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Deweese v. State (9/4/2009) ap-2232

Deweese v. State (9/4/2009) ap-2232

                             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


RICHARD DEWEESE, )
) Court of Appeals No. A-10006
Appellant, ) Trial Court No. 4FA-06-2168 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. )
) No. 2232 September 4, 2009
Appeal    from    the
          Superior  Court,  Fourth Judicial  District,
          Fairbanks, Randy M. Olsen, Judge.

          Appearances:   Margi Mock, Assistant  Public
          Defender,   and   Quinlan  Steiner,   Public
          Defender,   Anchorage,  for  the  Appellant.
          Timothy   W.  Terrell,  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 Bolger, Judges.

          BOLGER, Judge.
          COATS, Chief Judge, concurring.

          Richard Deweese entered a plea of no contest to fourth-
degree  misconduct involving a controlled substance and  reserved
his  right  to  appeal the superior courts decision  denying  his
motion  to suppress the evidence against him.  This evidence  was
obtained  after  a  traffic  stop  where  Deweeses  vehicle   was
subjected to a canine sniff.  We conclude that the plea agreement
improperly  restricted  the evidence  that  we  may  consider  on
appeal.   We therefore dismiss the appeal and remand the case  to
the superior court for further proceedings.

     Background
          On   April  25,  2006,  Alaska  State  Trooper   Andrew
Ballesteros clocked Richard Deweese driving forty-seven miles per
hour  in  a  forty mile-per-hour zone while Deweese was traveling
westward  on  Bradway  Road in North Pole.  Accordingly,  Trooper
Ballesteros activated his emergency lights to conduct  a  traffic
stop.
          Deweese  initially  turned left onto  Dennis  Road  and
pulled  into the parking lot of a fire station.  But rather  than
coming to a complete stop, he continued to travel south on Dennis
Road  toward the Old Richardson Highway.  As Deweese  drove  from
the  parking lot back onto Dennis Road, Trooper Ballesteros could
see  Deweese taking both of his hands off the steering wheel  and
reaching  toward the vehicles center console.  While Deweese  was
reaching for the console, his vehicle swerved in and out  of  the
roadway  and  onto  the  shoulder of the road.   Deweese  finally
stopped  his  vehicle  near the railroad tracks  before  the  Old
Richardson intersection.
          After  Deweese  pulled over, Trooper Ballesteros  asked
Deweese  to step out of his vehicle and then performed a  patdown
search.  Deweese did not have his drivers license, but identified
himself as Richard Deweese.  Ballesteros recognized Deweeses name
from  anonymous  tips  alleging that Deweese  was  involved  with
methamphetamine  distribution.  When asked  about  the  delay  in
pulling  over  his  vehicle and his movements toward  the  center
console,  Deweese replied that he was looking for his wallet  and
drivers license.
          Deweese  also  denied  having any  weapons,  drugs,  or
paraphernalia in his vehicle.  Ballesteros asked what Deweese had
in  his  pockets, and Deweese responded that he had his keys  and
some  money.   Deweese consented to Ballesteross request  to  see
this  money,  which amounted to $1,030, comprised  of  four  $100
bills,  three $50 bills, and twenty-four $20 bills.  But  Deweese
refused to give his consent for Ballestero to search the vehicle;
Ballesteros thus called for another trooper with a police dog  to
perform a canine sniff of the vehicle.
          Approximately  fourteen  minutes  after   Deweese   was
initially  stopped, Trooper Aaron Mobley arrived  with  a  police
dog.   Trooper Mobley walked the dog around Deweeses vehicle  and
informed  Ballesteros that the dog had been alerted to  something
inside.  Ballesteros then decided to impound Deweeses vehicle and
apply for a warrant to search inside.
          When  Ballesteros  executed the  warrant,  he  found  a
black   magnetized   container  with   two   small   baggies   of
methamphetamine  in the center console.  Deweese  was  thereafter
indicted  for  one count of third-degree misconduct  involving  a
controlled substance.1
          Deweese filed a motion to suppress the evidence  seized
from  his  vehicle,  on the grounds that there  was  insufficient
cause  to support the canine sniff and that the warrant  was  the
illegal  fruit  of that search.  Superior Court  Judge  Randy  M.
Olsen  denied  Deweeses motion, finding that  Deweeses  delay  in
pulling  over  and his furtive motions toward the center  console
established reasonable cause to support the canine sniff. Deweese
then  entered into a Cooksey agreement with the State,  where  he
agreed to plead no contest to the reduced charge of fourth-degree
misconduct  involving a controlled substance2  and  reserved  his
right to appeal Judge Olsens denial of his motion to suppress.3
     Discussion
          We  require the issues reserved in a Cooksey plea to be
dispositive  to avoid the possibility that parties will  use  the
procedure  to  require us to consider hypothetical  and  abstract
questions.4   In  Dow v. State, we recently added  a  requirement
that a Cooksey plea agreement must be in writing and describe the
issue  reserved for appeal by specifically referring to the facts
of  the  defendants case and the legal theories that the  parties
are relying on.5
          The  parties  to  this  case did file  a  written  plea
agreement  with  the  court.   But two  provisions  in  the  plea
agreement  cause  us concern.  Specifically, Paragraph  6  states
that  the  facts set forth in the courts written opinion  on  the
defendants  motion  to suppress the evidence are  the  undisputed
facts  of  the  case.  And Paragraph 8 states  that  [t]he  legal
question  is  whether a delayed pull-over, together with  furtive
movements  with  both  hands into or under  the  center  console,
create a circumstance where an office[r] could reasonably surmise
that  the  defendant was engaged in criminal activity, such  that
the  officer  could detain the vehicle and subject it  to  a  dog
sniff.
          These  two  paragraphs appear to  be  directed  at  the
requirements we outlined in Dow.  But their language  also  seems
to  express  an  additional expectation:  That this  court,  when
deciding  the  legality of the investigative  stop  and  the  dog
sniff,  will  confine itself to the abbreviated  facts  expressly
relied on by Judge Olsen in his written decision.
          If  this was indeed the agreement of the parties   that
is,  if  Deweese  entered his plea on the  expectation  that  the
legality of the seizure and search would be adjudicated  on  less
than the full facts of his case  then Deweeses Cooksey plea would
be unlawful.
          As  we  explained  above,  one  of  the  primary  rules
governing  Cooksey pleas is that these pleas may not be  used  to
bring  hypothetical and abstract questions to an appellate court.
For this reason, we cannot allow the parties to fashion a Cooksey
plea that requires an appellate court to ignore relevant evidence
contained in the record.
          In  Deweeses  case, for instance, Judge Olsens  written
decision fails to mention or even discuss certain aspects of  the
police  testimony  that potentially supported  the  investigative
stop  and  dog sniff.  If Deweese had been convicted following  a
trial  and had then raised this issue on appeal, this court would
          have been authorized to consider all of the testimony presented
on  this  issue  not just the portions of the testimony expressly
mentioned by Judge Olsen in his decision.
          If  the  testimony at the evidentiary hearing  revealed
an undisputed factual basis for the seizure and search, then this
court  would be authorized to affirm the superior courts decision
on that basis  even if Judge Olsen did not consider this evidence
or  consider  it  important.6   Or in  the  alternative,  if  the
testimony  at  the hearing suggested an alternate or supplemental
basis  for the seizure and search of Deweeses vehicle,  we  could
remand  the case to the superior court for supplemental  findings
of fact.
          Because these avenues of decision would be open  to  us
if  this  had  been  a  normal  appeal  and  because  they  could
potentially  be  necessary  to  a fair  and  just  resolution  of
Deweeses case, we cannot allow the parties to close these avenues
and require us to decide the case on truncated facts.
          Accordingly,  we  hold that Deweeses  Cooksey  plea  is
invalid because he apparently entered his plea based on a promise
that this court would decide the case based on an abbreviated set
of  facts  and that we would ignore anything else in  the  record
supporting the superior courts decision.
          It  is  possible  that Deweese and the  State  did  not
intend to confine this court to the facts expressly mentioned  by
Judge  Olsen  in his decision.  The manner in which  the  parties
have  briefed  this appeal suggests that they  viewed  the  facts
mentioned in Judge Olsens decision as only the starting point for
their  analyses,  leaving the parties free  to  raise  additional
arguments  based  on the rest of the testimony presented  at  the
evidentiary  hearing.  But if this is how the parties  understood
their   Cooksey  agreement,  we  would  still  be  obligated   to
invalidate  Deweeses  plea  because  there  are  no  trial  court
findings to support such arguments.
          We   are  an  appellate  court:   We  cannot  make  new
findings  of  fact,  nor  can  we resolve  issues  of  weight  or
credibility in the testimony.  We can neither uphold nor  reverse
Judge  Olsens  decision by making supplemental findings  of  fact
based  on  disputed  or ambiguous testimony  at  the  evidentiary
hearing.   If the correctness of Judge Olsens decision  rests  on
unresolved  issues, then Deweeses case must be  remanded  to  the
superior court.
          For  example, the State argues that we should  consider
the fact that Deweese was carrying over $1,000, which included  a
large  number of $20 bills.  The trooper testified that  Deweeses
possession of this money supported the suspicion that Deweese was
dealing  illegal drugs.  Deweese, for his part, argues  that  the
troopers  discovery of this money was the result  of  an  illegal
detention  and  patdown  search, and  that  the  trooper  had  no
authority to count the money after he determined that Deweese was
not  armed.  The trial courts decision, however, does not address
the issue of whether the troopers request to count Deweeses money
constituted an illegal search, or whether Deweeses possession  of
this  money  supported the troopers decision to  detain  Deweeses
vehicle and call in the police dog.
          The  State  also  urges  us to consider  several  other
          evidentiary factors that were not recognized in the trial courts
opinion, including the anonymous phone calls stating that Deweese
was   dealing  methamphetamine,  Deweeses  failure   to   produce
identification, and his questionable explanations for his furtive
behavior.
          The  lack  of  findings  by the trial  judge  regarding
these  disputed issues may be determinative in this case.  If  we
do  not consider the money that Deweese had in his pocket or  the
other factors argued by the State, then Deweeses delay in pulling
over  and  his furtive gestures may suggest only that he  was  in
possession   of  some  undetermined  amount  of  illegal   drugs.
Possession of a small amount of illegal drugs for personal use is
not  an  activity involving imminent public danger sufficient  to
support a temporary detention.7
          On  the other hand, trafficking in illegal drugs is  an
activity  involving  imminent  public  danger  to  public  safety
sufficient  to  support a temporary detention.8  If  we  consider
Deweeses  furtive behavior, along with the money  and  the  other
factors  argued  by  the State, then the  trooper  may  have  had
reasonable  suspicion that Deweese was dealing in illegal  drugs.
This  suspicion could have justified the brief detention  of  his
vehicle for the canine sniff.

     Conclusion
          As  we  noted  above, our decision in Dow requires  the
parties  to  identify  the issues preserved  in  a  Cooksey  plea
agreement by reference to the specific facts of their  case.   We
do  not  want to discourage plea agreements or reasonable factual
stipulations that promote the expeditious decision of an  appeal.
But  we  cannot  allow parties to pursue Cooksey agreements  that
require  this  court to base its decisions on  truncated  records
that ignore relevant evidence presented to the lower court.
          We therefore DISMISS this appeal.
COATS, Chief Judge, concurring.

          According   to   the  language  of  the  parties   plea
agreement, this case appears to present a simple legal  question:
whether a delayed pull-over, together with furtive movements with
both   hands  into  or  under  the  center  console,   create   a
circumstance where an office[r] could reasonably surmise that the
defendant was engaged in criminal activity, such that the officer
could  detain the vehicle and subject it to a dog sniff.  But  if
we  restricted  ourselves to this statement of the  case  as  set
forth  in the plea agreement, it appears that Trooper Ballesteros
had  at  most reasonable suspicion that Deweese was in possession
of  a  controlled substance.  (Deweese argues that the dog  sniff
would have only detected the possible presence of drugs; it would
not   have   produced  evidence  of  other  criminal   activity.)
Generally, reasonable suspicion that a person is in possession of
a  small  amount  of  illegal drugs for personal  use  would  not
constitute  imminent  public danger justifying  an  investigative
stop.1   Therefore, Deweese would likely prevail  if  we  decided
this case based solely on the facts set out in the plea agreement
and Judge Olsens findings.
          But,  as the record in this case and the briefs of  the
parties  make clear, there were more facts to this case than  are
set  out in Judge Olsens findings and the parties plea agreement.
The  State  argues  that  in addition to  the  delayed  pullover,
together with furtive movements with both hands into or under the
center console, many other factors justified Trooper Ballesteross
actions.  The  State  argues  that  Deweese  engaged  in  furtive
movements ..., failed to produce identification, had over  $1,000
in  cash  (with  a substantial quantity of $20 bills),  and  gave
questionable  explanations about the delay in pulling  over,  his
furtive movements, his lack of identification, and the length  of
time he possessed the
car.   The  State argues that the totality of these circumstances
provided  Trooper  Ballesteros  with  reasonable  suspicion  that
Deweese  was  engaged in illegal drug activity.           In  his
brief, Deweese argues that his actions prior to the stop did  not
support  a  reasonable suspicion that he had recently engaged  in
any criminal activity.  He argues that his subsequent actions and
explanations  were  reasonable  and  did  not  create  reasonable
suspicion.   In  addition,  he argues  that  Trooper  Ballesteros
conducted  an  illegal search when he obtained  and  counted  the
money  from  Deweeses pocket.  He also points  out  that  in  his
findings,  Judge  Olsen  did  not give  any  weight  to  Deweeses
possession of the money.
          Therefore,   the  parties  plea  agreement   does   not
encompass  the  facts  of this case or the separate  legal  issue
Deweese raises on appeal.  And even if this case had come  to  us
after  a  trial as a normal appeal, we would need to  remand  the
case for further findings from the trial court.
_______________________________
     1 AS 11.71.030(a)(1).

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

     3  See  Cooksey  v.  State, 524 P.2d 1251,  1255-57  (Alaska
1974).

     4 Clark v. Anchorage, 2 P.3d 639, 642-43 (Alaska App. 2000);
Miles v. State, 825 P.2d 904, 905-06 (Alaska App. 1992).

     5 Dow v. State, 155 P.3d 352, 355 (Alaska App. 2007).

6  Cf.  Torrey  v.  Hamilton, 872 P.2d  186,  188  (Alaska  1994)
([T]his court may affirm the judgment on any appropriate grounds,
even  if  it  is a ground which was rejected by the trial  court.
(emphasis  added));  Demoski v. New, 737 P.2d  780,  786  (Alaska
1987)  (noting, An appellee may seek to defend a judgment on  any
basis established by the record, whether or not it was relied  on
by  the  trial  court  or even raised before  the  trial  court);
Millman  v.  State, 841 P.2d 190, 195 (Alaska App. 1992)  (same);
Russell  v.  Anchorage, 626 P.2d 586, 588 n.4 (Alaska App.  1981)
(In  affirming the trial courts ruling, we are not  bound  by  or
restricted  to the theory used by the trial court in arriving  at
its conclusion.).

     7 Joseph v. State, 145 P.3d 595, 599 (Alaska App. 2006).

     8  See  Pooley  v. State, 705 P.2d 1293, 1307  (Alaska  App.
1985).

     1 Joseph v. State, 145 P.3d 595, 599 (Alaska App. 2006).

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