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Shay v. State (7/1/2011) ap-2316

Shay v. State (7/1/2011) ap-2316

                                               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 

DARREN SHAY,                                    ) 
                                                )          Court of Appeals No. A-10380 
                           Appellant,           )         Trial Court No. 3KN-07-2165 CR 
                                                ) 
             v.                                 ) 
                                                )                  O P I N I O N 
STATE OF ALASKA,                                ) 
                                                ) 
                           Appellee.            ) 
                                                )             No. 2316 - July 1, 2011 

                Appeal from the Superior Court, Third Judicial District, 
                Kenai, Carl Bauman, Judge. 

                Appearances:      Margi   Mock,   Assistant   Public   Defender,   and 
                Quinlan Steiner, Public Defender, Anchorage, for the Appellant. 
                Diane    L.  Wendlandt,   Assistant   Attorney   General,   Office     of 
                Special Prosecutions and Appeals, Anchorage, and Daniel S. 
                Sullivan, Attorney General, Juneau, for the Appellee. 

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

                BOLGER, Judge. 

                The police found Darren Shay hitchhiking about a mile from the site of a 

car crash following a high-speed chase.          Shay gave vague statements when questioned 

about his whereabouts at the time of the crash, and the police eventually arrested him and 

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gave him a Miranda warning.  The trial court denied Shay's motion   to suppress his pre- 

Miranda  statements to police.         We agree with the trial court that Shay was initially 

subjected   to   an   investigatory   stop   that   did   not   involve   custodial   interrogation,   and 

therefore his pre-arrest statements were admissible. 

        Background 

                Alaska State Trooper Levi Duell pulled a green sedan over around Mile 103 

of the Sterling Highway.   Duell began to approach the car on foot, but the car then sped 

off.  The trooper initially followed the car, but then discontinued the chase when he 

reached   an   unsafe   speed.   A   short   time   later,   the   trooper   observed   the   green   sedan 

abandoned in the ditch at Mile 107. 

                Duell and Soldotna Police Officer Jared Meyer searched the woods around 

the abandoned car, assuming that the driver had escaped on foot. After a fruitless search, 

Meyer headed north back toward Soldotna and came across Shay standing on the side 

of the road, about one mile north of where the green sedan went into the ditch.                 Meyer 

stopped to talk to Shay to see if he knew anything about the chase or the abandoned car. 

When talking to Shay, Meyer noticed that Shay was dirty and wet and looked like he had 

been outside for a while. 

                Meyer   contacted   Duell,   and   asked   the   dispatcher   to   run   Shay's   name 

through the computer.  The dispatcher told Meyer that Shay was on felony probation for 

driving under the influence.         Shay admitted that he was on probation and cooperated 

when Meyer asked him to provide a breath sample.               The portable breath test indicated 

that Shay had consumed alcohol. 

                Meyer asked Shay where he had come from, and Shay replied that he had 

been at a friend's house nearby.          The entire conversation, though not recorded, was 

                                                   2                                              2316
 

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apparently cordial.   Shay was never handcuffed or physically restrained in any way, and 

he was cooperative throughout. 

              About five minutes after Meyer first contacted Shay, Duell arrived on the 

scene. This portion of the investigation was recorded. Duell performed a brief pat-down 

for weapons, and Meyer asked Shay to take a seat on the bumper of his police vehicle. 

Duell then asked Shay where he was coming from, and Shay replied that he had been at 

his friend Mike Whitehousen's place nearby.  Shay did not know Whitehousen's phone 

number or the name of the road on which he lived.   Dispatch reported that the computer 

database revealed nobody by that name. 

              Shay then explained that he was out burning brush with Whitehousen.  He 

did not know the names of any of the other people who were burning brush.  He said that 

he left when they started drinking because of his probation conditions. 

              Shay asked what he had done to draw this kind of police attention, and 

Duell explained that they were looking for someone who fled from police following a 

car chase.  Shay responded that he didn't drive. 

              At this point, Duell put Shay in the back seat of his police vehicle.  After 

a brief discussion about the name of Shay's probation officer, Shay asked Duell if he was 

under arrest.   The trooper responded that he was not under arrest, but he was in custody, 

and then the trooper recited the Miranda warning.   Duell then asked Shay to direct him 

to the burn site in order to corroborate Shay's story.  But when they got to the location 

Shay described, there was no sign of a fire. 

              Further investigation revealed that the green sedan was owned by Shay's 

coworker and that another coworker had asked to borrow it the day before. Later, Shay's 

roommate contacted Duell and told him that she had been in the car and that Shay was 

driving the car when they fled from the police.  Shay was charged with failing to stop for 

                                             3                                        2316
 

----------------------- Page 4-----------------------

                   1 
a peace officer  and two counts of third-degree assault for recklessly placing Shay's 
roommate in fear of imminent physical injury and for causing her actual physical injury.2 

                 Shay filed a motion to suppress his statements to the police, arguing that the 

police subjected him to a custodial interrogation but did not advise him of his Miranda 
rights.3  Superior Court Judge Carl Bauman denied Shay's motion to suppress, ruling that 

the custodial interrogation did not begin until Shay was placed in the police vehicle. 

Shay was convicted after a jury trial, and he now appeals. 

        Discussion 

                 During a custodial interrogation, a suspect must be warned "that he has a 

right to remain silent, that any statement he does make may be used as evidence against 
him, and that he has a right to the presence of an attorney, either retained or appointed."4 

The defendant may then waive these rights and speak with the police.5                       If a suspect is 

subjected to custodial interrogation without first receiving these warnings, his statements 
may   not   be   used   against   him.6     We   examine   two   issues   to   determine   whether   an 

interrogation was custodial:          "(1) the circumstances surrounding the interrogation; and 

    1    AS 28.35.182(a)(1), (3).
 

    2    AS 11.41.220(a)(1)(A), (B).
 

    3    See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
 

    4    Id.
 

    5    Id.
 

    6    Id.
 

                                                      4                                                  2316
 

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(2) given the totality of those circumstances, whether a reasonable person would have 
felt he or she was not at liberty to terminate the interrogation and leave."7 

                 We accept the trial court's factual findings regarding the circumstances of 
the   interrogation   unless   they   are   clearly   erroneous.8    Using   the   trial   court's   factual 

findings, we independently decide the question of whether the suspect was in custody.9 

                 Shay argues that he could have reasonably assumed that Officer Meyer had 

placed him under arrest for a probation violation.             He argues that "[d]ispatch reported 

that Shay was on felony probation for DUI, and his probation was conditioned upon not 

drinking alcohol."       Shay did not make this argument in his motion to suppress, so the 

superior court did not make any findings on this issue. 

                 In the absence of lower court findings on disputed issues, we view the 
record in the light most favorable to the lower court's ruling.10            Here, the record does not 

support Shay's assertion. Meyer did testify that dispatch informed him that Shay was on 

probation.  But the officer only assumed from this information that Shay had a probation 

condition requiring him not to drink alcohol to excess.               He asked Shay if he had been 

drinking more than he was allowed to, and then asked him to take a portable breath test. 

But Meyer did not take any further action on this issue; in particular, he did not restrain 

Shay in any way. 

                 Shay also argues that he was in custody when he made his statement to 

Trooper Duell. Duell began with a brief pat-down for weapons. Duell then began asking 

    7    State v. Smith, 38 P.3d 1149, 1154 (Alaska 2002).
 

    8    Id. at 1153.
 

    9    Id.
 

    10   Id.
 

                                                     5                                                2316
 

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 Shay questions about why he was walking alone on the side of the road in a rural area 

 in   early   winter, why   he   was dirty   and   with   whom   he had   been   socializing.        Shay's 

 answers were vague and noncommital. The entire length of Shay's pre-Miranda contact 

 with Duell was about thirteen minutes. 

                 Shay argues that Meyer placed him in custody when the officer told Shay 

to "have a seat" on the bumper (while Duell was asking questions), thereby directing 

Shay to a physical location.   He argues that a reasonable person would not have felt free 

to leave after receiving this direction. 

                 The superior court assumed that the restrictions on Shay's movement could 

constitute a seizure under the Fourth Amendment - a seizure that had to be supported 
by   reasonable   suspicion.11      But   this   observation   does   not   establish   that   Shay   was   in 

custody for Miranda  purposes.            In Berkemer v. McCarty, the United States Supreme 

Court held that a person who is subjected to a traffic stop is not necessarily entitled to 
Miranda warnings, even if they do not reasonably believe that they are free to leave.12 

                 This    court    has   extended     the  Berkemer      rationale     to  other    types    of 

investigatory   stops.     Investigatory   stops   are   generally   temporary   and   brief,   and   they 

generally take place in public, where the suspect is not subjected to the coercive pressures 
and isolation of a custodial interrogation.13  A suspect is not entitled to a Miranda warning 

during an investigatory stop, unless they are "detained under circumstances substantially 

      11 See generally Majaev v. State, 223 P.3d 629, 632 (Alaska 2010) (indicating that, if a 

 seizure   occurs   that   triggers   constitutional   protections,   "the   next   inquiry   is   whether   the 
 investigatory stop falls within the 'reasonable suspicion exception to the probable cause 
 requirement.'" (quoting  Waring v. State, 670 P.2d 357, 363 (Alaska 1983))). 

     12   468 U.S. 420, 436-37, 440 (1984). 

     13   Blake v. State, 763 P.2d 511, 514 (Alaska App. 1988). 

                                                      6                                                 2316
 

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more coercive than the typical traffic stop, and that coercion actually impairs the free 
exercise of the privilege against self-incrimination."14 

                So, inBlake v. State, we held thatMiranda warnings were not required when 
a trooper stopped a suspect to question him about shooting a bear.15                In McCollum v. 

State, we held that no Miranda warnings were required when a trooper stopped a suspect 

in a parking lot and required him to sit in a patrol car while the trooper questioned him 
about damaging shopping carts.16         And in McNeill v. State, we held that warnings were 

not required when a trooper came into a suspect's home to question him about a domestic 
disturbance.17 

                Shay's contact with the police appears to be a routine investigative stop like 

these reported decisions.      Judge Bauman found that Duell had reasonable suspicion to 

justify questioning Shay - he was dirty and wet and hitchhiking in a rural area just a mile 

from the scene of a high-speed chase.          And Trooper Duell's questioning of Shay took 

place    on   the  side  of  a  public    road,  with   only   one   other   officer   present,  under 

circumstances that were far different than the coercive atmosphere of a police station. 

                Shay also notes that when Duell eventually placed him in his vehicle, Duell 

instructed the dispatcher to notify Shay's probation officer that "he was holding Shay." 

This conversation allegedly occurred immediately before Duell gave Shay his Miranda 

warnings.    Again, the record does not support Shay's argument.             Duell did ask dispatch 

to contact Shay's probation officer, but he did not ask the dispatcher to tell the probation 

     14  Id. at 515.
 

     15  Id. at 512, 514-15.
 

     16  808 P.2d 268, 269-70 (Alaska App. 1991).
 

     17  984 P.2d 5, 6-7 (Alaska App. 1999).
 

                                                   7                                              2316
 

----------------------- Page 8-----------------------

officer that he was holding Shay.      Shortly thereafter, Duell told Shay that he was not 

under arrest.  Thus the record suggests that Duell was not contacting Shay's probation 

officer to report that he had arrested Shay for a probation violation; he was contacting the 

officer to ask whether he should arrest him. 

               In any event, all of the statements in dispute were made before Shay was 

placed in the patrol car. During this time, the circumstances of Shay's detention were not 

more coercive than the investigative stops in Blake,McCollum, andMcNeill. Duell never 

asked   accusatory questions, never confronted Shay with incriminating evidence, and 

never pressured   him   in any way.    He simply tried to clarify Shay's alibi.      When the 

trooper was satisfied that Shay's alibi was likely false, he put him in the police vehicle 

and   gave   him   a  Miranda  warning.    We   conclude   that   these   circumstances   did   not 

constitute custodial interrogation. 

        Conclusion 

               We AFFIRM the trial court judgment. 

                                                8                                          2316
 
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