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Michael S. Weil v. State of Alaska


February 18, 2011


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.


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


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.


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.*fn3 In reviewing the trial court decision to uphold the stop, we view the facts in the light most favorable to the trial court's ruling.*fn4

Weil argues that Judge Illsley clearly erred in finding that Sergeant Erickson's purpose in contacting him "had nothing to do with investigating a crime." He concedes that Erickson testified at the suppression hearing that his only reason for stopping Weil was to prevent him from driving his four-wheeler across the road with a dog tethered to it. But Weil argues that, notwithstanding this testimony, "the Defense submits that the true purpose of the stop was to investigate." To support this claim, Weil asserts that "[i]t was after midnight and the officer saw activity and wanted to check it out. That [was] the basis for the stop, unbridled suspicion." He argues that Erickson's testimony that the stop was motivated by safety concerns was not credible because his four-wheeler was forty feet from the main road.

The record supports Judge Illsley's decision on this point. Sergeant Erickson testified that the four-wheeler was about twenty feet from the road when he contacted Weil. And, as Judge Illsley found, Weil's own exhibits showed that his twenty-foot dog lead, fully extended from the location of the stop, came within several feet of the fog line on Kalifornsky Beach Road.

Judge Illsley could also reasonably reject Weil's claim that Sergeant Erickson stopped him to investigate a possible crime. Judge Illsley found that Erickson observed Weil driving his four-wheeler toward a busy major road after dark with a dog tethered to it, and that Erickson contacted Weil to avoid a situation that was potentially dangerous to the dog and the motoring public. The record fully supports Judge Illsley's findings.

Weil next argues that the stop was not a valid community caretaker stop because he never asked for police assistance and there was no indication he was in distress. In previous cases we have upheld community caretaker stops where there was no overt request for police assistance. *fn5 We acknowledge that in these previous cases there were facts suggesting that the motorists might need help even though they did not ask for it.*fn6 As Weil points out, there were no facts indicating that he was in distress when Erickson stopped him.

But we have also upheld community caretaker stops where the police acted to prevent a potential hazard.*fn7 For instance, in Russell v. Anchorage, we held that the police were justified in temporarily stopping a vehicle with a misted rear window to ensure that the defect was remedied; in reaching that conclusion, we emphasized that there was no evidence that the traffic stop was motivated by reasons other than warning the motorist of a potential traffic hazard.*fn8

Other jurisdictions have similarly ruled that the police are justified in briefly detaining a motorist to warn of a potential safety hazard, regardless of whether that hazard warrants a citation for a traffic infraction. *fn9 As the Maine Supreme Court explained: "If we were to insist upon suspicion of activity amounting to a criminal or civil infraction ... we would be overlooking the police officer's legitimate role as a public servant to assist those in distress and to maintain and foster public safety."*fn10

Weil urges this court to read the community caretaker doctrine more narrowly, lest it become "a means of avoiding the dictates of Coleman." Under Coleman v. State, the police may only conduct an investigatory stop if they have "reasonable suspicion that imminent public danger exists or [that] serious harm to persons or property has recently occurred."*fn11 The basic inquiry under Coleman is whether "a prompt investigation [was] required ... as a matter of practical necessity."*fn12

We have never conclusively decided whether the Coleman requirement of "imminent public danger" applies to a community caretaker stop.*fn13 We note that other jurisdictions have not taken a uniform approach to this issue; for instance, one court has held that, under appropriate circumstances, the police are justified in stopping a vehicle to warn the occupants that an item of property is endangered,*fn14 while another jurisdiction permits community caretaker stops only when there is "imminent danger to life or limb."*fn15

We have no reason in this case to resolve where Alaska stands on this continuum because the district court's factual findings establish that Sergeant Erickson had reasonable suspicion to believe Weil's conduct posed an imminent public danger. Judge Illsley found that Erickson observed Weil approaching Kalifornsky Beach Road on his four-wheeler with a dog tethered on a twenty-foot lead; it was dark out and there was traffic on the road. These circumstances gave Erickson reason to believe that motorists might be forced to take evasive action if Weil continued across the road. At the time Sergeant Erickson contacted Weil, neither the dog nor the four- wheeler had yet ventured onto the main road. But Erickson was not obliged to wait for an accident to happen to contact Weil;*fn16 the purpose of the stop was to avoid that possible outcome, and if Erickson had not immediately observed signs that Weil was intoxicated, the stop would have been brief and non-intrusive.*fn17 We conclude that the stop was lawful, even if the Coleman requirement that the police have reasonable suspicion of imminent public danger applies to a community caretaker stop in the circumstances of this case.


We AFFIRM the decision of the district court.

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