Rehearing Denied Feb. 9, 2009.
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.
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 Newsom's 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 jury's verdict.
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 Busey's 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 Bell's 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. Bell's 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 " didn't appear to be shopping" ; rather, he was just " walking around, pacing.... [He] wasn't pushing a cart, [and he] didn't 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 Bell's 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, " I'll bet my girlfriend called me in [for] drunk driving again, didn't 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 ...