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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Majaev v. State (1/22/2010) sp-6455
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
| ANTON MAJAEV, | ) |
| ) Supreme Court No. S- 13033 | |
| Petitioner, | ) |
| ) Court of Appeals No. A-9744 | |
| v. | ) District Court No. 3HO-04-00509 CR |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| ) | |
| Respondent. | ) No. 6455 January 22, 2010 |
| ) | |
Petition for Hearing from the Court of
Appeals of the State of Alaska, on Appeal
from the District Court, Third Judicial
District, Homer, Margaret L. Murphy, Judge.
Appearances: Charles E. Tulin, Anchorage, for
Petitioner. Terisia K. Chleborad, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, and Richard A.
Svobodny, Acting Attorney General, Juneau,
for Respondent.
Before: Carpeneti, Chief Justice, Fabe,
Winfree, and Christen, Justices. [Eastaugh,
Justice, not participating.]
FABE, Justice.
I. INTRODUCTION
After arriving at the site of a party where underage
drinking was suspected, Alaska State Trooper Travis Bordner
approached a vehicle driven by Anton Majaev. Majaev pulled away
to leave the scene but stopped when he saw the trooper walk into
the road to look at the license plate of Majaevs truck. Trooper
Bordner waved Majaev back, and Majaev complied with this
direction by backing up to speak with the officer. At that time,
Trooper Bordner found reason to conduct field sobriety tests,
which Majaev subsequently failed. Majaev was charged with
driving under the influence and moved to dismiss the case against
him on the grounds that he was illegally seized in violation of
both the United States Constitution and the Alaska Constitution.
The district court denied his motion, and the court of appeals
affirmed this denial on the basis that no seizure occurred. We
conclude that a reasonable person in Majaevs position would not
have felt free to leave the scene because doing so would have
violated the law and that, therefore, a seizure occurred.
Accordingly, we reverse the decision of the court of appeals that
no seizure occurred and remand for a determination by the
district court regarding whether Trooper Bordner had reasonable
suspicion to seize Majaev.
II. FACTS AND PROCEEDINGS
On the evening of October 10, 2004, Alaska State
Trooper Travis Bordner responded to a report that a property
owner planned to break up an underage party at a gravel pit in
Homer. Before Trooper Bordner reached his destination, he saw
the property owner returning from the gravel pit. The property
owner told Trooper Bordner that the young people who had gathered
there were in the process of leaving. While Trooper Bordner and
the property owner were talking, a couple drove up and reported
their belief that young people were drinking at a turnout about a
mile up the road.
Trooper Bordner was familiar with this particular
turnout and recalled that there had been underage parties in that
area in the past. He drove to the turnout and observed twenty to
thirty people in the area who appeared to be in their mid-teens
to mid-twenties. When the group of people saw the marked police
vehicle approaching, they scattered into the woods nearby.
Trooper Bordner, who was in uniform, parked his patrol vehicle
about ten feet away from the drivers side door of Anton Majaevs
truck.
Majaev drove away in a hurried manner when Trooper
Bordner walked toward him. When Trooper Bordner stepped into the
road to see the license plate on Majaevs truck, the truck stopped
about thirty to fifty feet away from the trooper. Trooper
Bordner realized that Majaev could see him in the drivers side
mirror, so the trooper wave[d] him back to talk to him. When
Majaev saw Trooper Bordner beckoning for him to come back, he
backed up and rolled down his window. At that time, Trooper
Bordner smelled alcohol and saw beer cans in the back of the
truck. Majaev failed the field sobriety tests administered to
him by Trooper Bordner and was transported to the Homer Police
Station, where he provided a breath sample that contained 0.120
alcohol content.
Majaev was charged with driving under the influence in
violation of AS 28.35.030(a). Majaev moved to suppress the
evidence gathered and dismiss the charge, arguing that he had
been subjected to an unlawful seizure. District Court Judge
Margaret L. Murphy denied the motion, reasoning that there was no
seizure because [a] mere wave of the arm is not a means of
physical force nor can it be considered a sufficient show of
authority to make the reasonable person believe that he is not
free to continue on his way. Majaev entered a no contest plea
and preserved his right to appeal the denial of his motion to
dismiss.1 The court of appeals affirmed the judgment of the
district court that no seizure had occurred, reasoning that a
reasonable person would not interpret Trooper Bordners actions as
an intent to restrain or confine.2
We granted Majaevs petition for hearing.
III. STANDARD OF REVIEW
Whether a seizure has occurred is a question of fact.3
Therefore we review whether an encounter between a law
enforcement officer and a citizen constituted a seizure under the
clearly erroneous standard.4 A finding is clearly erroneous if
this court is left with a definite and firm conviction that a
mistake has been made upon reviewing the entire record.5 While
we review the trial courts historical factual findings under the
clearly erroneous standard, we apply our independent judgment to
questions of law presented by constitutional issues.6 Under this
standard, we will adopt the rule of law most persuasive in light
of precedent, reason, and policy.7
IV. DISCUSSION
The Fourth Amendment of the United States Constitution
and article I, section 14 of the Alaska Constitution both
prohibit unreasonable searches and seizures.8 The critical issue
to be decided in this case is whether Trooper Bordners actions
constituted a seizure. If they did, the next question is whether
this seizure was unreasonable. Because the Alaska Constitution
provides broader protection than the United States Constitution
in the area of search and seizure, it is appropriate to apply
state constitutional protections in this case.9 Although we
carefully consider and find substantial guidance in cases
interpreting the United States Constitution,10 we are not bound by
those decisions when interpreting state constitutional law.11
To determine whether an encounter between a police
officer and a citizen was constitutionally permissible, we employ
the two-step analysis described in Waring v. State.12 First we
consider whether or not the encounter amounted to a seizure
triggering constitutional protections. If we determine that such
a seizure occurred, the next inquiry is whether the investigatory
stop falls within the reasonable suspicion exception to the
probable cause requirement.13
A seizure, which includes both full arrests and
investigatory stops,14 exists only when the officer, by means of
physical force or show of authority, has in some way restrained
the liberty of a citizen.15 Since there was no use of physical
force in this case, we focus on whether there was a show of
authority sufficient to convert this encounter into a seizure.
Our case law has defined show of authority as a circumstance
under which a reasonable person, in view of the objective facts
surrounding the incident, would believe that he is not free to
leave.16 Because we use this objective standard to determine
whether a law enforcement officers encounter with a citizen
constituted a seizure,17 Majaevs beliefs at the time of the
encounter are not dispositive.18
Majaev argues that a reasonable person in his situation
would not have felt free to leave because ignoring Trooper
Bordners hand signal would have subjected him to criminal
sanctions under AS 28.35.182, the relevant portion of which
provides:
A person commits the offense of failure to
stop at the direction of a peace officer in
the second degree if the person, while
driving or operating a vehicle or motor
vehicle or while operating an aircraft or
watercraft, knowingly fails to stop as soon
as practical and in a reasonably safe manner
under the circumstances when requested or
signaled to do so by a peace officer.[19]
The statute defines a signal to include a hand motion . . . used
in a manner that a reasonable person would understand to mean
that the peace officer intends that the person stop.20
The State argues that AS 28.35.182(b) is irrelevant
because Majaev had stopped his vehicle before Trooper Bordner
waved his hand and contends that the statute only applies to
motorists whose vehicles are literally in motion. We reject this
argument. First, the statute applies to individuals operating a
motor vehicle. In the past, we have interpreted statutory use of
the term operator to mean a person who drives or is in actual
physical control of a vehicle, regardless of whether the vehicle
is moving.21 Second, the literal application of the States
argument would lead to an absurd result in which Majaev, once
stopped, would be legally empowered to ignore Trooper Bordners
hand signal, but if Majaev moved his vehicle at all, the statute
would be triggered and he would be forced to stop again to comply
with the statute. We conclude that the statute, on its face,
applies to a person in Majaevs position.
Citing Castle v. State, the State also argues that
Majaev would not have been subject to criminal liability under
the statute even if he had ignored the gesture and driven away
because a person cannot be charged with avoiding police detention
if the police did not have a legitimate basis to detain the
person in the first place.22 But the State does not concede that
Trooper Bordner lacked reasonable suspicion in the first place.
Instead, it argues that if reasonable suspicion had been lacking,
Majaev could not have been prosecuted under AS 28.35.182.
The States argument focuses on the wrong question. The
relevant inquiry is not whether Majaev would actually have faced
criminal prosecution or punishment under AS 28.35.182, but rather
whether a reasonable person in Majaevs position would have
believed that he was required to respond to the troopers gesture
in order to comply with the law. A reasonable person in Majaevs
position would assume that he was not free to leave because
ignoring Trooper Bordners signal would be a violation of
AS 28.35.182(b) and therefore could have subjected such a person
to criminal sanction. Statutes like AS 28.35.182 are intended to
influence behavior; thus this coercive effect must be considered
within our analysis of whether Majaev was seized under the Waring
test.23
The district court correctly determined that Majaev
apparently felt free to leave when Trooper Bordner first parked
his vehicle and in fact did leave. But the critical moment for
the purpose of our analysis occurred when Trooper Bordner
signaled to Majaev to return, which triggered the statutory
prohibition against ignoring a peace officer. At that moment,
Majaev stopped and complied with Trooper Bordners hand signal, in
a manner consistent with his perceived duty under AS 28.35.182.
The show of authority in this situation emanated from
AS 28.35.182 and its effect on a reasonable persons evaluation of
whether he is free to leave.24 The existence and applicability of
the statute distinguishes this case from holdings in other
jurisdictions that a police officers gesture alone does not
constitute a seizure.25 Because of the statute, Trooper Bordners
gesture was a sufficient show of authority to make a reasonable
person in Majaevs position believe that he was no longer free to
leave.
Because the district court and the court of appeals
both determined that a seizure had not occurred, neither
addressed the second step of the analysis: whether Trooper
Bordner had reasonable suspicion to seize Majaev.26 Having now
concluded that a seizure did in fact occur, we remand the matter
so that the district court may consider this question and make
appropriate factual findings.
V. CONCLUSION
For the foregoing reasons, we REVERSE and REMAND for a
determination by the district court regarding whether Trooper
Bordner had reasonable suspicion to seize Anton Majaev.
_______________________________
1 See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska
1974).
2 Majaev v. State, Mem. Op. & J. No. 5307, 2008 WL
509074, at *1 (Alaska App., February 27, 2008).
3 Waring v. State, 670 P.2d 357, 365 n.15 (Alaska 1983).
4 See id.; State v. Bianchi, 761 P.2d 127, 129 (Alaska
App. 1988) (When a trial court is asked to suppress . . . , it
must review the record and make factual findings. In such a
case, the trial courts factual findings will be upheld unless
clearly erroneous. ).
5 Cusack v. Cusack, 202 P.3d 1156, 1159 (Alaska 2009)
(quoting Millette v. Millette, 177 P.3d 258, 261 (Alaska 2008)).
6 Keane v. Local Boundary Commn, 893 P.2d 1239, 1241
(Alaska 1995); Arco Alaska, Inc. v. State, 824 P.2d 708, 710
(Alaska 1992).
7 Lazy Mountain Land Club v. Matanuska-Susitna Borough
Bd. of Adjustment & Appeals, 904 P.2d 373, 382 n.50 (Alaska 1995)
(quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).
8 The federal search and seizure clause provides: The
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated . . . . U.S. Const. amend. IV. Similarly,
the state counterpart provides: The right of the people to be
secure in their persons, houses and other property, papers, and
effects, against unreasonable searches and seizures, shall not be
violated. Alaska Const. art. 1, 14.
9 See Anchorage Police Dept Employees Assn v.
Municipality of Anchorage, 24 P.3d 547, 550 (Alaska 2001)
(Alaskas search and seizure clause is stronger than the federal
protection because article I, section 14 is textually broader
than the Fourth Amendment . . . .); Ellison v. State, 383 P.2d
716, 717-18 (Alaska 1963).
10 Anchorage Police Dept Employees Assn, 24 P.3d 547, 550
(Alaska 2001).
11 State v. Jones, 706 P.2d 317, 321 (Alaska 1985).
12 670 P.2d 357, 363 (Alaska 1983).
13 Id.; see also Terry v. Ohio, 392 U.S. 1, 27 (1968)
(creating a limited exception to the search and seizure rule to
permit reasonable searches for weapons when there is a
substantial interest in ensuring the safety of the police officer
and others); Coleman v. State, 553 P.2d 40, 46 (Alaska 1976)
(holding that investigatory stops are constitutionally
permissible in circumstances where a police officer has a
reasonable suspicion that imminent public danger exists or
serious harm to persons or property has recently occurred . . .
.).
14 Romo v. Municipality of Anchorage, 697 P.2d 1065, 1067-
68 (Alaska App. 1985) (describing three categories of encounters
between police and citizens: (1) a generalized request for
information, (2) an investigatory stop supported by articulable
suspicion, and (3) a full arrest).
15 Id. at 1068 (internal quotation marks omitted) (quoting
Waring, 670 P.2d at 363).
16 Id. (citing Waring, 670 P.2d at 364).
17 Waring, 670 P.2d at 364; Abdou v. State, Mem. Op. & J.
No. 2850, 1994 WL 16196151, at *3 (Alaska App., January 19,
1994).
18 For the purposes of this analysis, we assume that a
reasonable person is also a person who is innocent of any crime.
Romo, 697 P.2d at 1068 ([T]he reasonable person whose perceptions
are under consideration is one who is innocent of any crime. A
person who considers himself guilty of some offense probably
labors under a number of psychological disadvantages and would
tend to treat any action, however harmless or innocuous, by a
police officer as threatening.).
19 AS 28.35.182(b) (emphasis added).
20 AS 28.35.182(d)(2).
21 Jacobson v. State, 551 P.2d 935, 937 (Alaska 1976).
22 999 P.2d 169, 176-77 (Alaska App. 2000).
23 Waring v. State, 670 P.2d 357, 363 (Alaska 1983).
24 We recognize that a balance must be struck between
allowing the police to solicit assistance and cooperation from
citizens and providing protection against unreasonable seizures.
Normally, a confrontation analyzed under the Waring free-to-leave
test is considered a seizure only if the officer added to those
inherent pressures by engaging in conduct which a reasonable man
would view as threatening or offensive even if coming from
another private citizen. Waring, 670 P.2d at 364 (quoting 3 W.
LaFave, Search and Seizure: A Treatise on the Fourth Amendment
9.2, at 53-54 (1978)); see also Gomez v. Turner, 672 F.2d 134,
142 (D.C. Cir. 1982) (recognizing that because reasons other than
a fear of official sanction motivate a reasonable person to stop
and cooperate with a police officer, a seizure will only occur
when there is some additional conduct by the officer to overcome
the presumption that a reasonable person is willing to cooperate
with a law enforcement officer). This test is not implicated in
this case because the very fact that Trooper Bordner is a police
officer triggered the statute, rather than his direct actions.
25 See, e.g., United States v. Laboy, 979 F.2d 795, 798-99
(10th Cir. 1992); State v. Nelson, 8 P.3d 670, 672 (Idaho App.
2000); State v. Hall, 115 P.3d 908, 917 (Or. 2005).
26 Majaev v. State, Mem. Op. & J. No. 5307, 2008 WL
509074, at *5 (Alaska App., February 27, 2008).
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