LOVETT v. STATE

Court of Appeals No. A-11567, No. 6482.

JAMES M. LOVETT, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals of Alaska.


Attorney(s) appearing for the Case

Appearances: Barbara Dunham , Assistant Public Advocate, and Richard Allen , Public Advocate, Anchorage, for the Appellant.

Diane L. Wendlandt , Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards , Attorney General, Juneau, for the Appellee.

Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.


Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.

MEMORANDUM OPINION

Judge ALLARD.

James M. Lovett was a passenger in a vehicle that was stopped by a trooper because the driver was not wearing a seatbelt. The driver subsequently fled the vehicle. During the investigation into the driver's flight, the police searched Lovett and discovered drugs in his boot. Based on this evidence, Lovett was convicted of two counts of fourth-degree misconduct involving a controlled substance.

On appeal, Lovett argues that the drugs discovered in his boot were fruits of an unlawful seizure and search and the superior court therefore should have granted his pretrial motion to suppress. For the reasons explained here, we agree with Lovett that the prolonged seizure that led to the search was unlawful. We therefore reverse Lovett's convictions.

Facts and proceedings

On the morning of September 1, 2011, an Alaska state trooper stopped a truck near Big Lake because the driver was not wearing a seatbelt. The driver immediately fled the scene on foot, leaving James Lovett and another passenger in the truck. The trooper ran after the driver for a time, but was not able to catch him.

When the trooper returned to the scene of the stop, Lovett was standing outside the truck. The trooper ordered Lovett back in the truck and asked both passengers for identification. Lovett gave the trooper his passport and the other passenger provided her name and date of birth. The trooper then told them to "hang tight" and walked back to his patrol car with Lovett's passport.

When the trooper returned to the truck, he asked the two passengers for more information about the driver. Lovett and the other passenger told the trooper that the driver was Evan Lovett, Lovett's son, and that Evan had fled because he did not have a valid driver's license. Lovett and the other passenger also provided Evan's date of birth, town of residence, and phone number.

The trooper told Lovett and the other passenger that the truck would be impounded and that they needed to arrange for another ride. The trooper then returned to his patrol car, still holding on to Lovett's passport and again telling the passengers to "hang tight."

The trooper relayed the information he had received about Evan to police dispatch, and the dispatcher ran a records check through the Alaska Public Safety Information Network (APSIN) database. The records check confirmed that Evan's license was revoked. The trooper also gave the dispatcher the information he had received about the passengers, and the dispatcher also ran the passengers' contact information through APSIN. The search results indicated that James Lovett's driver's license had been revoked and also indicated that Lovett was "known to carry knives and pepper spray on his person."

Based on this information, the trooper asked Lovett to get out of the truck and to submit to a pat-down search for weapons. Lovett told the trooper that he had a pocketknife, which the trooper removed from his pocket. The trooper also felt a three-inch-long hard object in Lovett's boot. When the trooper attempted to search the boot, Lovett became uncooperative and he was then handcuffed. Lovett continued to be uncooperative. The trooper and two back-up officers then physically subdued Lovett down to the ground. The officers ultimately cut the boot off Lovett's leg and found a plastic baggie filled with what was later identified as methamphetamine and methadone.

Prior to trial, Lovett moved to suppress the evidence seized from his boot, arguing that it was the fruit of an illegal seizure and search. He also argued that the trooper had questioned him in violation of his Miranda rights. The superior court denied both motions following an evidentiary hearing. Lovett was later convicted in a bench trial on stipulated facts of two counts of fourth-degree misconduct involving a controlled substance.1

This appeal followed.

Was the pat-down search of Lovett unlawful?

A person is seized by law enforcement within the meaning of the Fourth Amendment if a reasonable person under the same circumstances would not feel free to leave.2 In this case, the parties do not dispute that Lovett was seized when the trooper ordered Lovett to get back in the truck and demanded his identification. The parties also do not dispute that the seizure continued through the criminal record check and the pat-down search that led to the discovery of the drugs in Lovett's boot.

Whether the scope of an investigative stop was proper is a mixed question of law and fact. We uphold the trial court's findings of fact unless they are clearly erroneous.3 Whether those facts justify the scope of a stop is a legal question which we review de novo.4 For an investigative stop to be lawful, the officer's action must be justified in its inception and the officer's conduct must be "reasonably related in scope to the circumstances that justified the stop in the first place."5 A seizure may not last longer than is necessary to effectuate the purpose of the stop.6

Here, Lovett does not dispute that the initial stop was lawful and that the trooper had probable cause to believe that the driver was committing a seatbelt violation. Lovett also does not dispute that what began as a routine traffic stop reasonably evolved into an investigation of a crime after the driver fled from the vehicle. This case therefore does not involve the question of whether, and under what circumstances, a passenger in a motor vehicle involved in a routine traffic stop may be seized by a police officer.7

Instead, this case presents the question of whether, and under what circumstances, a police officer may detain potential witnesses to a crime. The Fourth Amendment permits law enforcement to temporarily detain potential witnesses to a crime, even if those witnesses are not suspected of participating in the crime, but only when exigent circumstances are present.8

The State argues that exigent circumstances justified the seizure of Lovett in this case because the trooper was trying to assess what crimes had been committed and was trying to decide what to do with the abandoned vehicle.

Lovett contends that although exigent circumstances may have initially justified the detention of Lovett and the other passenger, there was no exigency to justify the continued detention of Lovett and the other passenger once they told the trooper the identity of the driver and the reason for his flight, and once they had provided the trooper with their own information and the means to contact them in the future. Lovett argues that, at that point, the reason for detaining the passengers had ended and the trooper should have returned Lovett's passport and informed Lovett and the other passenger that they were free to go. Thus, according to Lovett, the trooper exceeded the scope of any permissible detention when he retained Lovett's passport and began investigating Lovett's own criminal record.

We agree with Lovett. When the trooper contacted Lovett and the other passenger, he immediately obtained the information he asked for: the driver's name, date of birth, town of residence, and phone number. Lovett and the other passenger also provided the trooper with a reasonable explanation of why the driver ran — because he did not have a valid driver's license. Lovett and the other passenger also provided identifying information the trooper might need to contact them later. At that point, the trooper had no reason to believe that retaining Lovett's passport and running his name through APSIN would further his legitimate investigation of the driver.

The State asserts that the trooper was justified in continuing to detain the passengers while he ran their names through APSIN because of concern for his safety and the safety of the other officers. We recognize that traffic stops are inherently dangerous and that officer safety is of paramount importance. But Lovett was a passenger in a vehicle that had been pulled over for a seatbelt violation, and he stayed behind to talk to the trooper when the driver fled. The recording of the incident also demonstrates that Lovett was fully cooperative with the trooper up until the point that the trooper required him to submit to a search. There was no reason to apprehend a threat to officer safety.

In the alternative, the State argues that we should join those jurisdictions which have held that the police may request identification and run background checks on passengers in stopped vehicles as a matter of course, so long as doing so does not unnecessarily extend the duration of the stop.9 We have no reason to decide that issue in this case because the circumstances here show that the traffic stop had concluded and that there was no longer any reason to detain the passengers as witnesses to the driver's flight.

Moreover, even if we were to agree with the State's position, we would still conclude that the information the trooper obtained by running Lovett's information through APSIN — that Lovett was known to carry knives and pepper spray — did not, without more, justify searching him for weapons.

As we observed in Castle v. State, "[w]e can imagine circumstances in which a passenger's sudden movements might raise a reasonable fear of imminent assault, thus justifying an officer in frisking the passenger or in ordering the passenger to remain where the officer can observe and control [him]."10 Relying on Castle, we have since upheld the pat-down search of a passenger who kept reaching for his backpack and into his pockets, even after he was ordered to stop, because that conduct raised a legitimate concern that the passenger might be armed.11

We can likewise imagine circumstances in which an officer might obtain information about a passenger in APSIN that raised a reasonable fear of imminent assault. But those circumstances were not present in this case. It is not unusual to carry knives in Alaska. Nor is it unusual to carry bear or pepper spray. The State contends that, because the trooper obtained this information from APSIN, he could reasonably infer that Lovett's possession of knives and pepper spray "was related to the commission of a crime or was directed against law enforcement." We disagree that this inference was reasonable, absent specific evidence to support it — and there is no such evidence in the current record. That is, there is no evidence that the trooper was aware of anything more than the fact that Lovett was known to carry knives and pepper spray. We note that Alaska law requires a person to immediately disclose the presence of any deadly weapon, other than a pocketknife, upon contact with the police. Failure to do so is a crime.12 We think a person who discloses to the police that he has a knife — irrespective of whether the disclosure was required by law — should not invariably be subject to a pat-down search during any subsequent police contact. As the facts of this case demonstrate, the reason for the police contact might be as benign as being a passenger in a vehicle whose driver was stopped for a seatbelt violation.

The record shows that Lovett was cooperative until he was searched. He complied with the trooper's directive to get back in the truck, he gave the trooper his passport, and he answered the trooper's questions. The State points to no evidence that he made sudden or furtive movements, or that his actions were threatening in any other way. Even given the results of the APSIN search, the circumstances did not raise a reasonable fear of imminent assault justifying the pat-down search.

Because we conclude that the drugs found in Lovett's boot were the fruits of an unjustifiedly prolonged seizure and unlawful search, we conclude that the superior court erred in denying Lovett's motion to suppress.

Given our resolution of these issues, we do not need to reach Lovett's claim that he was questioned in violation of his Miranda rights.

Conclusion

We REVERSE Lovett's convictions.

FootNotes


* Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
1. Former AS 11.71.040(a)(3)(A) (2014).
2. Pooley v. State, 705 P.2d 1293, 1305 (Alaska App. 1985); see also Meyer v. State, 368 P.3d 613, 615 (Alaska App. 2016) (clarifying that whether a Fourth Amendment seizure took place under a given set of facts is a question of law that this Court reviews de novo).
3. Booth v. State, 251 P.3d 369, 373 (Alaska App. 2011).
4. Beauvois v. State, 837 P.2d 1118, 1120-21 (Alaska App. 1992).
5. Brown v. State, 182 P.3d 624, 625 (Alaska App. 2008).
6. Id.
7. We have previously declined to decide the question of whether passengers at the scene of a routine traffic stop may be detained solely because of their presence as passengers in the car. See Castle v. State, 999 P.2d 169, 173 (Alaska App. 2000).
8. City of Kodiak v. Samaniego, 83 P.3d 1077, 1084 (Alaska 2004); Beauvois, 837 P.2d at 1121; Metzger v. State, 797 P.2d 1219, 1221 (Alaska App. 1990).
9. See, e.g., United States v. Chaney, 584 F.3d 20, 26-27 (1st Cir. 2009); United States v. Soriano-Jarquin, 492 F.3d 495, 500-01 (4th Cir. 2007). But see State v. Rankin, 92 P.3d 202, 207 (Wash. 2004) ("[L]aw enforcement officers are not permitted to request identification from a passenger for investigatory purposes unless there is an independent basis to support the request."); State v. Johnson, 645 N.W.2d 505, 510-11 (Minn. App. 2002).
10. 999 P.2d 169, 174 (Alaska App. 2000).
11. Hicks v. State, 2012 WL 112616, at *2 (Alaska App. Jan. 11, 2012) (unpublished).
12. AS 11.61.220.

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