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Cofey v. State

Court of Appeals of Alaska

September 18, 2009

Joseph W. COFEY, Appellant,
v.
STATE of Alaska, Appellee.

Page 565

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.

OPINION

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 O'Malley was dispatched to the Cofey residence after the police department received a report of a fight or disorderly conduct. The dispatcher informed O'Malley that a car containing some of the people involved in the incident had departed the scene.

As O'Malley 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 O'Malley and then started to walk away. Cofey walked in front of O'Malley's patrol car and O'Malley pulled ahead so that Cofey was illuminated by the vehicle's headlights. Officer O'Malley then activated his overhead lights to let Cofey know that he wanted to talk to him.

O'Malley 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. O'Malley observed no commotion, yelling, or physical confrontation between the two men. Prior to O'Malley's contact, Cofey had done nothing to suggest that he was armed and dangerous.

After he activated his overhead lights, Officer O'Malley 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. O'Malley 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. O'Malley could see a hard object in one of Cofey's pockets, and concluded that he might be trying to find a weapon. Officer O'Malley then drew his weapon and ordered Cofey to take his hands out of his pockets.

Cofey was startled when he saw Officer O'Malley 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 O'Malley arrested Cofey, and discovered that the hard object in Cofey's pocket was actually two cell phones.

Page 566

Before trial, Cofey moved to suppress the cocaine evidence, arguing that Officer O'Malley stopped him illegally without reasonable suspicion. In his ruling denying Cofey's 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 ...


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