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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
| JOSEPH W. COFEY, | ) |
| ) Court of Appeals No. A-10079 | |
| Appellant, | ) Trial Court No. 4FA-06-3118 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) |
| ) No. 2238 September 18, 2009 | |
Appeal from the
Superior Court, Fourth Judicial District,
Fairbanks, Randy M. Olsen, Judge.
Appearances: Tracey Wollenberg, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Douglas H. Kossler, 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.
In this appeal we consider whether a police officer
conducted an investigative stop when he used his red overhead
lights to contact a pedestrian. We conclude that the officer
made an investigative stop when he pulled up behind the
pedestrian, activated his overhead lights, jumped out of his
patrol car, and instructed the pedestrian to approach the car.
Background
Late in the evening on August 18, 2006, Fairbanks
Police Officer James OMalley was dispatched to the Cofey
residence after the police department received a report of a
fight or disorderly conduct. The dispatcher informed OMalley
that a car containing some of the people involved in the incident
had departed the scene.
As OMalley neared the residence, he saw two
individuals on a street about twenty yards behind the residence.
One of the men ran away and the other, Joseph W. Cofey, looked at
OMalley and then started to walk away. Cofey walked in front of
OMalleys patrol car and OMalley pulled ahead so that Cofey was
illuminated by the vehicles headlights. Officer OMalley then
activated his overhead lights to let Cofey know that he wanted to
talk to him.
OMalley had no information that Cofey was involved in
the incident, and there was no indication that Cofey had been a
victim or witness of any assault. OMalley observed no commotion,
yelling, or physical confrontation between the two men. Prior to
OMalleys contact, Cofey had done nothing to suggest that he was
armed and dangerous.
After he activated his overhead lights, Officer
OMalley jumped out of his car and said, Come over here, I need to
talk to you. Cofey responded Yeah, walked a couple of steps,
and stopped in a driveway. Cofey then began to dig in his front
jacket pockets. OMalley asked him to take his hands out of his
pockets several times and Cofey responded Yeah, okay, I will, but
continued to dig in his pockets. OMalley could see a hard object
in one of Cofeys pockets, and concluded that he might be trying
to find a weapon. Officer OMalley then drew his weapon and
ordered Cofey to take his hands out of his pockets.
Cofey was startled when he saw Officer OMalley
pointing his weapon at him and threw both of his hands into the
air. In his left hand, Cofey held a baggie containing cocaine,
which he then tossed over his left shoulder. Officer OMalley
arrested Cofey, and discovered that the hard object in Cofeys
pocket was actually two cell phones.
Before trial, Cofey moved to suppress the cocaine
evidence, arguing that Officer OMalley stopped him illegally
without reasonable suspicion. In his ruling denying Cofeys
motion, the trial judge found that when the officer first
approached Cofey, there was no reason to suspect criminal
activity by Mr. Cofey as he was standing out in the street or
along the side throwing a football, and that at that point there
would have been no reason to detain him for any reason.
However, the judge also concluded that Officer
OMalleys activation of his overhead lights did not transform the
contact into a stop, reasoning that the lights served to identify
OMalley as a police officer, and noting that Cofeys testimony
indicated that he was not worried about the lights. The judge
further concluded that when Cofey began digging in his pockets
and refused to remove his hands, the officer was entitled to stop
Cofey in order to protect himself.
After the judges ruling, a jury convicted Cofey of one
count of fourth-degree misconduct involving a controlled
substance.1
When Did This Encounter Become an Investigative Stop?
When we review the denial of a motion to suppress
evidence, we view the record in the light most favorable to the
judges findings, and we accept the findings unless they are
clearly erroneous.2 We independently determine whether a trial
courts factual findings support the conclusion that an
investigative stop was justified.3
A police officer is authorized to make an
investigative stop when the officer has a reasonable suspicion
that an imminent public danger exists or that serious harm to
persons or property has recently occurred, and that the
individual presents that danger or has caused that harm.4 But an
officer does not conduct an investigative stop by merely
approaching an individual on the street or in another public
place, by asking him if he is willing to answer some questions,
[or] by putting questions to him if the person is willing to
listen ... .5 Deciding whether a police-citizen contact rises to
the level of an investigative stop requires an objective
determination: [W]hether or not a reasonable person would
believe that he or she was free to go.6
We noted in Ozhuwan v. State that an officers
activation of his overhead lights is the traditional hallmark of
a traffic stop.7 In that case, an officer saw two cars parked
near a campground boat launch that was frequently used by minors
as a place to consume alcohol.8 The officer drove his patrol car
to within approximately ten yards of the parked cars, positioned
his car between the cars and the exit to the boat launch area,
and activated his overhead lights and high-beam headlights before
exiting his car to contact the parked vehicles.9 We concluded
that the police conduct was virtually tantamount to an overt
command to stay put.10
However, police overhead lights may not always carry
the same meaning for a pedestrian. The District of Columbia
Court of Appeals has suggested that there is a critical
difference between an officers turning his vehicles flashing
lights on to signal a motorist to stop and turning on emergency
equipment to stop a pedestrian.11 As that court explained,
pedestrians ordinarily [are] not likely to know that an officer
is signaling for a stop until the officer communicates [his
intention] in a more direct manner ... .12
Accordingly, something more than the mere activation
of overhead lights may be required to establish that a pedestrian
has been subjected to an investigative stop. In a case similar
to the one before us, the District of Columbia Court of Appeals
found that a pedestrian had indeed been subjected to an
investigative stop:
In this case, [beyond the activation of
the officers overhead lights,] we have [an]
additional component. Here, not only did
the officers drive right up to appellant
with the lights on and siren running, but
Officer Carter testified that [w]hen we got
to the location, I got out of the car, and
then I asked Mr. Davis to come over to the
car. . . . We do not think that a
reasonable person in that situation would
have felt free to leave or decline to
comply.[13]
The court thus concluded that the police officer did effect a
stop by pulling up to the pedestrian, activating his overhead
lights, getting out of the car, and telling the pedestrian to
come over to the car.14
In the present case, we need not decide whether a
police officers activation of his patrol cars overhead lights,
standing alone, can constitute an investigative stop of a
pedestrian because, even if we were to adopt this rule, it would
make no difference to our resolution of Cofeys case. Cofey was
subjected to additional coercive measures beyond the activation
of the patrol cars lights. Cofey was the only pedestrian in the
area. OMalley pulled up behind Cofey, positioning his car so
that Cofey was illuminated by his headlights. OMalley then got
out of his car and instructed Cofey, Hey, ... come over here ...
I need to talk to you.
Given all of these circumstances, even if Cofey had
not initially understood that the activated overhead lights were
directed at him, OMalleys subsequent actions, combined with his
statement to Cofey, all conveyed that the officer was directing
Cofey to stop. At that point, a reasonable person in Cofeys
situation would conclude that he was not free to leave.
Accordingly, Cofeys encounter with Officer OMalley was an
investigative stop.
Was the Stop Supported by Reasonable Suspicion?
As explained above, to perform an investigative stop
an officer must have a reasonable suspicion that an imminent
public danger exists or that serious harm to persons or property
has recently occurred, and that the individual stopped presents
that danger or has caused that harm.15 But, as the trial court
found, at the time Officer OMalley directed Cofey to approach his
car, Cofey had done nothing to suggest that he posed a danger or
that he had caused any harm. Although OMalley testified that he
was suspicious because Cofey looked at him and then start to walk
away, he did not articulate any reason to believe that Cofey
presented any imminent danger or had caused any type of harm.
The trial court found that when Officer OMalley first
approached Cofey, there was no reason to suspect criminal
activity by Mr. Cofey as he was standing out in the street or
along the side throwing a football, and that at that point there
would have been no reason to detain him for any reason.
Accordingly, we conclude that there was no reasonable suspicion
to support the stop.
Conclusion
We conclude that Cofey was subjected to an
investigatory stop when Officer OMalley activated his overhead
lights and directed Cofey to approach his patrol car. The
evidence discovered during this stop should have been suppressed
because the stop was not supported by reasonable suspicion. We
therefore REVERSE the superior courts judgment.16
_______________________________
1 AS 11.71.040(a)(3)(A).
2 Stumbaugh v. State, 599 P.2d 166, 172 (Alaska 1979);
Gallmeyer v. State, 640 P.2d 837, 839 (Alaska App. 1982).
3 Beauvois v. State, 837 P.2d 1118, 1121 (Alaska App. 1992).
4 Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).
5 Waring v. State, 670 P.2d 357, 363 (Alaska 1983) (quoting
Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L.
Ed. 2d 229, 236 (1983)).
6 Id. at 364.
7 786 P.2d 918, 921 (Alaska App. 1990).
8 Id. at 920.
9 Id.
10 Id.
11 Lawrence v. United States, 509 A.2d 614, 616 n.2 (D.C.
1986).
12 Davis v. United States, 781 A.2d 729, 740 (D.C. 2001).
13 Id.
14 Id.
15 Coleman, 553 P.2d at 46.
16 In view of this disposition, we do not address the
other issues that Cofey raises in this appeal.
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