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.
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 Majaev's 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 Majaev's 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 driver's side door of Anton Majaev's 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 Majaev's truck, the truck stopped about thirty to fifty feet away from the trooper. Trooper Bordner realized that Majaev could see him in the driver's 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. The court of appeals affirmed the judgment of ...