Generally, reasonable suspicion that a person is in possession of
a small amount of illegal drugs for personal use would not
constitute imminent public danger justifying an investigative
stop.1 Therefore, Deweese would likely prevail if we decided
this case based solely on the facts set out in the plea agreement
and Judge Olsens findings.
But, as the record in this case and the briefs of the
parties make clear, there were more facts to this case than are
set out in Judge Olsens findings and the parties plea agreement.
The State argues that in addition to the delayed pullover,
together with furtive movements with both hands into or under the
center console, many other factors justified Trooper Ballesteross
actions. The State argues that Deweese engaged in furtive
movements ..., failed to produce identification, had over $1,000
in cash (with a substantial quantity of $20 bills), and gave
questionable explanations about the delay in pulling over, his
furtive movements, his lack of identification, and the length of
time he possessed the
car. The State argues that the totality of these circumstances
provided Trooper Ballesteros with reasonable suspicion that
Deweese was engaged in illegal drug activity. In his
brief, Deweese argues that his actions prior to the stop did not
support a reasonable suspicion that he had recently engaged in
any criminal activity. He argues that his subsequent actions and
explanations were reasonable and did not create reasonable
suspicion. In addition, he argues that Trooper Ballesteros
conducted an illegal search when he obtained and counted the
money from Deweeses pocket. He also points out that in his
findings, Judge Olsen did not give any weight to Deweeses
possession of the money.
Therefore, the parties plea agreement does not
encompass the facts of this case or the separate legal issue
Deweese raises on appeal. And even if this case had come to us
after a trial as a normal appeal, we would need to remand the
case for further findings from the trial court.
_______________________________
1 AS 11.71.030(a)(1).
2 AS 11.71.040(a)(3)(A).
3 See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska
1974).
4 Clark v. Anchorage, 2 P.3d 639, 642-43 (Alaska App. 2000);
Miles v. State, 825 P.2d 904, 905-06 (Alaska App. 1992).
5 Dow v. State, 155 P.3d 352, 355 (Alaska App. 2007).
6 Cf. Torrey v. Hamilton, 872 P.2d 186, 188 (Alaska 1994)
([T]his court may affirm the judgment on any appropriate grounds,
even if it is a ground which was rejected by the trial court.
(emphasis added)); Demoski v. New, 737 P.2d 780, 786 (Alaska
1987) (noting, An appellee may seek to defend a judgment on any
basis established by the record, whether or not it was relied on
by the trial court or even raised before the trial court);
Millman v. State, 841 P.2d 190, 195 (Alaska App. 1992) (same);
Russell v. Anchorage, 626 P.2d 586, 588 n.4 (Alaska App. 1981)
(In affirming the trial courts ruling, we are not bound by or
restricted to the theory used by the trial court in arriving at
its conclusion.).
7 Joseph v. State, 145 P.3d 595, 599 (Alaska App. 2006).
8 See Pooley v. State, 705 P.2d 1293, 1307 (Alaska App.
1985).
1 Joseph v. State, 145 P.3d 595, 599 (Alaska App. 2006).
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