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Collier v. Municipality of Anchorage (7/14/2006) ap-2054

Collier v. Municipality of Anchorage (7/14/2006) ap-2054

                             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@appellate.courts.state.ak.us


         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


STEPHEN C. COLLIER, )
) Court of Appeals No. A-9404
Appellant, ) Trial Court No. 3AN-05-10882 MO
)
v. )
) O P I N I O N
MUNICIPALITY OF ANCHORAGE, ) )
Appellee. ) No. 2054 July 14, 2006
)
          Appeal  from the District Court,  Third  Judi
          cial   District,  Anchorage,  Suzanne   Cole,
          Magistrate.

          Appearances:  Stephen  C.  Collier,  pro  se,
          Anchorage.     Rachel   Plumlee,    Assistant
          Municipal   Prosecutor,  and   Frederick   H.
          Boness,  Municipal Attorney,  Anchorage,  for
          the Appellee.

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

          STEWART, Judge.

          Stephen  C.  Collier was convicted  of  speeding.1   On
appeal, he contends that the officer improperly obtained evidence
against  him   his drivers license and proof of registration  and
insurance   after  he invoked his Fifth Amendment  right  to  the
          assistance of counsel.  He also argues that he was denied
necessary  discovery  at  trial.  And, finally,  he  argues  that
Alaska Criminal Rule 16(a) is unconstitutional.  We affirm.

          Facts and proceedings
          On  May 12, 2005, Anchorage Police Officer James Conley
stopped  Collier  on the Glenn Highway near the  South  Birchwood
exit  for  driving seventy-eight miles per hour in  a  sixty-five
mile-per-hour zone.  Officer Conley cited Collier under Anchorage
Municipal Code 09.26.030(C) for speeding.
          On June 1, 2005, Collier filed an eleven-page discovery
request,  seeking information on the creation of the courts,  the
chartering of Anchorage, the true name of the government accuser,
IRS  documents, and police operating procedures.    On  July  26,
2005, the court granted the motion in part, noting that the  city
is  responsible  for  providing discovery materials  to  Collier,
e.g., officers notes of traffic stop.
          At  the  trial  on  August 29, 2005,  the  Municipality
stated that it had provided Collier with the following discovery:
          copies  of  the  ticket, the  certificate  of
          calibration  for  the  radar  instrument  the
          officer used, Officer Conleys certificate  of
          training  for  laser speed detection,  and  a
          compact disk with the video recording of  the
          traffic stop ... .  The only thing left  that
          we   could  find  to  be  discovered  to  the
          defendant is the recording of ... the  police
          dispatch  calls.  Sent defendant  the  notice
          that that is available.
          
Collier   said   he  did  not  request  or  want   the   dispatch
communications.  The court then reviewed the remaining  discovery
requests  and  found that none of the other items  requested  are
either relevant, within the agency and control of the prosecutors
office, nor required as obligatory discovery under Rule 16.
          In  its  case in chief, the Municipality called Officer
Conley, who testified that on the morning of May 12, 2005, he was
parked  on  the Glenn Highway watching traffic.  He saw  a  white
General Communication, Inc. van traveling at what appeared to  be
eighty  miles  per hour.  His laser indicated that  the  van  was
actually going seventy-eight miles per hour.  He pulled  the  van
over for speeding.  Collier produced his drivers license and told
the  officer  that he thought he was going seventy to seventy-two
miles  per  hour.  Collier apparently then asked if he was  under
arrest  and demanded an attorney.        At trial, Collier argued
that  he  was denied discovery and that Officer Conley  illegally
asked  for  his  drivers license and proof  of  registration  and
insurance  after he had requested an attorney.   The  court  held
that  the  Municipality had provided all relevant  discovery  and
that  Collier  did  not have a right to counsel  because  he  was
neither  being  interrogated, nor was he in custody.   The  court
found  Collier  guilty of violating AMC 09.26.030.   This  appeal
followed.

          Discussion
          Colliers  claim  that  his right  to  counsel  and
          privilege against self-incrimination were violated
          during the traffic stop

          Collier   claims   that  the   traffic   stop   was   a
constitutional  seizure that entitled him  to  invoke  his  Fifth
Amendment right to assistance of counsel.  He asserts that, after
he  told  the  police he was invoking his right to  counsel,  the
police could not require him to produce his drivers license until
his counsel arrived on the scene.2
          We  find  no merit to this claim.  The right to counsel
under   the   Fifth   Amendment  only  arises  during   custodial
interrogation,  and Collier concedes he was not  in  custody  for
purposes of Miranda v. Arizona.3  We agree that Collier  was  not
in  Miranda  custody.   Routine traffic stops  generally  do  not
constitute Miranda custody and thus do not trigger the  right  to
counsel.4   Here, Officer Conley stopped Collier, asked  for  his
license  and proof of registration and insurance, and then  cited
him  for  speeding. There is no evidence that this  was  anything
other  than a routine traffic stop.  Because Collier was  not  in
custody,  Officer Conley did not violate Colliers Fifth Amendment
right to counsel when he asked for Colliers drivers license.5
          To  the  extent that Collier may be asserting that  his
Sixth  Amendment right to assistance of counsel was violated,  we
recognized in Thiel v. State6 that the Sixth Amendment  right  to
counsel attaches only upon the commencement of adversary criminal
proceedings, not during purely investigative stages of  a  case.7
When  Officer  Conley  stopped Collier  for  speeding,  adversary
criminal  proceedings  had not  commenced.  Accordingly,  Officer
Conley  did  not  violate Colliers Sixth Amendment  right  to  an
attorney.
          Finally,  Collier appears to claim that Officer  Conley
violated  his  privilege against self-incrimination by  demanding
his  drivers  license.  The Fifth Amendment of the United  States
Constitution  and article 1, section 9 of the Alaska Constitution
provide  that  no  person  shall be  compelled  in  any  criminal
proceeding to be a witness against himself.
          Alaska   law  requires  motorists  to  have  in   their
possession  a  valid drivers license and to present that  license
for  inspection upon demand by a peace officer.8  Collier  argues
that  requiring him to present his license violated his privilege
against  compulsory self-incrimination because it identified  him
for the purpose of prosecution.
          In  Byers  v.  California,9 the United  States  Supreme
Court  addressed the closely related issue of whether it violates
the  privilege against compulsory self-incrimination  to  require
motorists to produce identification at the scene of an accident.10
The  Court  noted  that [e]ven if we were to view  the  statutory
reporting requirement as incriminating in the traditional  sense,
          in our view it would be the extravagant extension of the
privilege  Justice  Holmes warned against  to  hold  that  it  is
testimonial in the Fifth Amendment sense.11  The disclosure of the
drivers  name  and  address  is an essentially  neutral  act  and
[w]hatever the collateral consequences ... the statutory  purpose
is  to  implement the state police power to regulate use of motor
vehicles.12  Moreover, [a] name, linked with a motor vehicle,  is
no  more  incriminating  than the tax  return,  linked  with  the
disclosure of income ... .  It identifies but does not by  itself
implicate anyone in criminal conduct.13
          We  have  also held that the Fifth Amendment  privilege
against  compulsory self-incrimination does  not  extend  to  the
requirement that motorists produce a drivers license  and thereby
identify  themselves  for  purposes  of  prosecution.14   Officer
Conley,  therefore,  did not violate Colliers  privilege  against
self-incrimination  when  he demanded that  Collier  produce  his
drivers license.

          Colliers request for additional discovery
          On June 1, 2005, Collier filed an eleven-page discovery
request,  seeking information on the creation of the courts,  the
chartering of Anchorage, the true name of the government accuser,
IRS documents, and police operating procedures.  The Municipality
provided Collier with a copy of the ticket, the certification  of
the laser used in this case, Officer Conleys training certificate
for  operating the laser, and the video recording of the  traffic
stop.   The prosecutor also offered to provide Collier  with  the
recording  of the radio traffic between the officer and dispatch,
but  Collier  said  he did not want the dispatch  communications.
Magistrate Cole found that none of the other items requested  are
either relevant, within the agency and control of the prosecutors
office, nor required as obligatory discovery under Rule 16.
          Collier  argues that all the information  he  requested
should  have  been disclosed because it would have had  a  direct
bearing  on  the  trial.  We overturn discovery orders  only  for
abuse of discretion.15
          Several  sections of Criminal Rule 16 are  relevant  to
this  appeal.  Criminal Rule 16(a) mandates that discovery  prior
to  trial  shall be as full and free as possible consistent  with
protection  of  persons,  effective  law  enforcement,  and   the
adversary   system.   Criminal  Rule  16(b)(1)(A)  requires   the
prosecuting  attorney  to  disclose  the  names,  addresses,  and
statements of persons known by the government to have   knowledge
of  relevant  facts, written or recorded statements made  by  the
accused or a co-defendant, documents or objects obtained from the
accused  or  intended to be used at trial, and records  of  prior
convictions  of  the defendant and any witnesses  the  prosecutor
intends to call.  Criminal Rule 16(b)(3) requires the prosecution
to  disclose  material or information within  its  possession  or
control  that tends to negate the guilt or reduce the  punishment
of  the accused.  Criminal Rule 16(b)(7) allows the court in  its
discretion  to require disclosure of other relevant material  and
          information.  And, finally, Criminal Rule 16(b)(8) states that
the  prosecution  is not required to disclose legal  research  or
attorney  work  product.   None of these  sections  requires  the
prosecution  to  disclose information  on  the  creation  of  the
courts,  the  chartering  of  Anchorage,  or  any  of  the  other
documents Collier requested.
          Magistrate  Cole   had discretion under  Criminal  Rule
16(b)(7)  to order the disclosure of other relevant material  and
information.   But  she correctly found that none  of  the  other
items  requested  are  either relevant,  within  the  agency  and
control  of  the prosecutors office, nor required  as  obligatory
discovery  under  Rule 16.  The only relevant information  within
the  Municipalitys control (the ticket, the laser  certification,
Officer Conleys training certificate for operating the laser, the
video   recording   of  the  traffic  stop,  and   the   dispatch
communications) was provided or made available to  Collier.   The
rest  was  either nonexistent, irrelevant, or publicly available.
None  had  a  tendency  to negate his guilt.16   Magistrate  Cole
therefore  did  not  abuse her discretion in  refusing  to  order
additional discovery.17

          Colliers    claim   that   Criminal    Rule    16    is
          unconstitutional
          In  passing, Collier argues that Criminal  Rule  16  is
unconstitutional.   His  entire  argument,  raised  only  in  his
conclusion, is as follows:
          [T]his  court should hold that Criminal  Rule
          16(a) is unconstitutional, as the withholding
          of  any  inculpatory or exculpatory  evidence
          material  from the Accused must be  disclosed
          and  under  no circumstance can  evidence  be
          withheld  to  protect persons (the  State  of
          Alaska),  protect effective  law  enforcement
          (Alaska  State  Troopers,  Anchorage   Police
          Department  and other Police Departments  and
          Police)  and  the  adversary system  (Judges,
          Attorneys,   Prosecutors  and   other   court
          personnel) or any other entity.
                              
Collier   appears  to  be  arguing  that  Criminal   Rule   16(a)
unconstitutionally limits discovery by providing  that  discovery
should be as full and free as possible consistent with protection
of  persons, effective law enforcement, and the adversary system.
But  he does not cite any legal authority for this position.   He
also  does  not  show  how he was prejudiced.   As  noted  above,
Collier received all relevant discovery.18

          Conclusion
          Colliers conviction is AFFIRMED.
_______________________________
     1 Anchorage Municipal Code (AMC) 09.26.030(C).

     2  Collier  also claims that his rights to counsel  and  his
privilege  against  self-incrimination  were  violated  when  the
officers  demanded his registration and proof of  insurance.   We
have not addressed this claim because we do not see how proof  of
registration  or  insurance  could be  used  against  Collier  as
evidence of speeding.

     3 See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602,
1612, 16 L. Ed. 2d 694 (1966); see also Berkemer v. McCarty,  468
U.S.  420,  439-43, 104 S. Ct. 3138, 3150-52, 82 L.  Ed.  2d  317
(1984);  Clark v. Anchorage, 112 P.3d 676, 678-79 &  n.4  (Alaska
App. 2005).

     4 Berkemer, 468 U.S. at 439-43, 104 S. Ct. at 3150-52; Blake
v. State, 763 P.2d 511, 515 (Alaska App. 1988).

     5 See id.

     6 762 P.2d 478 (Alaska App. 1988).

     7 Id. at 481 (citing Moran v. Burbine, 475 U.S. 412, 429-30,
106  S.  Ct.  1135, 1145-46, 89 L. Ed. 2d 410 (1986);   Maine  v.
Moulton, 474 U.S. 159, 170, 106 S. Ct. 477, 484, 88 L. Ed. 2d 481
(1985);   Kirby v. Illinois, 406 U.S. 682, 688, 92 S.  Ct.  1877,
1881, 32 L. Ed. 2d 411 (1972)).

     8 AS 28.15.011(b); AS 28.15.131.

     9 402 U.S. 424, 91 S. Ct. 1535, 29 L. Ed. 2d 9 (1971).

     10 Id. at 427, 91 S. Ct. at 1537.

     11 Id. at 431, 91 S. Ct. at 1539.

     12 Id. at 432, 91 S. Ct. at 1540.

     13 Id. at 433-34, 91 S. Ct. at 1540.

     14  Winterrowd v. State, ____ P.2d ____, Alaska App. Opinion
No. 2050 (June 23, 2006).

     15  See  R.E.  v. State, 878 P.2d 1341, 1345 (Alaska  1994);
Linne v. State, 674 P.2d 1345, 1354-55 (Alaska App. 1983).

     16 See Scott v. State, 519 P.2d 774, 778 (Alaska 1974).

     17 See R.E., 878 P.2d at 1345; Linne, 674 P.2d at 1354-55.

     18  See  Adamson v. Univ. of Alaska, 819 P.2d 886,  889  n.3
(Alaska 1991).

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