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Michael S. Weil v. State of Alaska

February 18, 2011

MICHAEL S. WEIL,
APPELLANT,
v.
STATE OF ALASKA, APPELLEE.



Appeal from the District Court, Third Judicial District, Kenai, Sharon Illsley, Judge. Court of Appeals No. A-10586 Trial Court No. 3KN-08-1017 CR

The opinion of the court was delivered by: Bolger, Judge.

NOTICE

The text of this opinion can be corrected before the opinion is published in the Pacific Reporter. Readers are encouraged to bring typographical or other formal errors to the attention of the Clerk of the Appellate Courts.

303 K Street, Anchorage, Alaska 99501 Fax: (907) 264-0878

E-mail: corrections at appellate.courts.state.ak.us

OPINION

Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.

A state trooper contacted Michael S. Weil because it appeared that Weil was going to cross a road with his dog tethered to his four-wheeler. As a result of this contact, Weil was convicted of driving under the influence. Weil challenges the denial of his motion to suppress, arguing that the district court erred in upholding his stop as a community caretaker stop. We affirm Weil's conviction because we conclude that the trooper was justified in stopping Weil to avoid a potential threat to public safety.

Background

On June 14, 2008, at about 2:30 a.m., Alaska State Trooper Lawrence C. Erickson was driving down Kalifornsky Beach Road toward Soldotna when he noticed a four-wheeler coming down a gravel side street with a dog tied to it. The four-wheeler was driving down the right side of the street toward Kalifornsky Beach Road and the dog was walking down the middle of the street on a long lead. Sergeant Erickson made a U- turn and activated his overhead lights, intending to contact the driver to warn him not to drive his four-wheeler across the road. It was dark, there was traffic on the road, and Sergeant Erickson believed it would be unsafe for the dog and for any motorists who might be forced to take evasive action.

When Sergeant Erickson contacted the driver, Weil, he noticed that Weil was "obviously drunk and impaired." There was an open beer and two unopened beers on the rear rack of the four-wheeler next to the driver's seat. A subsequent breath test showed that Weil's blood alcohol content was .226 percent. Weil was charged with driving under the influence.*fn1

Before trial, Weil filed a motion to suppress the evidence, arguing that his stop was not supported by reasonable suspicion. At an evidentiary hearing on the motion, Sergeant Erickson testified that the only reason he stopped Weil was to warn him not to drive his four-wheeler across the road; Erickson said he did not believe it would be safe for Weil to "cross [the] highway with vehicles in the traffic flow with a dog tied to [his] four-wheeler." After hearing this testimony, District Court Judge Sharon Illsley denied the motion to suppress, concluding that the stop was a valid community caretaker stop. Weil filed a motion for reconsideration, which Judge Illsley denied. Weil then entered a Cooksey*fn2 plea to driving under the influence, preserving his right to challenge the denial of his motion to suppress.

Weil's stop was a valid community caretaker stop.

The parties do not challenge Judge Illsley's ruling that Weil was subjected to a Fourth Amendment seizure; the only claim on appeal is whether the court erred in ruling that Weil's seizure was a lawful community caretaker stop. In Ozhuwan v. State, we held that a Fourth Amendment seizure may be justified without reasonable suspicion of criminal activity if the police are validly acting within their community caretaker role -- that is, if the police are aware of specific circumstances supporting a reasonable belief that police assistance is required.* ...


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