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Meyer v. State (1/22/2016) ap-2486

Meyer v. State (1/22/2016) ap-2486

                                                                                                  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@ akcourts.us  



                                    IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                             



RUSTY  K.  MEYER,  

                                                                                                                                                                                   

                                                                                                                               Court of Appeals No. A-11343  

                                                                                                                                                                                                  

                                                                   Appellant,                                                Trial Court No. 3PA-11-014 CR  



                                                  v.                                                                                           O   P   I   N   I   O   N  



STATE  OF  ALASKA,                                                                                                                            ON  REHEARING  



                                                                   Appellee.                                                    No.  2486  -  January  22,  2016  



                                 Appeal from the Superior Court, Third Judicial District, Palmer,  

                                                    

                                                                                                                                                                     

                                 Vanessa H. White, Judge.  

                                                                               



                                 Appearances:   Marjorie Mock, under contract with the Public  

                                                                                                                                                                        

                                 Defender   Agency,   and   Quinlan   Steiner,   Public   Defender,  

                                                                                                                                                             

                                 Anchorage, for the Appellant.  Terisia K. Chleborad, Assistant  

                                                                                                                                                                

                                 Attorney General, Office of Criminal Appeals, Anchorage, and  

                                                                                                                                                                               

                                  Craig W. Richards, Attorney General, Juneau, for the Appellee.  

                                                                                                                                                                                         



                                 Before:  Mannheimer, Chief Judge, and Allard, Judge.  

                                                                                                                                                                 



                                 Judge MANNHEIMER.  

                                                 



                                 The Appellant, Rusty K. Meyer, seeks rehearing of our earlier decision in                                                                                                          



this case:              Meyer v. State                         , unpublished, 2015 WL 1604860 (Alaska App. 2015).                                                                                       



                                 Meyer   was   convicted   of   felony   driving under                                                                      the   influence   based   on  



evidence obtained during Meyer's encounter with the police at a fireworks stand on the                                                                                                                           



Parks Highway.                           Before his trial, Meyer filed a motion to suppress this evidence, arguing                                                                                    


----------------------- Page 2-----------------------

that   the   police   had   subjected   him   to   an   investigatory   stop   without   the   necessary  



reasonable suspicion to justify the stop.                                                                                                            



                                                  The superior court held an evidentiary hearing and made findings of fact                                                                                                                                                                                         



regarding what exactly happened during Meyer's encounter with the police.                                                                                                                                                                                                                  Based on   



its findings of fact, the superior court concluded that Meyer's encounter with the police                                                                                                                                                                                                                   



amounted to an investigatory stop for purposes of the Fourth                                                                                                                                                                                Amendment.    But the   



superior court denied Meyer's suppression motion because the court concluded that this                                                                                                                                                                                                                               



investigatory stop was supported by reasonable suspicion.                                                                                                                                                               



                                                  On appeal, this Court upheld the superior court's decision on a different                                                                                                                                                                  



ground:     we   concluded   that,   given   the   facts   found   by   the   superior   court,   Meyer's  



encounter with the police did not amount to an investigatory stop - thus making the                                                                                                                                                                                                                                  



issue of reasonable suspicion moot.                                                                                                  Meyer, 2015 WL 1604860 at *2-3.                                                                                                         



                                                  In his petition for rehearing,                                                                                Meyer concedes that an appellate court is                                                                                                                  



authorized to affirm a lower court's ruling using a                                                                                                                              legal  analysis that is different from the                                                                                           

                                                                                               1   That is, Meyer implicitly acknowledges that, in such circum- 

one the lower court used.                                                                                                                                                                                                                                                                            



stances, an appellate court need not defer to the lower court's differing legal analysis of  

                                                                                                                                                                                                                                                                                                                          



the case, but can instead apply its own independent legal analysis.  

                                                                                                                                                                                                                                                       



                                                  But Meyer argues that our decision in his case did not rest on a rejection of  

                                                                                                                                                                                                                                                                                                                          



the superior court's legal analysis.   Rather, Meyer contends, our decision rested on a  

                                                                                                                                                                                                                                                                                                                             



rejection of a finding of fact  made by the superior court.  

                                                                                                                                                                                            



                                                  More   specifically,   Meyer   argues   that   the   superior   court's   Fourth  

                                                                                                                                                                                                                                                                                                     



Amendment conclusion - that Meyer was subjected to an investigatory stop - was a  

                                                                                                                                                                                                                                                                                                                              



             1           See Torrey v. Hamilton                                                                , 872 P.2d 186, 188 (Alaska 1994) (an appellate court can                                                                                                                                              



affirm a trial court's ruling on any legal theory revealed by the record, including one rejected                                                                                                                                                                                                      

by the trial court);                                           see also Russell v. Anchorage                                                                              , 626 P.2d 586, 588 n.                                                      4 (Alaska                         App. 1981).  



                                                                                                                                                         - 2 -                                                                                                                                                     2486
  


----------------------- Page 3-----------------------

finding of fact that we were required to defer to, and not a conclusion of law that we                                                                                                                                                                                                                                                



could independently review.                                                                                     



                                                     To support this argument, Meyer relies on decisions of the Alaska Supreme                                                                                                                                                                                   



Court which declare that a court's ruling as to whether a person was seized for Fourth                                                                                                                                                                                                                                  



Amendment   purposes   is   a   finding   of   fact   -   a   finding that                                                                                                                                                                              is   reviewed   under   the  



deferential "clearly erroneous" standard of review.                                                                                                                                                    See Majaev v. State                                                              , 223 P.3d 629,                          



631 (Alaska 2010);                                                           Waring v. State                                                , 670 P.2d 357, 364 n. 15 (Alaska 1983).                                                                                                                            



                                                     If Meyer is correct on this point, then this Court committed error when we                                                                                                                                                                                                        



independently reviewed the superior court's conclusion that Meyer's encounter with the                                                                                                                                                                                                                                                 



police constituted an investigatory stop.                                                                                                                    For as Meyer points out, an appellate court is                                                                                                                                 



not authorized to use its independent judgement when assessing the facts of a case under                                                                                                                                                                                                                                    



the "clearly erroneous" standard of review.                                                                                                                             Instead, an appellate court must defer to the                                                                                                                  



lower court's view of the facts:                                                                                            we must accept the facts as found by the lower court                                                                                                                                             



unless, based on the record, we are left "with a definite and firm conviction ... that a                                                                                                                                                                                                                                                     



                                                                                                    2  

mistake has been made".                                                                                 



                                                     But as we explain in this opinion, even though our supreme court declared  

                                                                                                                                                                                                                                                                                                                  



in  Waring and Majaev that it is a "question of fact" whether a person's encounter with  

                                                                                                                                                                                                                                                                                                                                 



the police constituted a seizure for Fourth Amendment purposes, the supreme court did  

                                                                                                                                                                                                                                                                                                                                      



not actually follow this rule in either  Waring or Majaev .   Instead, the supreme court  

                                                                                                                                                                                                                                                                                                                             



decided  the  Waring  and  Majaev  appeals  using  the  principle  that  appellate  courts  

                                                                                                                                                                                                                                                                                                                        



normally  apply  to  all types of cases:   A trial court's findings of  historical fact  are  

                                                                                                                                                                                                                                                                                                                                     



reviewed deferentially,  under the "clearly erroneous" standard;  but the proper  legal  

                                                                                                                                                                                                                                                                                                                              



             2             Geczy v. LaChappelle                                                              , 636 P.2d                           604, 606 n.                                6 (Alaska                           1981); Mathis v. Meyeres                                                                        , 574   



P.2d 447, 449 (Alaska 1978).                                                                                    



                                                                                                                                                                 - 3 -                                                                                                                                                             2486
  


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

categorization  of those facts -                                                  i.e., the assessment of the legal consequences of the trial                                                                            



court's findings of fact - is a question of law that the appellate court evaluates                                                                                                                        de novo                 .  



                                   This is the principle that applies to appellate review of trial court rulings                                                                                                 



regarding whether a Fourth Amendment seizure took place -                                                                                                        i.e., rulings as to whether                 



particular police conduct constituted an investigatory stop or an arrest.                                                                                                            And, indeed, this                   



is the principle that the supreme court applied in                                                                             Waring  and  Majaev .    



                                   Accordingly, this Court acted correctly when we independently evaluated                                                                                               



whether the facts of Meyer's case constituted an investigatory stop.                                                                                                              



                                                                                                                                                                                                       

                 A closer look at the  Alaska Supreme Court's decisions in  Waring and  

                 Majaev  



                                                                                                                                                                                                                             

                                   The question that we have been discussing has its origin in footnote 15 of  



                                                                                                                                                                                                                        

the  Waring opinion, 670 P.2d at 364.  In this footnote, the supreme court declared that  



                                                                                                                                                     

"[w]hether a seizure has occurred is a question of fact."  



                                                                                                                                                                                                           

                                   But as the  Waring court then explained, "the superior court [in Waring's  



                                                                                                                                                                                                                                     

case] did not make a specific finding [on the question of whether] a seizure occurred."  



                                                                                                                                                                                                                         

Ibid.  If the question of whether a seizure occurred were truly a question of fact, then one  



                                                                                                                                                                                                                         

would expect the supreme court to have remanded Waring's case to the trial court so that  



                                                                                                                                                     

the trial judge could make a finding on this factual issue.  



                                                                                                                                                                                                              

                                   (Alaska Criminal Rule 12(d) requires trial judges to make explicit findings  



                                                                                                                                                                                                                          

of fact when adjudicating suppression motions.  When a trial judge fails to make all the  



                                                                                                                                                                                                                         

findings  necessary  to  resolve  a  suppression  issue,  the  case  must  be  remanded  for  



                                                             3  

                                    

 supplemental findings.) 



         3        See Rockwell v. State                               , 176 P.3d 14, 21 (Alaska App. 2008);                                                       Haskins v. Anchorage                                   , 22   



P.3d 31, 32 (Alaska App. 2001);                                                  Long v. State                     , 837 P.2d 737, 742 (Alaska App. 1992).                                                              



                                                                                                            - 4 -                                                                                                      2486
  


----------------------- Page 5-----------------------

                                                                                                                              

                     But instead of remanding Waring's case to the trialcourt, the supreme court  



                                                                                                                                

proceeded to decide the seizure question independently. The supreme court declared that  



                                                                                                                                    

it was entitled to  do  this  because the ultimate issue of whether, under given facts, a  



                                                                                                                    

seizure occurred was really a question of law:  "After reviewing the record surrounding  



                                                                                                                                  

the initial contact, we conclude that, as a matter of law, the [state trooper's] actions ...  



                                                                                                                               

constituted a seizure of [Waring's co-defendant] Randy Robinson."  Waring, 670 P.2d  



                                         

at 364 (emphasis added).  



                                                                                                                               

                     The supreme court pursued a similar course in Majaev - applying its own  



                                                                                                 

independent legal analysis to the facts found by the trial court.  



                                                                                                                       

                     In Majaev, the trial court affirmatively found that the trooper's encounter  



                                                                                                                                

with the defendant did not constitute a seizure.   That is, the trial court found that the  



                                                                                                                                  

trooper's conduct did not amount to a restraint on Majaev's liberty,  either by use of  



                                                                                                                        

physical force or by "show of authority".  Majaev, 223 P.3d at 631.  And the supreme  



                                                                                                                             

court, citing Waring, declared that the trial court's ruling was a finding of fact that could  



                                                                                  

be reversed only if it was "clearly erroneous".  Ibid.  



                                                                                                                             

                     But two pages later,  the supreme court reversed the trial court's ruling  



                                                                                                                             

because the supreme court concluded that the trial court engaged in the wrong  legal  



                                                                                                                               

analysis (because the trialcourt focused on the wrongaspect of Majaev's encounter with  



                                                                                                                                 

the officer).  Then, after rejecting the trial court's legal evaluation of the encounter, the  



                                                                                                                           

supreme court independently declared that, under the facts of Majaev's case, a seizure  



                                              

occurred as a matter of law.  



                                                                               

                     Here is the supreme court's analysis:  



                       

                                                                                                     

                               The district court correctly determined that Majaev  

                                                                                                           

                     apparently  felt  free  to  leave  when  Trooper  Bordner  first  

                                                                                                            

                    parked his vehicle and [Majaev] in fact did leave.   But the  

                                                                                                  

                     critical moment  for  the  purpose  of  our  analysis  occurred  



                                                               - 5 -                                                          2486
  


----------------------- Page 6-----------------------

                                                                                                       

                    when Trooper Bordner signaled to Majaev to return, which  

                                                                                                       

                    triggered the statutory prohibition against ignoring a peace  

                                                                                                          

                     officer.  At that moment, Majaev stopped and complied with  

                                                                                                          

                     Trooper Bordner's hand signal, in a manner consistent with  

                                                                  

                    his perceived duty under AS 28.35.182.  



                                                                                                         

                               The show of authority in this situation emanated from  

                                                                                                  

                    AS   28.35.182  and  its  effect  on  a  reasonable  person's  

                                                                                                           

                     evaluation of whether he is free to leave.  The existence and  

                                                                                                        

                     applicability  of  [this]  statute  distinguishes  this  case  from  

                                                                                                     

                    holdings in other jurisdictions that a police officer's gesture  

                                                                                                     

                     alone does not constitute a seizure.   Because of the statute,  

                                                                                                   

                     Trooper Bordner's gesture was a sufficient show of authority  

                                                                                                           

                    to make a reasonable person in Majaev's position believe that  

                                                                                                              

                    he was no longer free to leave.   ...   [Thus,] a seizure did in  

                                         

                     fact occur[.]  



                                              

Majaev, 223 P.3d at 633-34.  



                                                                                                                             

                    As this Court noted in Phillips v. State, 271 P.3d 457, 468 (Alaska App.  



                                                                                                                         

2012), "[s]ometimes one must look beyond what a court says  it is doing and, instead,  



                                                                    

focus on what the court actually is doing."  



                                                                                                                          

                     Even though the supreme court's opinions in  Waring and Majaev declare  



                                                                                                                         

that whether a seizure occurred  is a "question of fact",  the supreme court actually  



                                                                                                                                

resolved both of these appeals by applying its own  independent legal analysis to the  



                                                              

historical facts found by the trial court.  



                                                          

           The general principle at work here  



                                                                                                                             

                     By resolving the Waring and Majaev appeals this way, the supreme court  



                                                                                                                              

applied a principle that appellate courts employ in many different situations:   A trial  



                                                                                                                    

court's findings of historicalfact are reviewed deferentially under the "clearly erroneous"  



                                                               - 6 -                                                          2486
  


----------------------- Page 7-----------------------

standard of review.                      But the question of how those facts should be legally categorized -                                                                



in other words, the assessment of the                                       legal consequences                       of the trial court's findings of                        



fact - is a question of law that the appellate court evaluates                                                              de novo          .  



                            For instance,               even though a                   superior court's award of child custody is                                            

                                                                                         4   the question of "whether the trial  court  

typically reviewed for abuse of discretion,                                                                                                                          



applied the correct [legal] standard in a custody or visitation determination is a question  

                                                                                                                                                                



of law" which the supreme court reviews de novo.  Ross v. Bauman, 353 P.3d 816, 823  

                                                                                                                                                                          



                                5  

(Alaska  2015).                       Likewise,  the  question  of  "whether  [the  superior  court's]  factual  

                                                                                                                                                                   



findings are sufficient to support an award of custody or visitation to a third party is a  

                                                                                                                                                                               



legal issue to which [the supreme court applies its] independent judgment."  Ibid.  

                                                                                                                                                                       



                            Similarly, when the supreme court reviews the superior court's determina- 

                                                                                                                                                            



tion that a child is in need of aid, the supreme court will give deference to the superior  

                                                                                                                                                                 



court's factual findings, but the supreme court will then independently review the legal  

                                                                                                                                                                        



determination of whether probable cause exists to believe that the child is in need of aid.  

                                                                                                                                                                                   



In re J.A. , 962 P.2d 173, 175-76 (Alaska 1998).  

                                                                                                     



                            Turning to the arena of criminal law, we note that in Michael v. State, 115  

                                                                                                                                                                          



P.3d 517  (Alaska  2005), the supreme court held that this Court committed error by  

                                                                                                                                                                            



employing the deferential "clearly erroneous" standard of review when we evaluated a  

                                                                                                                                                                               



trial court's ruling on a sentencing mitigator.  

                                                                                            



                            The supreme court explained that the trial court's ruling contained both  

                                                                                                                                                                        



findings of historical fact and a conclusion of law drawn from those facts.  While the trial  

                                                                                                                                                                          



court's findings of historicalfact were entitled to deference under the "clearly erroneous"  

                                                                                                                                                           



       4      Ebertz v. Ebertz                , 113 P.3d 643, 646 (Alaska 2005).                                     



       5  

                                                                                                                                                                             

              Citing Osterkamp v. Stiles, 235 P.3d 178, 184 (Alaska 2010); Elton H. v. Naomi R.,  

                                                                    

 119 P.3d 969, 973 (Alaska 2005).  



                                                                                    - 7 -                                                                                2486
  


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

                                                                                                                  

standard of review,  this Court committed error by failing to employ its independent  



                                                                                                                            

judgement   when   we   evaluated  the  trial  court's  conclusion  regarding  the  legal  



                                                                                                                                   

consequences of those facts.  Here is how the supreme court explained this principle:  



                       

                                                                                                    

                     We hold that the correct standard of review of a superior  

                                                                                                 

                     court's  application  of  statutory  aggravating and  mitigating  

                                                                                                

                     factors to a given set of facts is de novo review.  



                                                                                                             

                               The existence or non-existence of an aggravating or  

                                                                                                          

                     mitigating factor is a mixed question of law and fact.   The  

                                                                                                      

                     determination of whether the defendant's conduct is among  

                                                                                                     

                     the least serious conduct within the definition of the offense  

                                                                                                           

                     involves a two-step process:  the court must (1) assess the  

                                                                                                     

                     nature  of  the  defendant's  conduct,  [which  is]  a  factual  

                                                                                                    

                     finding, and then (2) make the legal determination of whether  

                                                                                                            

                     that conduct falls within the statutory standard of "among the  

                                                                                                                  

                     least serious conduct within the definition of the offense."  

                                                                                                       

                     Any factual findings made by the court regarding the nature  

                                                                                                           

                     of the defendant's conduct are reviewed for clear error, but  

                                                                                                            

                     whether those facts establish that the conduct "is among the  

                                                                                                                  

                     least serious" under AS 12.55.155(d)(9) is a legal question.  



                                                                      

Michael, 115 P.3d at 519 (emphasis added).  



                                                                                                                                

                     In the footnote that accompanies this passage from Michael (footnote 7),  



                                                                                                                             

the supreme court approvingly cited Ornelas v. United States, 517 U.S. 690, 116 S.Ct.  



                                                                                                                                

 1657, 134 L.Ed.2d 911 (1996) - a case which holds that, once the historical facts are  



                                                                                                                      

established by the trial court, the question of whether those facts suffice to establish  



                                                                                                                             

"probable cause" or "reasonable suspicion" is a legal question to be determined de novo  



                                                                                                                     

by the appellate court.  Ornelas, 517 U.S. at 696-99, 116 S.Ct. at 1661-63.  



                                                                                                                                

                     A review of case law from around the country shows that courts often use  



                                                                                                                                 

the phrase "issue of fact" when they are referring to a fact-intensive inquiry - such as  



                                                                                                                               

whether a seizure occurred in a particular case.                             But as shown by the  wording and  



                                                               - 8 -                                                          2486
  


----------------------- Page 9-----------------------

                                                                                                                              

outcome of the Alaska Supreme Court decisions we have  just been discussing, even  



                                                                                                                                 

though appellate courts may sometimes use the phrase "issue of fact" to describe the  



                                                                                                                            

question before them, these courts actually apply the principle we have set forth above  



                                                                                                                                 

- the principle that the proper legal categorization of given facts is an issue of law, not  



                           

an issue of fact.  



                                                                                                                                

                     One of the better discussions of this point is found in Watts v. Indiana, 338  



                                                                             

U.S. 49, 51; 69 S.Ct. 1347, 1348; 93 L.Ed. 1801 (1949):  



                       

                                                                                                               

                               [The  phrase]  "issue  of  fact"  ...  does  not  cover  a  

                                                                                                          

                     conclusion   drawn   from   [findings   of   fact],   when   that  

                                                                                                   

                     conclusion incorporates standards ... or criteria for judgment  

                                                                                                                  

                     which  in  themselves  are  decisive  of  constitutional  rights.  

                                                                                                       

                     [Defining such] standards and criteria,  ...  and [the] proper  

                                                                                                             

                     applications [of those standards and criteria],  are issues for  

                                                                                                             

                     [an appellate court's] adjudication.   ...   [I]t is important  to  

                                                                                                         

                     distinguish between issues of fact that are ... foreclosed [from  

                                                                                                            

                     relitigation on appeal] and issues which, though cast in the  

                                                                                                            

                     form of determinations of fact, are the very issues [to  be]  

                                             

                     review[ed] [on appeal].  



                                                                                                                                       

                     The United States Supreme Court is not alone in endorsing this principle.  



                                                                                                                                

As demonstrated by the following cases,  when courts from  around  the country are  



                                                                                                                                 

confronted with appeals that squarely raise this issue, they expressly recognize that the  



                                                                                               

proper legal categorization of given facts is a question of law.  



                                                                                                                                

                     Thus,  in  State  v.  Burroughs ,  955  A.2d  43,  48-50  (Conn.  2008),  the  



                                                                                                                                    

Connecticut Supreme Court held that the question of whether a seizure  occurred is a  



                                                                                                                           

mixed question of fact  and  law.                       An appellate court must defer to the trial court's  



                                                                                                                                 

findings of historical fact.   But the ultimate test for whether a seizure occurred is  an  



                                                                                                                              

objective test: whether, in view of allthe circumstances, a reasonable person would have  



                                                                                                                              

believed that he or she was not free to leave.  When an appellate court evaluates the facts  



                                                               - 9 -                                                          2486
  


----------------------- Page 10-----------------------

                                                                                                                                  

of the case (as found by the trial court) against this objective standard, it must use its  



                                        

independent judgement.  



                                                                                                                                  

                     The Connecticut court directly addressed this principle in footnote 5 of its  



opinion:  



                       

                                                                                                             

                               We  ...  note  that  [we  have]  been  inconsistent  in  

                                                                                                           

                     articulating  the  test  for  reviewing  whether  a  seizure  has  

                                                                                                                

                     occurred.  In one line of cases, we have stated that whether a  

                                                                                                          

                     seizure occurred is a question of fact. In other cases, we have  

                                                                                                

                     distinguished between the trial court's findings of "historical"  

                                                                                                      

                     fact,  which  we  do  not  overturn  unless  they  are  clearly  

                                                                                                      

                     erroneous,  and the ultimate question of whether a seizure  

                                                                                              

                     occurred,  which  is  subject  to  a  "scrupulous  independent  

                                                                                                     

                     review   of   the  record  to  ensure  that   the  trial  court's  

                                                                                                           

                     determination was supported by substantial evidence."  



                                                                                                               

                               We  now  clarify  that  appellate  review  of  whether  a  

                                                                                                           

                     seizure occurred is a mixed question of law and  fact,  and  

                                                                                                            

                     when there is no dispute as to the underlying facts, as in the  

                                                                                                   

                     present case,  or when the trial court's finding of historical  

                                                                                                            

                     facts  is  not  clearly  erroneous  ...  ,  it  is  the  duty  of  the  

                                                                                            

                     reviewing court to make an independent legal determination  

                                                                                                     

                     of whether a reasonable person in the  defendant's position  

                                                                                                    

                     would have believed that he was not free to leave.  



                                                                         

Burroughs, 955 A.2d at 48 (citations omitted).  



                                                                                                                                 

                     Many other appellate courts have explicitly acknowledged that this is the  



                                                                                                                              

proper approach.  See Henson v. United States, 55 A.3d 859, 863 (D.C. App. 2012) ("We  



                                                                                                                        

... review findings of historical fact only for clear error ... [and] we view the evidence  



                                                                                                                      

presented at the suppression hearing in the light most favorable to the party prevailing  



                                                                                                                         

below ... .  However, legal conclusions on Fourth Amendment issues, including whether  



                                                                                                                         

a seizure has occurred ... , are legal questions that we review de novo."); State v. Pannell,  



                                                              -  10 -                                                         2486
  


----------------------- Page 11-----------------------

                                                                                                                                 

901 P.2d 1321, 1323 (Idaho 1995) ("When reviewing 'seizure' issues, we defer to the  



                                                                                                                          

trial court's factual findings unless they are clearly erroneous.   [But we] freely review,  



                                                                                                                          

de  novo,  the  trial  court's  legal  determination  of  whether  or  not  an  illegal  seizure  



                                                                                                                                   

occurred."); Jones v.  State,  682 A.2d 248,  253 (Md.  1996) ("When the  question is  



                                                                                                                  

whether a constitutional right, such as ... a defendant's right to be free from unreasonable  



                                                                                                                   

searches and seizures, has been violated, the reviewing court makes its own independent  



                                                                                                                                 

constitutional appraisal, by reviewing the law and applying it to the peculiar facts of the  



                                                                                                                   

particular case."); State v. Lisenbee, 13 P.3d 947, 949 (Nev. 2000) ("Fourth Amendment  



                                                                                                                          

seizure issues ... often involve mixed questions  of  law  and fact.   This court reviews  



                                                                                                                              

findings  of  historical  facts   under   the  clearly  erroneous  standard,  but  the  legal  



                                                                                                                                   

consequences of those facts are questions of law which we review de novo."); State v.  



                                                                                                                          

Ingram, 331 S.W.3d 746, 756-57 (Tenn. 2011) ("The ultimate conclusion [as to] whether  



                                                                                                                                  

the  facts establish that a person was under custodial arrest is one of law."); State  v.  



                                                                                                                        

Carter,  812  P.2d  460,  465  n.  3  (Utah  App.  1991)  ("[A]  trial  court's  ultimate  



                                                                                                                                 

determination of whether on particular facts an encounter amounts to a seizure under the  



                                                                                                                       

fourth amendment has been held to be a legal conclusion and thus afforded no deference  



                                                                                                                              

on appeal, but reviewed under a correction of error standard."); State v. Thorn, 917 P.2d  



                                                                                                                                    

 108, 111 (Wash. 1996) ("[T]he determination of whether a seizure has occurred is a  



                                                                                                                                  

mixed question of law and fact.  The resolution by a trial court of differing accounts of  



                                                                                                                             

the  circumstances  surrounding  the  encounter  are  factual  findings  entitled  to  great  



                                                                                                                                    

deference.  ...  However, the ultimate determination of whether those facts constitute a  



                                                                                                                                

seizure is one of law and is reviewed de novo."); State v. Young, 717 N.W.2d 729, 736  



                                                                                                                                       

(Wis. 2006) ("Whether a person has been seized is a question of constitutional fact.  ...  



                                                                                                                                 

[W]e accept the [trial] court's findings of evidentiary or historical fact unless they are  



                                                                                                                          

clearly  erroneous,  but  we   determine  independently  whether  or  when  a  seizure  



                     

occurred.").  



                                                              -  11 -                                                         2486
  


----------------------- Page 12-----------------------

                                                                                                                              

                     Thus, when the Alaska Supreme Court applied its own independent legal  



                                                                                                                                   

analysis to the trial court's findings of fact in  Waring and Majaev,  it was following a  



                                                 

well-established legal principle.  



                                                                           

           One additional method of analyzing this controversy  



                                                                                                                               

                     Thus far in this opinion, we  have relied on traditional legal research and  



                                                                                                                                

textualanalysis to reach the conclusion that an appellate court independently assesses the  



                                                                                                                              

proper legal categorization of the facts found by a trial court.  But there is another way  



                                                                                                                                 

to approach  this problem:  by asking what the real-world consequences would be if,  



                                                                                                                          

in these situations, appellate courts adopted a "clearly erroneous" standard of review  



                                                             

versus a "de novo" standard of review.  



                                                                                                                             

                     Consider the following hypothetical case:  Two co-conspirators are using  



                                                                                                                            

a motor vehicle to transport contraband (e.g., illegal drugs, or bootleg alcohol, or stolen  



                                                                                                             

goods).  While their vehicle is parked along the street, and while the two co-conspirators  



                                                                                                                          

are sitting in it, a police officer approaches and begins to ask them questions.   Things  



                                                                                                                             

quickly go south for the co-conspirators:  this encounter leads to the discovery of their  



                                                                                                                        

contraband, and both of them end up as defendants in a criminal prosecution.  Because  



                                                                                                                                      

of administrative problems, the two defendants' cases are assigned to different judges.  



                                                                                                                   

                     Each defendant files a motion to suppress all evidence of the contraband,  



                                                                                                                        

arguing that  the  police officer engaged in an investigative stop without the required  



                                                                                                                    

reasonable suspicion of criminal activity.  It turns out that the police officer videotaped  



                                                                                                                              

the encounter, and the pertinent facts of the encounter are not in dispute.   But the two  



                                                                                                                                

judges reach different conclusions based on these same undisputed facts:  One of the  



                                                                                                                              

judges rules that the police officer's words and actions constituted an investigatory stop  



                                                                                                                  

-  i.e., a show of authority that would make  a  reasonable person in the defendants'  



                                                              -  12 -                                                         2486
  


----------------------- Page 13-----------------------

                                                                                                                              

position believe that they were no longer free to leave.  The other judge, however, rules  



                                                                                                                              

that the encounter never rose to this level of coercion, and thus no  investigatory stop  



                

occurred.  



                                                                                                                              

                      And now, add one final element to the hypothetical case:  Assume that,  



                                                                                                                        

given the existing case law dealing with investigatory stops,  the suppression motions  



                                                                                                                                   

were reasonably debatable, and the two  judges' differing conclusions as to whether a  



                                                                          

seizure occurred are each potentially justifiable.  



                                                                                                                        

                    If  an  appellate  court  is  required  to  employ  the  deferential  "clearly  



                                                                                                                          

erroneous" standard of review when it evaluates the trial judges' rulings - the judges'  



                                                                                                                              

differingconclusions as to whether a seizure occurred, given the undisputed facts -then  



                                                                                                                             

the appellate court would be required to affirm both of the contradictory rulings.  



                                                                                                                          

                    As we explained earlier, under the "clearly erroneous" standard of review,  



                                                                                                                                

an appellate court must affirm a trial court's ruling unless, after full examination of the  



                                                                                                                               

record, the appellate court is left with a definite and firm conviction that a mistake has  



                                                                                                                          

been made.   In this hypothetical, we are assuming that both of the trial judges' rulings  



                                                                                                                         

were reasonable.   Both of those rulings should therefore be affirmed under a "clearly  



                                  

erroneous" standard.  



                                                                                                                          

                    There are,  in fact,  areas of the law where appellate courts  will uphold  



                                                                                                                              

disparate rulings even when those rulings are made on exactly the  same facts.                                                 For  



                                                                                                                                

example, when we review a sentence of imprisonment for excessiveness, we employ the  



                                                                                                                               

"clearly mistaken" standard of review - a standard of review that is "founded on two  



                                                                                                                            

concepts: first, that reasonable judges, confronted with identical facts, can and will differ  



                                                                                                                                 

on  what constitutes an appropriate sentence; [and] second,  that society is willing to  



                                                                                                                              

accept these sentencing discrepancies,  so long as a judge's sentencing decision falls  



                                                              -  13 -                                                         2486
  


----------------------- Page 14-----------------------

within a permissible range of reasonable sentences."                                         State v. Hodari            , 996 P.2d 1230,       



                                    6  

 1232 (Alaska 2000).                   



                       But as demonstrated by our supreme court's decision in Michael v. State,  

                                                                                                                                             



 115 P.3d 517 (Alaska 2005), our supreme court is not willing to countenance this same  

                                                                                                                                             



level of idiosyncracy in all sentencing rulings.  In Michael, the supreme court held that  

                                                                                                                                                



an appellate court must use de novo review when it evaluates a sentencing judge's ruling  

                                                                                                                                             



as to whether given facts constitute a particular statutory aggravating or mitigatingfactor.  

                                                                                                                                                        



Michael, 115 P.3d at 519.  

                                                



                       By requiring de novo  review,  the supreme court adopted a standard  of  

                                                                                                                                                  



review that imposes a greater degree of uniformity and predictability - by treating the  

                                                                                                                                                 



ultimate question as an issue of law.  Once an appellate court categorizes a given set of  

                                                                                                                                                  



facts as constituting proof of a specific  aggravator or mitigator (or as not constituting  

                                                                                                                                  



proof of that aggravator or mitigator), this becomes precedent for all future trial court  

                                                                                                                                             



rulings on this subject.  

                                          



                       These values of uniformity and predictability are especially important when  

                                                                                                                                             



courts issue rulings about the meaning or scope of constitutional guarantees, such as the  

                                                                                                                                                 



Fourth Amendment's protection against unreasonable searches and seizures.  Society is  

                                                                                                                                                    



not  willing  to  have  constitutional  protections  vary  according  to  the  views  of  the  

                                                                                                                                                



particular trial judge assigned to a defendant's case.   And judges, lawyers, and police  

                                                                                                                                            



officers need predictable rules when they enforce and apply Fourth Amendment law.  

                                                                                                                                            



                       Employing a standard of "de novo" or "independent" review on appeal  

                                                                                                                                          



helps to foster these goals of uniformity  and predictability.                                              Employing a deferential  

                                                                                                                                    



"clearly erroneous" standard of review tends to defeat them.  Thus, to the extent that the  

                                                                                                                                                 



supreme court's decisions in Waring and Majaev are ambiguous on this point (i.e., the  

                                                                                                                                                 



      6     Quoting  Erickson v. State                , 950 P.2d 580, 586 (Alaska App. 1997).                             



                                                                      -  14 -                                                                 2486
  


----------------------- Page 15-----------------------

                                                                                                                      

standard of review that an appellate court should apply when reviewing a trial court's  



                                                                                                                            

ruling as to whether a seizure occurred),  Waring and Majaev  should be interpreted as  



                                                                                

applying and endorsing a de novo standard of review.  



          Conclusion  



                                                                                                              

                    We  conclude that we acted properly when we applied our independent  



                                                                                                                       

judgement to the question  of whether,  under the facts found by the superior court,  



                                                                                                                      

Meyer's encounter with the police constituted a seizure  for  purposes of the Fourth  



                      

Amendment.  



                                                                                                                    

                    Accordingly, havingconsidered Meyer's petition for rehearing, we reaffirm  



                                                

our earlier decision in this case.  



                                                            -  15 -                                                      2486
  

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