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.


State v. Campbell (12/19/2008) ap-2199

State v. Campbell (12/19/2008) ap-2199

                             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


STATE OF ALASKA, )
) Court of Appeals No. A-9729
Appellant, ) Trial Court No. 3AN-05-4950 CR
)
v. )
) O P I N I O N
DAVID SCOTT CAMPBELL, )
)
Appellee. ) No. 2199 December 19, 2008
)
          Appeal  from the Superior Court,  Third  Judi
          cial  District, Anchorage, John  E.  Suddock,
          Judge.

          Appearances:    W.   H.   Hawley,   Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Talis  J. Colberg, Attorney General,  Juneau,
          for  the Appellant.  Donald (Roy) Roistacher,
          Kasmar  and Slone, P.C., Anchorage,  for  the
          Appellee.

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

          STEWART, Judge.
          COATS, Chief Judge, dissenting.

          A University of Alaska police officer stopped a vehicle
as  it  turned  off  Benson Boulevard into a stores  parking  lot
because the vehicle did not have its headlights illuminated.  The
officer  mistakenly believed that the vehicle  was  operating  in
violation of 13 AAC 04.010(a)(1), the regulation that requires  a
vehicle  to  have  headlights  illuminated  one-half  hour  after
sunset.   In fact, sunset had occurred less than fifteen  minutes
beforehand.
          The officer activated his patrol cars emergency lights.
Instead  of  stopping,  David Scott Campbell  drove  through  the
parking  lot, across Northern Lights Boulevard, finally  stopping
off  the road and leaving his vehicle.  The officer arrested  him
shortly thereafter.
          The State indicted Campbell for first-degree eluding  a
police  officer.1  The State also added four misdemeanor  charges
by information:  driving while under the influence,2 resisting or
interfering  with arrest,3 fifth-degree criminal  mischief,4  and
improper use of registration or title.5
          Campbell  moved  to  suppress,  arguing  that  he   was
illegally stopped.  Superior Court Judge John E. Suddock held  an
evidentiary  hearing  on  the motion and  suppressed  the  States
evidence.   We uphold the superior courts ruling for the  reasons
below.

          Background facts and proceedings
          University  of  Alaska Anchorage (UAA)  Police  Officer
Scott Chafin testified that he contacted a dispatcher on June  4,
2005,  at about 11:00 p.m. to find out what time sunset was.   He
recalled  that  the  dispatcher  informed  him  that  sunset  was
somewhere around 10:26 p.m.
          Officer  Chafin went to the University  Center  on  Old
Seward  Highway to perform a security check of the  UAA  premises
there.  He left the area around 11:20 p.m.  He then stopped a car
on  New  Seward Highway for not having its headlights on.   After
concluding the stop with a verbal warning, Chafin stopped another
car for not having its headlights illuminated.  Campbells vehicle
was  the  third that Chafin intended to stop for not  having  its
headlights illuminated.
          When  Officer  Chafin turned on his  emergency  lights,
Campbell  was turning from Benson Boulevard into the  Fred  Meyer
parking  lot.  Campbell did not stop but drove across the parking
lot  as  Officer  Chafin  followed  with  his  lights  and  siren
activated.  Campbell drove over the curb on the north side of the
parking  lot, across the four lanes of Northern Lights Boulevard,
and over the curb on the north side of Northern Lights Boulevard,
where  he  stopped.  When Chafin stopped his patrol car, Campbell
got out of his vehicle and ran to the fence.
          The   State  presented  no  evidence  on  why  dispatch
provided Officer Chafin with faulty sunset information.  Although
the  University  Police Department had a system to  record  radio
traffic, the system was apparently inoperative.
          Judge  Suddock found that the State failed to establish
that  the  misinformation about the time of sunset resulted  from
excusable  neglect.  Judge Suddock also found  no  evidence  that
Cambell had endangered anyone, put anyone at risk, or engaged  in
any  outrageous  conduct.   He granted the  motion  to  suppress,
primarily relying on Castle v. State.6
          The  State  moved  for  reconsideration  and  asked  to
present    additional    evidence.     Judge    Suddock    denied
reconsideration,  pointing out that the States motion  failed  to
discuss  his analysis of the evidence, which found that  Campbell
          had a brief failure to stop followed by a minor traffic offense
with no attendant risk to the public.
          The   State  then  filed  a  supplemental  motion   for
reconsideration,  again asking to reopen the evidentiary  hearing
to  present additional evidence.  Judge Suddock allowed the State
to recall Officer Chafin for additional testimony.
          At   the   conclusion  of  Officer  Chafins  additional
testimony,  Judge  Suddock found that  Campbells  driving  as  he
turned  into the parking lot from Benson Boulevard did not arouse
suspicion.  He found that Campbell accelerated up to thirty miles
per  hour in the lot and then slowed down before going across the
four  lanes  of  Northern Lights Boulevard and  stopping  on  the
sidewalk.   He  found that no other vehicle had to  take  evasive
action  and  that no third party was subjected  to  any  risk  by
Campbells  driving.   Judge  Suddock  ruled  that  Campbell   was
subjected  to  an illegal stop.  He further ruled that  Campbells
conduct, a direct response to the illegal stop, did not create  a
risk of danger to third persons even though Campbell violated the
law.  Accordingly, he suppressed the States evidence.
     
          Discussion
          The State first argues that Officer Chafins attempt  to
stop  Campbell was valid because the officer reasonably  believed
that  he observed a traffic violation and acted in good faith  in
stopping Campbell.  Essentially, the State argues that Chafin had
probable  cause  to believe that Campbell was  violating  13  AAC
04.010(a)(1)  because his headlights were off.7  The  State  also
attacks    several   of   Judge   Suddocks   factual    findings.
Whether  an officer has probable cause for a traffic  stop  is  a
mixed  question  of fact and law.8  We view the evidence  in  the
light most favorable to the trial courts ruling and overturn  the
courts  factual  findings  only if  we  are  convinced  that  the
findings  are clearly erroneous.9  We review de novo whether  the
historical  facts  found  by the trial court  establish  probable
cause.10
          For an officer to have probable cause, the officer must
have  reasonably trustworthy information sufficient to warrant  a
person of reasonable caution to believe that an offense has  been
or is being committed.11
          Officer  Chafins information on the time of sunset  was
wrong.  In the superior court, the State stipulated that on  June
4,  2005,  sunset  occurred  at approximately  11:25  p.m.  Judge
Suddock  found that the range of error between the actual  sunset
(11:25  p.m.) and the time of sunset Officer Chafin said dispatch
provided to him went beyond excusable neglect.
          We  interpret Judge Suddocks decision to mean  that  he
found  that Officer Chafins belief concerning the time of  sunset
was  unreasonable.   The  record amply  supports  Judge  Suddocks
finding.
          Officer  Chafin testified that he called his dispatcher
around  11:00 p.m. to ask when sunset was.  As we have explained,
the parties stipulated that sunset that day (June 4, 2005) was at
11:25  p.m.   In other words, the sun was above the  horizon  for
almost half an hour after Officer Chafin spoke to his dispatcher.
          According  to Officer Chafin, his dispatcher  told  him
          that the sun had already set  that sunset had occurred somewhere
around  10:26 p.m.  (In the States memorandum to the trial court,
the  State asserted that Chafin believed that sunset occurred  at
10:24 p.m. or 10:26 p.m.)  But Chafin himself testified that  the
evening  of  June  4th  was  a very nice  evening  and  that  the
streetlights had not yet been turned on when he made the  traffic
stop of Campbell some thirty minutes later.
          We  also  take judicial notice that, in the  spring  of
2005,  the last time that the sun set as early as 10:26 p.m.  was
on May 9th  almost four weeks before the stop in this case.12
          For  all  of  these reasons, the record supports  Judge
Suddocks  finding that, if Officer Chafin believed that  the  sun
had  set  more  than  thirty minutes  before  he  turned  on  his
emergency  lights  and  siren, Chafins belief  was  unreasonable.
Therefore,  Chafins  actions  in  directing  Campbell   to   stop
constituted an illegal seizure.
          We  next  turn to the issue of whether the exclusionary
rule  bars  evidence of Campbells violations  after  the  illegal
seizure.   In Castle, the defendant was a passenger in a  vehicle
stopped by the police who walked away from the scene of the  stop
after  the  officer  ordered  him  to  remain  and  wait  to   be
interviewed.13  The officer chased, caught, and subdued Castle.14
A search of Castles pockets yielded several baggies of cocaine.15
The  State  argued that even if the officer had no  justification
for  ordering  Castle  to stay at the scene  to  be  interviewed,
Castles  violation  of a municipal ordinance by  running  in  the
street  during  his  flight gave the officer  grounds  to  arrest
him.16
          We rejected the States argument and held as follows:
          When  a defendant commits a crime in response
          to  an  illegal search or seizure, the policy
          of  the  exclusionary rule  societys interest
          in  deterring police misconduct  must  govern
          any  decision  whether to admit  or  suppress
          evidence of the defendants crime.[17]
          Although  the  discussion of this principle  in  Castle
referred to the application of the exclusionary rule as enforcing
Fourth Amendment rights, in Joseph v. State,18 we recognized that
Castle  necessarily  rested  on state  law  grounds  because,  in
California  v. Hodari D.,19 the United States Supreme Court  held
that  the  Fourth  Amendment was not violated  in  the  situation
presented in Castle.20
          We  analyzed  three cases from other  jurisdictions  in
Castle:  State v. Alexander,21 People v. Felton,22 and People  v.
Cantor.23   In  each  of  those  cases,  the  court  applied  the
exclusionary  rule  to suppress evidence of  a  defendants  crime
occurring  after  the police unlawfully attempted  to  seize  the
defendant.24
          The  circumstances  in  Alexander  parallel  this  case
closely.   When Alexander  failed to stop at a roadblock designed
to  catch  intoxicated  drivers, an officer  gave  chase,  pulled
Alexander  over, and arrested him for driving under the influence
of  intoxicants.25   The  trial court  refused  to  suppress  the
evidence because Alexander failed to stop at the direction of the
police officer.26
          The  Vermont  Supreme Court recognized that  defendants
are  not  normally entitled to suppression of evidence that  they
assaulted   police   officers  or  engaged  in   life-threatening
behavior, such as an attempt to escape at high speed in  response
to  an  illegal  search or seizure.27   But the court  recognized
that if the defendants conduct in failing to stop was treated  as
a  distinct crime not subject to the exclusionary rule, the  goal
of  the exclusionary rule, controlling police misconduct, [would]
not be served.28  The Vermont court therefore held that Alexander
did  not  forfeit  his  right  to litigate  the  illegal  seizure
claim.29
          In  this  case,  Judge  Suddock considered  Castle  and
compared  the  facts  in Campbells case to  those  in  Alexander.
Judge Suddock found that Campbells actions were a direct response
to  the illegal stop.  The judge recognized that Campbell did not
immediately stop, but continued driving away from Officer  Chafin
for  up to eight seconds and for a distance of approximately  one
hundred  yards.   He  found that no other  vehicle  had  to  take
evasive action and that no third party was subjected to any  risk
by Campbells driving or failure to stop.
          Although  application of the exclusionary  rule  allows
Campbell  to  evade  responsibility  for  his  misconduct,  Judge
Suddock  could  reasonably  conclude that  societys  interest  in
prosecuting Campbell was outweighed by the interest of  deterring
police misconduct and maintaining judicial integrity that follows
from  application  of  the exclusionary rule.   We  uphold  Judge
Suddocks decision to suppress the evidence.

          Conclusion
          The judgment of the superior court is AFFIRMED.
COATS, Chief Judge, dissenting.

          University  of  Alaska Anchorage Police  Officer  Scott
Chafin  initiated  a traffic stop of the defendant,  David  Scott
Campbell,  for  violating  the  regulation  prohibiting   driving
without  headlights more than thirty minutes after sunset.1   But
when  Officer  Chafin  activated his  overhead  lights,  Campbell
turned  his  van  into the Fred Meyer parking  lot  and  sped  up
noticeably.  Chafin activated his siren.  He estimated  Campbells
speed  through the parking lot to be 40-45 miles per hour.  Judge
Suddock  concluded that it was equally conceivable that Campbells
speed was 30 miles per hour.
          According to Officer Chafin, he realized that  Campbell
was  going to jump his vehicle over the curb at the edge  of  the
parking  lot and flee west on Northern Lights Boulevard.   Chafin
concluded  that pursuing Campbell was too dangerous.  He  stopped
and  turned off his overhead lights and siren.  But after jumping
the  curb  onto Northern Lights Boulevard, Campbell drove  across
all  four lanes of traffic and up on the adjacent sidewalk.  Then
Campbell  jumped out of the van and attempted to climb  a  nearby
fence.   As  Campbell climbed, one of the boards broke free  from
the  fence  and  he  fell  to the ground.   Campbell  then  broke
additional  boards from the fence and ran into the back  yard  of
the  adjacent  home.   The  homeowner quickly  tackled  Campbell.
Officer Chafin then arrested Campbell.  Campbell told Chafin that
he was a commercial airline pilot and had been drinking.
          The  State indicted Campbell for failure to stop at the
direction  of  a peace officer in the first degree,2  a  class  C
felony.  The State also charged Campbell with several misdemeanor
offenses,  including  driving  while  under  the  influence   and
resisting arrest.
          Campbell  filed  a  motion to  suppress,  arguing  that
Officer  Chafin had attempted an illegal stop and  that  all  the
evidence  of  Campbells subsequent actions had to  be  suppressed
since  they  were  caused by Chafins illegal  action.   Following
evidentiary  hearings  at  which only Officer  Chafin  testified,
Judge  Suddock  granted Campbells motion to suppress.   He  found
that  Officer Chafins conduct in attempting to stop Campbell  for
the headlight violation was not justified.  He concluded that, in
fleeing,  Campbell had not endangered anyone to a greater  extent
than  he  had before the stop, and therefore all of the  evidence
against Campbell had to be suppressed.
          The  majority  upholds Judge Suddocks  ruling.   But  I
conclude  that  this  ruling  is  inconsistent  with  the   long-
established law of the Alaska Supreme Court.
          The   decision  in  this  case  is  governed  by  state
constitutional  law.   In California v. Hodari  D.,3  the  United
States  Supreme Court held that evidence that the police obtained
while a person was fleeing from unlawful police detention was not
subject  to the exclusionary rule.4  But in Joseph v. State,5  we
rejected Hodari D. as a matter of state constitutional law.6
          In  Miller  v. State,7 decided almost forty years  ago,
the Alaska Supreme Court concluded that a person who is subjected
to  a  peaceful unlawful arrest has no right to physically resist
that  arrest.8   The  rule at common law was that  a  person  was
          privileged to use reasonable force to prevent an unlawful
arrest.9   But  the  supreme court concluded that,  as  a  policy
matter,  the remedy for a person who was subjected to an  illegal
arrest  was  to sue the officer for false arrest rather  than  to
resist with force.10
          The court set out several reasons for its decision:
          The   legality  of  a  peaceful  arrest   may
          frequently  be  a close question.   It  is  a
          question  more properly determined by  courts
          than  by participants in what may be a highly
          emotional  situation.  Because officers  will
          normally  overcome resistance with  necessary
          force,  the  danger  of  escalating  violence
          between  the  officer  and  the  arrestee  is
          great.  What begins as an illegal misdemeanor
          arrest  may culminate in serious bodily  harm
          or death.[11]
          
The court went on to say:
          We  feel  that  the legality  of  a  peaceful
          arrest should be determined by courts of  law
          and  not  through a trial by  battle  in  the
          streets.  It is not too much to ask that  one
          believing himself unlawfully arrested  should
          submit to the officer and thereafter seek his
          legal  remedies in court.  Such a rule  helps
          to  relieve  the threat of physical  harm  to
          officers  who  in good faith  but  mistakenly
          perform  an  arrest, as well as  to  minimize
          harm  to innocent bystanders.  The old common
          law  rule has little utility to recommend  it
          under our conditions of life today.  We  hold
          that  a private citizen may not use force  to
          resist peaceful arrest by one he knows or has
          good reason to believe is an authorized peace
          officer performing his duties, regardless  of
          whether the arrest is illegal ... .[12]
          
          It  seems to me that the reasoning of Miller applies in
this  case.   First,  it is almost impossible  for  a  driver  to
determine  whether  an officer is making  an  illegal  stop.   An
officer  can legally stop a driver for numerous things, including
equipment  violations  such  as  a  burned-out  taillight  or  an
obscured license plate.  Therefore the supreme courts observation
in  Miller  that  a citizen will frequently not know  whether  an
arrest is legal or illegal is even more compelling in the case of
a  traffic  stop.  Furthermore, a person who is subjected  to  an
illegal  arrest faces a much greater intrusion into his  personal
liberty than does a person who is subjected to an illegal traffic
stop.   But  most  importantly, it seems to me that  the  act  of
fleeing  from  a  traffic stop is more dangerous  to  the  person
fleeing,  the officer, and innocent bystanders than  the  act  of
resisting  an  arrest.   A person fleeing  in  an  automobile  is
fleeing  in what can easily become a dangerous and deadly weapon.
It seems reasonable to assume that the person who is fleeing from
the  officer  will  be paying attention to the  pursuing  officer
          rather than to his driving.  Therefore, a person fleeing from the
police  almost invariably puts innocent members of the public  in
danger.   Once  Campbell started to flee, Officer  Chafin  almost
immediately  stopped  his pursuit in compliance  with  the  local
policy  in  this  jurisdiction and many others.  This  policy  is
based  upon the conclusion that pursuing suspects who are fleeing
from  the police is exceptionally dangerous.  Yet if the  suspect
commits  a sufficiently dangerous act in fleeing from the police,
the police can then make a lawful arrest.13
          You also have to question why someone would flee from a
traffic stop.  Is this something we really want to encourage?  In
the present case we have a good idea why Campbell fled.  He was a
commercial  airline  pilot and he had been  drinking,  apparently
enough  to  result  in  a  charge  of  driving  while  under  the
influence.   He  was concerned that being caught  by  the  police
would affect his commercial pilots license.
          Therefore,  it seems to me that the policy set  out  in
the  majority opinion tends to encourage suspects to flee and the
police  to pursue.  We are not talking about doing away with  the
exclusionary  rule.  Had Campbell stopped, all  of  the  evidence
against  him  would  have been suppressed.  All  of  the  charges
against   Campbell  arose  from  his  illegal,  and   potentially
dangerous,  act  of fleeing from the police.  As I  have  pointed
out,  the  evidence  that arose from his  attempt  to  elude  the
traffic stop would be admissible under federal law.  Why would we
want  to  interpret  the Alaska Constitution  to  encourage  this
behavior?   The  decision by the Alaska Supreme Court  in  Miller
points the way.  When a police officer initiates a traffic  stop,
the  sensible  thing for the citizen to do is to  pull  over  and
submit to the stop, rather than flee.  Why would we want to  send
any  other message?  I conclude that Campbells motion to suppress
should have been denied.
_______________________________
  1 AS 28.35.182(a).

  2 AS 28.35.030(a)(1).

  3 AS 11.56.700(a)(1).

  4 AS 11.46.486(a).

  5 AS 28.10.481.

  6  999  P.2d 169, 174-76 (Alaska App. 2000) (holding  that  the
exclusionary  rule barred the State from relying on  a  municipal
pedestrian control ordinance to justify a police officers  arrest
of  a witness who ran from the officer on the street in violation
of  the  ordinance after the police officer illegally seized  the
witness).

7 13 AAC 04.010(a)(1) provides:
     Every vehicle traveling on a highway or other vehicular
     way or area within the state must illuminate lights ...
     between  one half hour after sunset and one  half  hour
     before sunrise[.]
     
  8 Chandler v. State, 830 P.2d 789, 792 (Alaska App. 1992).

  9 State v. Wagar, 79 P.3d 644, 650 (Alaska 2003).

  10Id.

  11Schmid  v. State, 615 P.2d 565, 574 (Alaska 1980);  State  v.
Grier, 791 P.2d 627, 631 (Alaska App. 1990).

  12See  http://www.timeanddate.com (follow  The  World  Clock  -
Time  Zones hyperlink; then follow Anchorage hyperlink; the  Find
sunrise   and  sunset-times  for  other  dates  hyperlink);   see
http://stardate.org (select Stargazing column and follow  Sunrise
&  Sunset hyperlink; then follow Anchorage hyperlink; then select
Pacific Standard and Go to Step 3).
  13Castle, 999 P.2d at 170-71.

  14Id. at 174-75.

  15Id. at 177.

  16Id. at 170-71.

  17Id. at 171.

  18145 P.3d 595 (Alaska App. 2006).

  19499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991).

  20Joseph, 145 P.3d at 604.

  21595 A.2d 282 (Vt. 1991).

  22581 N.E.2d 1344 (N.Y. 1991).

  23324 N.E.2d 872 (N.Y. 1975).

  24Castle, 999 P.2d at 176-77.

  25Alexander, 595 A.2d at 283.

  26Id. at 284.

  27Id. at 285.

  28Id.

  29Id. at 283.

1 13 Alaska Administrative Code 04.010(a)(1).

  2 AS 28.35.182(a).

  3 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991).

  4 Id. at 629, 111 S. Ct. at 1552.

  5 145 P.3d 595 (Alaska App. 2006).

  6 Id. at 596.

  7 462 P.2d 421 (Alaska 1969).

  8 Id. at 426-27.

9   5   Am.  Jur.  2d  Arrest   89  (2008);  Jeffrey  F.   Ghent,
Annotation,  Modern  Status of Rules as to  Right  to  Forcefully
Resist Illegal Arrest, 44 A.L.R. 3d 1078,  2(a) (1972).

  10Miller, 462 P.2d at 426.

  11Id.

  12Id. at 427.

  133  Wayne  R. LaFave, et al., Criminal Procedure   9.4(f),  at
464-66 (3d ed. 2007).

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