Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


Tuttle v. State (1/18/2008) ap-2144

Tuttle v. State (1/18/2008) ap-2144

                             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

DESMOND A. TUTTLE, )
) Court of Appeals No. A-9615
Appellant, ) Trial Court No. 3KN-04-2544 CR
)
v. )
)
STATE OF ALASKA, ) O P I N I O N
)
Appellee. ) [No. 2144 - January 18, 2008]
)
Appeal    from     the
          Superior   Court,  Third  Judicial  District,
          Kenai, Charles T. Huguelet, Judge.

          Appearances:  David  D.  Reineke,   Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the   Appellant.
          Tamara  de Lucia, Assistant Attorney General,
          Office  of Special Prosecutions and  Appeals,
          Anchorage,  and  Talis J.  Colberg,  Attorney
          General, Juneau, for the Appellee.
          
          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          COATS,  Chief Judge.
          MANNHEIMER, Judge, concurring.
          Desmond  A.  Tuttle entered a plea  of  no  contest  to
attempted  misconduct  involving a controlled  substance  in  the
third  degree, a class C felony.1   In entering his plea,  Tuttle
reserved  his  right  to  raise an issue  on  appeal:   that  the
evidence  against him stemmed from an illegal arrest.   We  agree
with Tuttle and reverse his conviction.

          Factual and procedural background
          At the evidentiary hearing, Brett D. May testified that
he  worked  for  the Riverside House, a hotel in Soldotna.    May
testified  that on October 27, 2004, he observed Tuttle urinating
in the hallway and fidgeting with some doors.   May said he asked
Tuttle what he was doing, but Tuttle ignored him.  May called the
police.
          Soldotna  Police Officer Jezel Stoneking was dispatched
to  the  Riverside  House  at approximately  2:30  a.m.   Officer
Stoneking  testified that dispatch informed  her  that  the  desk
clerk had observed an individual who urinated either in the lobby
or the hallway.  Officer Stoneking started her audio recorder and
then  walked  into the hotel lobby.  The desk clerk pointed  down
the hallway towards a person who matched the description provided
by  dispatch. Other than the clerk and this other individual,  no
one else was around.
          Officer Stoneking made contact with Tuttle in front  of
Room  104.  This room was in fact Tuttles room, which he had paid
for  in  advance.  Officer Stoneking observed that Tuttles  pants
appeared  damp  and  that he seemed intoxicated.  At  this  time,
Officer  Stoneking did not know that Tuttle was a  guest  at  the
hotel.   However, Tuttle was attempting to open the door to  Room
104  with  what Officer Stoneking thought looked like a car  key.
Officer Stoneking admitted that Tuttle told her that Room 104 was
his room.
          Due   to  Tuttles  demeanor,  which  Officer  Stoneking
described  as  disoriented  and almost  hostile,  she   requested
backup.   Officer  Duane Kant arrived to  assist  within   a  few
minutes.   Officer  Stoneking testified that Tuttle  was  getting
loud  enough  to  where  at some point other  hotel  guests  were
disturbed.    She thought that one guest looked out of  a  nearby
room  but  closed the door after seeing two police officers  with
Tuttle.   Officer  Stoneking testified that she  told  Tuttle  to
settle down.
          Eventually the officers got Tuttles name from  him  and
reported it to dispatch.  Dispatch informed them that Tuttle  had
previously  possessed a bullet proof vest, a knife,  and  a  gun.
Officer  Stoneking testified that based on Tuttles  behavior  and
the  dispatch report, she removed her pepper spray and  concealed
it  in  her right hand.  She testified that Tuttle could see  she
had  something in her hand.  Both officers testified that  during
the encounter Tuttle was subject to wide mood swings ranging from
passive to aggressive, raising and lowering his voice.  Based  on
Tuttles  demeanor and raised voice, the officers arrested  Tuttle
for disorderly conduct.
           Tuttle testified that when the officers showed up,  he
told  them who he was and that he was okay.  Tuttle denied  going
to  different doors before he got to his door. Tuttle also denied
ever  being addressed by the hotel clerk.   Tuttle testified that
the officers denied him access to his hotel room and that Officer
Stoneking was loud at times and combative.  Further, he testified
that only after he was handcuffed did he get loud because he  was
trying to figure out what was happening.
          Officer  Stoneking transported Tuttle to  the  Wildwood
Pretrial Facility.  Upon departing the facility, she checked  the
back  of her patrol car.  Officer Stoneking found a clear plastic
bag  containing approximately thirteen grams of white  powder  on
the  rear floorboard of the patrol car.  A subsequent field  test
of  this  substance  indicated that the  substance  was  cocaine.
Officer  Stoneking had checked the patrol car prior to the  start
of her shift.  She had not had anyone else in the rear of the car
that night before Tuttle.
          Officer Stoneking returned to the hotel and guarded the
door to Room 104 while Officer Kant secured a search warrant.   A
warrant was issued and the search resulted in the seizure of  two
plastic bags containing cocaine with a combined weight of sixteen
and  one-half grams, a small electronic scale, aluminum  foil  in
pieces for packaging, and a loaded handgun.
          The  State  indicted Tuttle on one count of  misconduct
involving a controlled substance in the third degree, a  class  B
felony,2  and  two counts of misconduct involving   a  controlled
substance in the fourth degree, a class C felony.3   (The charges
were later amended to one count of attempted misconduct involving
a  controlled  substance  in  the third  degree,  two  counts  of
misconduct involving a controlled substance in the fourth degree,
and  one  count  of disorderly conduct.)  Tuttle filed  a  motion
seeking to  suppress the evidence against him on the ground  that
the  officers lacked probable cause to arrest him for  disorderly
conduct.
          Superior  Court Judge Charles T. Huguelet conducted  an
evidentiary hearing. We have previously set out a summary of  the
testimony  at  the evidentiary hearing.  In addition,  the  State
presented the audio recording that Officer Stoneking made  during
the  incident.   At  the  conclusion of the evidentiary  hearing,
Judge  Huguelet found that, during the interview with the police,
Tuttle was going back and forth between being out of it and being
hostile.  He started shouting, they werent able to calm him down,
and  they  took him into custody.  Judge Huguelet found that  the
police  had  probable  cause  to  arrest  Tuttle  for  disorderly
conduct.   He  accordingly denied Tuttles motion to suppress  the
evidence obtained by the police.
          Why  we conclude that the police did not have
          probable   cause   to   arrest   Tuttle   for
          disorderly conduct

          Tuttle was arrested for disorderly conduct pursuant  to
AS 11.61.110(a)(2):
          A  person  commits  the crime  of  disorderly
          conduct  if  ... in a public place  or  in  a
          private place of another without consent, and
          with  intent to disturb the peace and privacy
          of  another  or with reckless disregard  that
          the conduct is having that effect after being
          informed  that it is having that effect,  the
          person makes unreasonably loud noise[.][4]

The State charged Tuttle with recklessly disturbing the peace and
privacy of others.   Tuttle argues that this statute requires the
police to warn a person that his conduct is having the effect  of
disturbing the peace and privacy of another.
          The  State has provided this court with copies  of  the
audio  recording  that Officer Stoneking made  of  the  incident.
Officer  Stoneking testified that the recording was  an  accurate
representation  of the incident.  (She did state that  her  voice
would seem louder because the microphone was clipped to her shirt
pocket,  relatively close to her mouth.)  Judge  Huguelet  stated
that  because  the incident was recorded we know  what  happened.
The  State concedes that the facts that the trial court found are
based  upon  the audio recording.  The State argues that,  during
the  incident, the police told Tuttle to settle down,  not  raise
his  voice, and not yell.  The State also relies on the following
exchange  in  arguing that the police told  Tuttle  that  he  was
creating a disturbance by making unreasonably loud noise:
          Tuttle:              What are you doing  here
                         bothering me?
          Officer Kant:  We got called.
          Tuttle:             Okay.
          Officer Kant:  Creating a disturbance.
          Tuttle:             Okay.  Okay.  I am?
          Officer:            Uh-huh (affirmative).

          Alaska  Statute 11.61.110(a)(2), the subsection of  the
disorderly  conduct  statute  under  which  Tuttle  was  charged,
appears  to be designed to criminalize disturbing the  peace  and
privacy  of  other  people  by making  unreasonably  loud  noise.
Under  the  statute, if someone is recklessly making unreasonably
loud  noise and then is specifically informed that the  noise  is
disturbing  the  peace and privacy of other  people,  the  person
commits  the  crime of disorderly conduct if he then persists  in
making unreasonably loud noise.  The statute appears to require a
specific warning.  This warning narrows the conduct to which  the
statute  applies and makes the statute less subject to claims  of
vagueness and arbitrary enforcement.
          First,  there is no indication that Tuttle  was  making
unreasonably loud noise before the officers approached him.   May
testified  that  he was the person who called  the  police  about
          Tuttle.  May testified that he saw Tuttle urinating in the
hallway. He saw Tuttle with a key in his hand trying to open some
doors, apparently because Tuttle did not know which room was his.
When he asked Tuttle what he was doing, Tuttle ignored him.   May
then called the police.
          We   have  carefully  reviewed  the  recording  of  the
incident.   Shortly after the police arrived,  Tuttle  asked  the
police  why  they were bothering him.  In response, Officer  Kant
told  Tuttle  that  the  police were called  because  Tuttle  was
creating a disturbance.  But this exchange did not inform  Tuttle
that  he  was making unreasonably loud noise that was  disturbing
others.   In  fact, the act that prompted May to call the  police
had nothing to do with Tuttle making unreasonably loud noise.
          It  is  true that Officer Stoneking told Tuttle not  to
raise  his voice and later told him again not to raise his voice.
She  also  told  him  dont yell. Apparently Tuttle  reacted  when
Officer Stoneking took out her pepper spray.  But there is simply
no   evidence  that  the  police  informed  Tuttle  that  he  was
disturbing the peace and privacy of others by making unreasonably
loud  noise.   And  from our review of the  audio  recording,  it
simply  does not appear that Tuttle was making unreasonably  loud
noise.
          In  reviewing the superior courts denial of a motion to
suppress,  we  view  the  facts in the light  most  favorable  to
upholding  the trial courts ruling.5  We accept the  findings  of
the  trial court unless they are clearly erroneous; whether those
factual findings support the trial courts legal conclusions is  a
question of law that we decide de novo.6  From our review of  the
record, including the recording, we conclude that Judge Huguelets
finding that Tuttle was making unreasonably loud noise is clearly
erroneous.   Furthermore, there was no evidence  to  support  the
conclusion  that Tuttle made unreasonably loud noise after  being
informed that he was making such noise and that it was disturbing
the peace and the privacy of others.

          Conclusion
          Accordingly, we conclude that Judge Huguelet  erred  in
refusing  to  grant  Tuttles motion to  suppress.   We  therefore
REVERSE Tuttles conviction.
          Reversed and remanded.
MANNHEIMER, Judge, concurring.

          I  write separately to clarify the reasons why I  agree
that Tuttles arrest for disorderly conduct was unlawful.
          The  State argues, and Judge Huguelet found,  that  the
police had probable cause to believe that Tuttle had violated  AS
11.61.110(a)(2).  This portion of the disorderly conduct  statute
declares  that  it  is  a  crime  for  a  person  (1)  to  make[]
unreasonably loud noise (2) with reckless disregard for the  fact
that  this unreasonably loud noise is disturb[ing] the peace  and
privacy  of  at  least  one other person,  and  (3)  after  being
informed  that [the noise] is having [this] effect   i.e.,  after
being  informed that the noise is disturbing someone elses  peace
and privacy.
          Putting all three elements of this offense together, it
is apparent that a person does not violate this statute merely by
making  an  unreasonably loud noise that disturbs  other  peoples
peace  and privacy.  Rather, the statute requires proof that  the
person  persisted in making unreasonably loud noise  after  being
explicitly  warned  that the noise was disturbing  other  peoples
peace and privacy.
          In  Tuttles  case, the police were called  because  the
hotel clerk saw Tuttle urinating in the hallway and trying to get
into  one of the rooms.  (The hotel clerk either did not know  or
failed  to  mention  that Tuttle was a registered  guest  at  the
hotel.)
          The  audio  recording made by Officer  Stoneking  shows
that,  shortly after the police contacted Tuttle,  he  asked  the
officers,  What  are  you doing here, bothering  me?   The  other
officer  on  the  scene,  Officer Kant, replied,  We  got  called
[because you were] creating a disturbance.
          In  its  brief  to this Court, the State suggests  that
this  was the required warning to Tuttle  a warning that  he  was
making  an unreasonably loud noise that was disturbing the  peace
and  privacy  of  other people.  But this view of  the  facts  is
demonstrably false.           The police were not called  to  the
hotel  because Tuttle was making loud noises.  Rather, the  hotel
clerk  summoned  the police because Tuttle had  urinated  in  the
hallway  and  was fumbling at the door to a room.  Thus,  to  the
extent  that  Tuttle might be said to have created a  disturbance
before  the  police arrived, that disturbance had nothing  to  do
with noise.
          Moreover,  the  audio recording of the  police  contact
with  Tuttle shows that, at this point in the discussion,  Tuttle
had not yet raised his voice to any significant degree.  Both  he
and   the   officers   were   speaking   in   relatively   normal
conversational  tones.  No one in Tuttles  situation  would  have
interpreted  Officer  Kants  remark about  a  disturbance  as  an
accusation  that  Tuttle was currently making  unreasonably  loud
noise.
          The  State  also relies on the fact that Tuttle,  after
initially being fairly calm, raised his voice to the officers two
or  three times  prompting the officers to repeatedly advise  him
to  lower  his  voice  and calm down.  But  the  audio  recording
reveals  that the officers never informed Tuttle that  he  should
quiet  down  because  he was disturbing the other  hotel  guests.
Rather,  the audio recording shows that the officers were  trying
to de-escalate their encounter with Tuttle.
          Tuttle was obviously intoxicated, and his mood began to
swing  as  the police encounter progressed.  It appears that  the
officers were trying to keep Tuttles emotions in check,  so  that
their encounter with him did not turn violent.  But whatever  the
officers motivation for telling Tuttle to calm down, it is  clear
that  they  never  said anything to Tuttle to  suggest  that  his
raised  voice was disturbing the other guests, or that  this  was
the officers concern.
          At  the  conclusion of the evidentiary hearing in  this
case,  Judge  Huguelet  found  based  on  the  testimony  of  the
officers, and also based on his listening to the audio record  of
the  encounter   that Tuttle started shouting and [the  officers]
werent able to calm him down.  Based on this fact, Judge Huguelet
concluded  that  [t]here was ample probable cause  for  [Tuttles]
arrest.
          The  first  part of Judge Huguelets factual finding  is
confirmed  by the evidence; Tuttle did start shouting  after  the
officers  refused to leave him alone, and after Officer Stoneking
took  out  her  pepper spray, apparently making  preparations  to
subdue  Tuttle.   However,  the second part  of  Judge  Huguelets
finding  is  clearly erroneous.  The officers were able  to  calm
Tuttle  down.   Even  though  Tuttle  remained  upset  with   the
officers, when the officers asked him to turn around and  present
his hands for handcuffing, Tuttle did so without a struggle.
          But  even  if  the  facts had been  as  Judge  Huguelet
described,  there  would  still be no probable  cause  to  arrest
Tuttle for violating AS 11.61.110(a)(2).
          Tuttle  did  indeed raise his voice, and he even  began
shouting,  after the police officers refused to leave him  alone,
and  after  Officer Stoneking picked up her can of pepper  spray.
But  the  State  did  not  prove that Tuttles  raised  voice  was
unreasonable  under  the  circumstances.   Tuttle   had   already
explained himself to the officers (that is, he explained that  he
was  trying  to  get  into his own room at the  hotel),  but  the
officers  refused  to  leave him alone, and  instead  they  began
preparing to subdue him.
          It  is  true  that the officers had probable  cause  to
believe  that  Tuttle had earlier urinated in the hotel  hallway.
But this act does not appear to be a crime under state law.  Even
assuming that this act was a misdemeanor under a local ordinance,
the police had no authority to arrest Tuttle for that misdemeanor
because it did not occur in their presence.1
          Thus, the question appears to be whether a person  acts
unreasonably by raising their voice after police officers contact
the person, question the person, and then refuse to stop when the
person  asks  to be left alone.  The State presents no  authority
for the proposition that a raised voice under these circumstances
would constitute an unreasonably loud noise within the meaning of
the disorderly conduct statute.
          Moreover,  even if Tuttles raised voice had constituted
an  unreasonably  loud noise under the circumstances,  a  further
question remains:  was Tuttle ever apprised that his raised voice
          was disturbing the peace and privacy of others?  The answer, as
revealed  by  the  audio recording, is no.   To the  extent  that
Judge  Huguelet  might  have  found otherwise,  that  finding  is
clearly erroneous.
          For  these reasons, I agree with my colleagues that the
police  did  not  have  probable  cause  to  arrest  Tuttle   for
disorderly conduct.
_______________________________
     1 AS 11.71.030(a)(1) and AS 11.31.100.

     2 AS 11.71.030(a)(1).

     3 AS 11.71.040(a)(3)(A).

4 Emphasis added.

     5 Crawford v. State, 138 P.3d 254, 258 (Alaska 2006) (citing
State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001)).

     6 Id.

1  See  AS  12.25.030  035; see also Joseph v.  State,  145  P.3d
595, 600-01 (Alaska App. 2006).

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC