You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Edwin Saltz v. State of Alaska, Division of Motor Vehicles (12/23/2005) sp-5972
Edwin Saltz v. State of Alaska, Division of Motor Vehicles (12/23/2005) sp-5972
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| EDWIN SALTZ,
| ) |
|
| ) Supreme Court No. S-
11676 |
|
Appellant, | ) |
|
| ) Superior Court
No. |
|
v. | ) 3KN-03-807
CI |
|
| ) |
|
STATE OF ALASKA, | ) O P I N I O
N |
|
DEPARTMENT OF | ) |
|
ADMINISTRATION, DIVISION | ) [No. 5972 - December 23,
2005] |
|
OF MOTOR VEHICLES, | ) |
|
| ) |
|
Appellee. | ) |
|
| ) |
|
|
|
|
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Charles T. Huguelet, Judge.
Appearances: Peter F. Mysing, Kenai, for
Appellant. Judith A. Crowell, Assistant
Attorney General, Anchorage, and Scott J.
Nordstrand, Acting Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
BRYNER, Chief Justice.
I. INTRODUCTION
The Alaska Division of Motor Vehicles revoked Edwin
Saltzs drivers license after he was arrested for driving away
from a bar while intoxicated. Saltz challenges the departments
finding that the officer had reasonable suspicion to stop his
truck, arguing that his truck did not match the description of
the truck provided by a caller informing the troopers office that
an individual was leaving the bar intoxicated. Because Saltzs
truck nearly matched the description provided by the caller and
was in the exact location the caller stated it would be, and the
time between the call and the stop was very short, we hold that,
based on the totality of the circumstances, the trooper had a
reasonable suspicion to stop Saltzs truck. Accordingly, we
affirm.
II. FACTS AND PROCEEDINGS
On April 13, 2003, Alaska State Trooper Darrel
Christensen was working the graveyard shift at the Soldotna
troopers office. At 2:05 a.m., a Soldotna resident made a REDDI
call to the troopers to report that an intoxicated male was
leaving the Maverick Bar in a blue and gray Ford F-350.1 Trooper
Christensen received the REDDI report, including the truck
description and its location, from the dispatcher.
Trooper Christensen immediately left the station and
drove towards the Maverick Bar. Because the Soldotna station is
just around the corner from the Maverick Bar, it took Trooper
Christensen approximately one minute to arrive at the bar. As
Trooper Christensen approached the bar in his patrol car, a large
Ford truck driven by Edwin Saltz pulled out of the Maverick
parking lot right in front of Trooper Christensen and onto the
highway. Believing that the truck matched the description of the
REDDI call, Trooper Christensen followed the truck for a short
distance. After making a turn, Saltz pulled into another parking
lot.
Trooper Christensen noticed that the truck did not have
mud flaps. Believing that Ford F-350s are required by the
vehicle code to have mud flaps because of their ride height,
Trooper Christensen followed Saltzs truck into the parking lot
and turned on his overhead lights to conduct a traffic stop.
Trooper Christensen smelled a strong alcohol odor when he
approached Saltz, and noticed that Saltz slurred when he spoke,
had bloodshot, watery eyes, and swayed.
Saltz told Trooper Christensen that he had been at the
Maverick Bar drinking. Trooper Christensen asked Saltz to
perform some field sobriety tests, but Saltz argued with Trooper
Christensen and continually refused to follow instructions.
Saltz eventually performed one of the sobriety tests and failed.
Trooper Christensen arrested him for driving under the influence
of alcohol. A breath test indicated that Saltzs blood alcohol
content was almost twice the legal limit for driving. Trooper
Christensen gave Saltz a Notice and Order of Revocation form
which explained that Saltz failed an alcohol breath test and
that, under Alaska law, the officer was required to confiscate
Saltzs drivers license.
Saltz requested an administrative hearing in order to
challenge the constitutionality of the stop of his truck. A
division hearing officer held a hearing in September 2003 and
Trooper Christensen and Saltz testified. Trooper Christensens
testimony matched his police report generated on the night he
arrested Saltz. On cross-examination Saltzs attorney revealed to
Trooper Christensen that Saltz did not have a Ford F-350, but
rather owned a Ford F-250. Trooper Christensen stated that this
information did not surprise him because the Ford F-250s and the
350s are the same body style but that the F-350 normally has a
higher suspension. Saltzs attorney also revealed that the truck
Trooper Christensen pulled over was not blue and gray, but red
and gray.
Saltz argued before the hearing officer that the stop
was illegal because his truck did not match the description of
the truck in the REDDI report, because Trooper Christensen did
not observe Saltz driving erratically, and because Trooper
Christensen did not measure the height of Saltzs truck to see if
it in fact needed mud flaps. Although the hearing officer noted
that Trooper Christensens photos showed a red and gray F-250, and
not a blue and gray Ford F-350, she found that Trooper
Christensen stopped Saltz because of the REDDI report and because
of the mud flap violation. Based on the REDDI report, the mud
flap violation, the time frame in which Trooper Christensen
contacted Saltz, and the seriousness of the offense, the hearing
officer concluded that Trooper Christensen had more than enough
reasonable suspicion to stop Saltz. She also found that Trooper
Christensen had probable cause after making the stop to believe
that Saltz was driving under the influence because the trooper
observed slurred speech, alcohol odor, and failure of the
sobriety test. Because Saltz had three prior convictions for
driving under the influence, the hearing officer revoked Saltzs
driving privileges for five years.
Saltz appealed the decision to the superior court. The
court held that the hearing officers factual findings were
supported by substantial evidence that Trooper Christensen was
justified in stopping Saltzs truck based on the REDDI call from a
local resident. The court additionally held that, regardless of
whether Saltzs truck exactly matched the REDDI report, Trooper
Christensen had probable cause to stop Saltzs truck for a mud
flap violation. The court affirmed the hearing officers
decision.
Saltz appeals.
III. DISCUSSION
We review an administrative hearing officers decision
to revoke an individuals drivers license independently of the
superior courts decision because the superior court acted as an
intermediate court of appeal.2 The court reviews an
administrative decision to revoke a drivers license to determine
if the department misinterpreted the law, acted in an arbitrary
and capricious manner, or made a determination unsupported by the
evidence in the record.3 Finally, we review the hearing officers
factual findings under the substantial evidence test, determining
whether the findings are supported by such evidence as a
reasonable mind might accept as adequate to support a conclusion.4
Saltz argues that the hearing officer erred in revoking
his license because Trooper Christensen did not conduct a lawful
investigatory stop of Saltzs truck. Specifically, Saltz argues
that Trooper Christensens stop of his truck was not supported by
a reasonable suspicion because his truck did not match the truck
contained in the REDDI report. Because his truck is a red and
gray Ford F-250, not a blue and gray Ford F-350 as reported by
the REDDI caller, Saltz argues that Trooper Christensen had no
actual basis for believing that Mr. Saltzs vehicle, as opposed to
the vehicle described by the REDDI caller, was being driven by an
intoxicated person.
In Alaska, an officer may make an investigatory stop
only when there are specific and articulable facts which create a
reasonable suspicion that imminent public danger exists, or
serious harm to persons or property has recently occurred.5 The
term reasonable suspicion has been described as where there is a
substantial possibility that conduct has occurred, is occurring,
or is about to occur,6 and is based on a totality of the
circumstances.7 We have held that where an officer has a
reasonable suspicion that a driver is operating a vehicle while
intoxicated, a sufficient imminent public danger exists for which
an officer may conduct an investigatory stop.8 Additionally, the
court of appeals has held that an officer may rely on information
obtained from a REDDI report so long as there are some indicia of
reliability.9
Saltz is correct in his assertion that the truck color
and model described in the REDDI report were different from the
color and model of his truck. But other factors considered by
Trooper Christensen at the time of the stop also provided some
indicia of reliability of the call. First, the fact that Saltzs
truck was a Ford F-250 rather than a Ford F-350 is not by itself
consequential. When confronted with evidence that he may have
pulled over the wrong model of truck, Trooper Christensen
testified that he was [not] surprised a bit because F-250s and F-
350s have the same body style . . . the only difference is the
350 has a little bit higher suspension. In United States v.
Hurst, the Sixth Circuit Court of Appeals upheld a vehicle stop
where a caller identified a potential burglars car as a dark-
colored [Ford] Thunderbird, even though the car stopped in the
same vicinity shortly after the burglary was a dark blue Mercury
Cougar.10 The court noted that the defendants car roughly
match[ed] the car described by the caller, and when taken with
all of the other circumstances, created specific and articulable
facts to justify the investigatory stop.11 Here, Trooper
Christensens testimony indicated that he saw no major differences
between F-250s and F-350s and would not be surprised to learn
that one had been mistaken for the other. No evidence
contradicted the troopers opinion, and other evidence supports a
finding that he had a reasonable suspicion to stop Saltzs truck.
The fact that Saltzs truck was red and gray, rather
than blue and gray, also does not defeat a finding that Trooper
Christensen had a reasonable suspicion to stop Saltz. Trooper
Christensen stopped Saltzs truck just after 2 a.m. while it was
dark outside. Trooper Christensen testified that the majority of
Saltzs truck was gray and that the gray color stands out when you
have overhead flashing lights. Saltz confirmed that his truck is
gray, but also noted that it has a very large red . . . component
to the paint job.
In State v. DaEria, a man called the police after two
men attempted to break into his vehicle in front of his fiancees
parents house, at 2:30 a.m., and fired shots at him when he tried
to prevent the break-in.12 The victim reported that the two men
drove away in a greenish Toyota.13 The Appellate Court of
Connecticut upheld the investigatory stop of the defendants car
even though he was actually driving a gray Toyota. The court
reasoned that given the less than optimal lighting conditions and
the situation in which the victim noticed the car, it was not
unreasonable for the officer to infer that the victim may have
mistakenly identified the color of the car.14 Moreover, the court
attached significant weight to the time of night the car was
stopped, the fact that the officer did not see any other cars on
the road between the time he received the call and when he made
the stop, and the fact that the stop occurred just four blocks
from the house where the victim was staying within a short time
after the victims call.15 The court held that the officer had a
reasonable suspicion to stop the defendants car, taking into
account the strength of those points of comparison [given by the
caller] which do match up and whether the nature of the
descriptive factors which do not match is such that an error as
to them is not improbable.16
Saltzs case is analogous to DaEria, and we find that
cases reasoning persuasive. Trooper Christensen observed Saltzs
truck within one minute of receiving the REDDI report, at the
exact location the caller stated the truck would be pulling out
of the Maverick Bar. Although he testified that there could have
been a blue and gray Ford F-350 nearby, Trooper Christensen
stated that he highly doubt[ed] it given the time frame [in the
middle of the night] . . . [i]ts a Ford pickup, majority-color
gray, and it was within a minute of the report. Trooper
Christensen noted in his report that the stop occurred at 2:07
a.m. and the lighting conditions were dark. After considering
all of the evidence, including the REDDI report, the time frame
in which Saltz was contacted, and the description of his pickup,
the hearing officer found that Trooper Christensen had more than
enough reasonable suspicion to stop Saltz. We agree that
although the truck described in the REDDI report did not match
Saltzs truck exactly, based on a totality of the circumstances,
Trooper Christensen was reasonable in believing that Saltzs truck
was the one identified by the caller, and that there was a
substantial possibility that Saltz was intoxicated. Nothing more
was required to justify the stop.
Saltz argues that his case is analogous to Mix v.
State,17 because the officer in Mix, similar to Trooper
Christensen, observed no erratic driving. But Saltz misreads
Mix. In that case, the court did not invalidate the stop due to
the officers failure to observe erratic driving. Rather, the
court found the stop to be invalid because the officer had no
information that the anonymous caller was a citizen informant,
the state did not present any evidence that the dispatcher had
knowledge about the caller that could be imputed to the officer,
and it was not even clear whether the locate was based on an
anonymous tip at all.18 Although Trooper Christensen did not know
the REDDI callers name at the time he stopped Saltz, he was aware
that a REDDI call was made. Moreover, there is no question that
the REDDI caller identified herself to the dispatcher, which can
be imputed to Trooper Christensen.19 Thus, Mix is inapplicable.
Based on the totality of the circumstances surrounding
the stop, then, the hearing officers findings are supported by
substantial evidence in the record, and are not clearly
erroneous.20
IV. CONCLUSION
For these reasons, we AFFIRM the hearing officers
decision.
_______________________________
1 REDDI stands for Report Every Drunk Driver Immediately.
This is a hotline number that went into effect on the Kenai
Peninsula in 1984 that allows callers to report drunk drivers
without providing personal information. The caller need only
provide the time and location they observed the suspected drunk
driver, the direction of travel, and the make, color, and if
possible, the license plate number of the vehicle. Effenbeck v.
State, 700 P.2d 811, 812 n.1 (Alaska App. 1985).
2 See Jager v. State, 537 P.2d 1100, 1106 (Alaska 1975).
3 AS 28.15.166(m); accord Miller v. State, Dept of Pub.
Safety, Div. of Motor Vehicles, 761 P.2d 117, 118 n.2 (Alaska
1988).
4 Borrego v. State, Dept of Pub. Safety, 815 P.2d 360,
363 (Alaska 1991).
5 Effenbeck, 700 P.2d at 812 (internal citations
omitted); see also Coleman v. State, 553 P.2d 40, 46 (Alaska
1976).
6 State v. Moran, 667 P.2d 734, 735-36 (Alaska App. 1983)
(citing W. LaFave, 3 Search and Seizure 9.3, at 65-66 (1978))
(emphasis in original).
7 United States v. Cortez, 449 U.S. 411, 417-18 (1981).
8 See State v. G.B., 769 P.2d 452, 455 (Alaska 1989); see
also Ebona v. State, 577 P.2d 698, 701 (Alaska 1978).
9 See Effenbeck, 700 P.2d at 812.
10 228 F.3d 751, 755-57 (6th Cir. 2000).
11 Id. at 757.
12 721 A.2d 539, 543 (Conn. App. 1998).
13 Id.
14 Id. at 546.
15 Id. at 547.
16 Id. at 546 (quoting State v. Rodriguez, 684 A.2d 1165,
1171 n.18 (Conn. 1996)) (emphasis added).
17 893 P.2d 1270 (Alaska App. 1995).
18 Id. at 1272-73.
19 See State v. Prater, 958 P.2d 1110, 1113 (Alaska App.
1998).
20 Saltz also argues that Trooper Christensen did not
have probable cause to pull over his truck for a mud flap
violation. Because we hold that Trooper Christensen had
reasonable suspicion to believe that Saltzs truck was the truck
described in the REDDI report, it is unnecessary for us to decide
whether Trooper Christensen was justified in stopping Saltz for a
mud flap violation.
