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Hurlburt v. State (6/1/2018) ap-2601

Hurlburt v. State (6/1/2018) ap-2601

                                                          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  



JEROMY FRANCIS HURLBURT,  

                                                                           Court of Appeals No. A-11999  

                                       Appellant,                        Trial Court No. 3KN-12-431 CR  



                              v.  

                                                                                       O P I N I O N  

STATE OF ALASKA,  



                                       Appellee.                              No. 2601 - June 1, 2018  



                    Appeal f            

                                rom the Superior Court, Third Judicial District, Kenai,  

                    Carl Bauman, Judge.  



                    Appearances: Olena Kalytiak Davis, Attorney at Law, under  

                                                                                        

                    contract with the Office of Public Advocacy, Anchorage, for the  

                                                          

                    Appellant.        Michael  Sean  McLaughlin,  Assistant  Attorney  

                                                             

                    General,  Office  of  Criminal  Appeals,  Anchorage,  and  Jahna  

                                                 

                    Lindemuth, Attorney General, Juneau, for the Appellee.  



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

                                                             

                    Superior Court Judge. *  

                                                      



                    Judge ALLARD.  



                    Jeromy Francis Hurlburt was the driver of a motor vehicle that veered off                                



the   road   and   onto   a   bike   path,   seriously   injuring   two   female   joggers.     During   the  



     *    Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  



Constitution and Administrative Rule 24(d).  


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

investigation that followed, the lead investigating officer erroneously told Hurlburt that                                                                                                                                                                                                                                                                                                                 



he was required to submit to a blood test because he had caused an injury accident.                                                                                                                                                                                                                                                                                                                            In  



response, Hurlburt expressed concern about what the blood test might show and he told                                                                                                                                                                                                                                                                                                                     



the officer that he had used methamphetamine "for the first time" four days earlier.                                                                                                                                                                                                                                                                                                                                             



Based, in part, on this statement, the officer administered field sobriety tests to Hurlburt.                                                                                                                                                                                                                                                                                                                                    



Hurlburt failed the field sobriety tests, and was then arrested for driving under the                                                                                                                                                                                                                                                                                                                       



influence.     A later                                                                        blood   test revealed significant amounts of methamphetamine in                                                                                                                                                                                                                                                    



Hurlburt's system.   



                                                                Prior to trial, Hurlburt's attorney moved to suppress Hurlburt's statements                                                                                                                                                                                                                               



regarding his prior drug use and the results of the blood test.                                                                                                                                                                                                                                    Hurlburt argued that this                                                                               



evidence should be suppressed as the fruit of an unlawful seizure - an unlawful seizure                                                                                                                                                                                                                                                                                                    



that he contended occurred when the officer erroneously told him that he was required                                                                                                                                                                                                                                                                                               



to   submit  to  a   mandatory   blood   test.     Hurlburt   also   argued   that   the   officer   lacked  



reasonable suspicion to conduct the field sobriety tests that led to his arrest, and the                                                                                                                                                                                                                                                                                                                     



blood test results should also be suppressed on that basis.                                                                                                                                                                                                                              The superior court rejected                                                                  



both of these arguments and denied Hurlburt's motion to suppress.                                                                                                                                                                                                                                                                 Hurlburt was later                                                   



convicted, following a jury trial, of driving under the influence and two counts of first-                                                                                                                                                                                                                                                                                                           



degree assault (for recklessly causing serious physical injury to the two joggers by means                                                                                                                                                                                                                                                                                                     

of a dangerous instrument).                                                                                                          1  



                                                                                                                                                                                                                                                                                                                                                                                                                    

                                                                On appeal, Hurlburt challenges the superior court's denial of his motion to  



                                                                                                                                                                                                                                                                                                                                                                               

 suppress.                                             For  the  reasons explained  here, we conclude that the officer's mistaken  



                                                                                                                                                                                                                                                                                                                                                                                                         

 statement about the mandatory blood test did not result in an unlawful seizure.  We also  



                                                                                                                                                                                                                                                                                                                                                                                                                                 

conclude  that  there  was  reasonable  suspicion  to  conduct  the  field  sobriety  tests.  



                 1              AS 11.41.200(a)(1).  



                                                                                                                                                                                                   - 2 -                                                                                                                                                                                        2601
  


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

Accordingly, we uphold the superior court's denial of Hurlburt's suppression motion,  

                                                                                                                         



and we affirm Hurlburt's convictions.  

                                         



          Background facts and prior proceedings  

                                                       



                     On March 21, 2012, Jeromy Hurlburt was driving on Kalifornsky Beach  

                                                                                                                           



Road, a short distance fromits intersection with the Sterling Highway. As Hurlburt's car  

                                                                                                                                 



approached a curve in the road, Hurlburt drove straight ahead - crossing the center line,  

                                                                                                                              



and cutting off an oncoming driver.  Hurlburt's car then continued in a straight line off  

                                                                                                                                



the road and onto a bike path, striking and seriously injuring two women who were  

                                                                                                                             



jogging on the path.  

                        



                     There  was  no  apparent  explanation  for  this  accident.                                 The  driving  

                                                                                                                         



conditions were not hazardous, and the road was not icy. Witnesses to the accident later  

                                                                                                                              



reported that it looked as though the driver had simply failed to follow the curve of the  

                                                                                                                                



road.  



                     Sergeant Stace Escott of the Soldotna Police Department and Sergeant  

                                                                                                                       



Eugene Fowler of the Alaska State Troopers were among the first officers to respond to  

                                                                                                                                  



the accident scene.  Sergeant Escott took the lead in the investigation, which included  

                                                                                                                       



coordinating the medical response, securing and documenting the site, and interviewing  

                                                                                                                  



the witnesses at the scene before they left.  

                                                           



                     After speaking to the victims and collecting the names of some of the  

                                                                                                                                



witnesses who sawtheaccident, Escott asked Hurlburt what happened. Hurlburt claimed  

                                                                                                                         



that the accident was caused by a simultaneous failure of several mechanical systems in  

                                                                                                                                  



his car.  Hurlburt told Escott that, as he was driving, he felt or heard something break in  

                                                                                                                                  



his car and, immediately afterwards, the steering on the car locked up, the gas pedal  

                                                                                                                            



locked up, and the brakes locked up.  Hurlburt said that there was nothing he could do  

                                                                                                                                 



to stop the car or to steer it back onto the road.  

                                                                 



                                                              - 3 -                                                         2601
  


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

                                                                           During Hurlburt's initial interaction with Escott, Hurlburt was shaking and                                                                                                                                                                                                                                                                                                                        



he appeared highly emotional.                                                                                                                                                But Escott did not detect the smell of alcohol, and he                                                                                                                                                                                                                                                



 considered Hurlburt's emotional behavior to be appropriate to the situation.                                                                                                                                                                                                                                                                                                                                                                           At the   



 evidentiary hearing, Escott testified that he did not think that Hurlburt was impaired at                                                                                                                                                                                                                                                                                                                                                                                             



that time.   



                                                                           However, Escott believed (erroneously) that Alaska law required Hurlburt                                                                                                                                                                                                                                                                                              



to submit to a mandatory blood test based solely on the fact that Hurlburt had caused a                                                                                                                                                                                                                                                                                                                                                                                                    



 serious injury accident.                                                                                                               (The other officers at the scene also appeared to be under the                                                                                                                                                                                                                                                                          



 same mistaken impression.)                                                         



                                                                           This mistaken view of the law was likely based on an overly literal reading                                                                                                                                                                                                                                                                                                  



 of AS 28.35.031(g).                                                                                                This subsection of Alaska's "implied consent" law provides, in                                                                                                                                                                                                                                                                                                   



relevant part:   



                                                                          A person who operates or drives a motor vehicle in this state                                                                                                                                                                                                                                                       

                                                                           shall be considered to have given consent to a chemical test   

                                                                           or tests of the person's breath and blood for the purpose of                                                                                                                                                                                                                                                                    

                                                                           determining the alcoholic content of the person's breath and                                                                                                                                                                                                                                                            

                                                                          blood and shall be considered to have given consent to a                                                                                                                                                                                                                                                                             

                                                                           chemical test or tests of the person's blood and urine for the                                                                                                                                                                                                                                                             

                                                                          purpose of determining the presence of controlled substances                                                                                                                                                                                                                      

                                                                           in the person's blood and urine if the person is involved in a                                                                                                                                                                                                                                                                        

                                                                          motor vehicle accident that causes death or serious physical                                                                                                                                                                                                                                  

                                                                           injury to another person.                                                                                                                2  



                                                                                                                                                                                                                                                                                                                                                                                                                                                                               

In  State  v.  Blank,  however,  the  Alaska  Supreme  Court  held  that  it  would  be  



                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

unconstitutional to require a defendant to submit to a chemical test based only on the fact  



                   2                 AS 28.35.031(g) ("The test or tests may be administered at the direction of a law                                                                                                                                                                                                                                                                                                                                             



 enforcement officer who has probable cause to believe that the person was operating or                                                                         

driving a motor vehicle in this state that was involved in an accident causing death or serious   

physical injury to another person.").  



                                                                                                                                                                                                                                   - 4 -                                                                                                                                                                                                                        2601
  


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

that the defendant caused a serious injury accident.                                                           3  Instead, three other requirements  



must also be met: (1) there must be probable cause to arrest the defendant for driving                                                                                      



under the influence - although the arrest need not be contemporaneous; (2) there must                                                                                            



be case-specific exigent circumstances that preclude the police from timely applying for                                                                                              



                                                                                                          4  

                                                                                                                                                                                      

and   obtaining   a   warrant   for  the   chemical   test;                                                   and  (3)  the  chemical  test  must  be  



                                                                                5  

                                                             

performed in a "reasonable manner." 



                                                                                                                                                                               

                             The constitutional principles the Alaska Supreme Court relied on in Blank  



                                                                                                                                                                              

were  established in  Schmerber v. California, a 1966 decision by the United States  



                                   6  

                                                                                                                                                                            

Supreme Court.                           More recent United States Supreme Court decisions have further  



                                                                                                                                                                  

restricted the circumstances under which the police can lawfully obtain a warrantless  



                                                                                                                                                                            

blood test. In Missouri v. McNeely, the Court held that the natural dissipation of alcohol  



                                                                                                                                                                       

or controlled substances in a person's system did not create a per se  exigency justifying  



                                                       7  

                                                                                                                                                                                   

a  warrantless  blood  test.                                 And  in  Birchfield  v.  North  Dakota,  the  Court  held  that  



                                                                                                                                                                                      

warrantless breath tests, but not warrantless blood tests, could be administered under the  



                                                                                                                                       8  

                                                                                                                                           

search incident to arrest exception to the warrant requirement. 



       3      See State v. Blank, 90 P.3d 156, 160-62 (Alaska 2004); see also Blank v. State, 3 P.3d  



359, 369-370 (Alaska App. 2000).  



       4      Id.   



       5      Id.  



       6      See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).  



       7      See  Missouri v. McNeely , 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013).  



       8      See  Birchfield v. North Dakota, __ U.S. __, 136 S.Ct. 2160, 2185, 195 L.Ed.2d 560  



(2016) ("Because breath  tests  are significantly  less intrusive than blood tests and in most  

cases amply  serve law enforcement interests, we conclude that a breath test, but not a blood  

test, may be administered as a search incident to a lawful arrest for drunk driving.").  



                                                                                        - 5 -                                                                                  2601
  


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

                    The Alaska Supreme Court issued Blank in 2004. However, the legislature  

                                                                                                                     



has never acted to modify the statutory language of AS 28.35.031(g) to reflect the  

                                                                                                                                



constitutional limitations recognized in Blank. As a result, the burden falls on the police  

                                                                                                                            



to be aware of those limitations on their authority, notwithstanding the literal language  

                                                                                                                       



of the implied consent statute.  

                                                 



                    Here,  the  record  shows  that  Sergeant  Escott  was  not  aware  of  the  

                                                                                                                               



constitutional requirements for obtaining a warrantless blood test.  Escott therefore told  

                                                                                                                               



Hurlburt that he would be required to submit to a mandatory blood test as part of the  

                                                                                                                                



investigation into the cause of the accident.  In response, Hurlburt expressed concern  

                                                                                                                         



about what the blood test might show, and he admitted to Escott that he had smoked  

                                                                                                                         



marijuana five days earlier and that he had tried methamphetamine "for the first time"  



four days earlier.  Hurlburt denied taking any drugs or being under the influence at the  

                                                                                                                                



time of the accident.  

                  



                    Based, in part, on Hurlburt's admission to recent illegal drug use, Sergeant  

                                                                                                                        



Escott made the decision to administer field sobriety tests to Hurlburt.   Escott later  

                                                                                                                              



testified at an evidentiary hearing that he made the decision to administer field sobriety  

                                                                                                                         



tests based on the "totality of circumstances" known to him, which included (1) the  

                                                                                                                                



suspicious nature of the accident, (2) an earlier comment by Trooper Fowler to Escott  

                                                                                                                           



that Hurlburt was likely "good for something," and (3) Hurlburt's statements about his  

                                                                                                                                



prior illegal drug use.  

                                   



                    Trooper  Fowler's  comment  to  Escott  about  Hurlburt  being  "good  for  

                                                                                                                                



something" occurred relatively early in the investigation.  While Sergeant Escott was  

                                                                                                                               



busy coordinating the investigation and the medical response, Trooper Fowler was able  

                                                                                                                               



to independentlyobserveHurlburt'sactionsanddemeanor. Basedon thoseobservations,  

                                                                                                                 



Trooper Fowler believed that Hurlburt was likely under the influence of a controlled  

                                                                                                                     



substance, probably a stimulant:  

                                                   



                                                              - 6 -                                                         2601
  


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

                    And while I was watching him it - he seemed to not be able  

                                                                                                          

                    to  stand  still.        He  was  pacing  back  and  forth.                    He  was  

                                                                                                          

                    swinging his arms. His movements - he - he was touching  

                                                                                                   

                    his face.  Seemed to be continually doing this repetitive type  

                                                                                                          

                    behavior.  He was wringing his hands.  He appeared to be  

                                                                                                             

                    very  nervous  and  -  and  his  movements  were  -  were  

                                                                                                        

                    exaggerated in nature and they seemed to be without stop.  

                                                                                                       



Trooper Fowler attempted to communicate his suspicion about Hurlburt's impairment  

                                                                                                                   



by telling Sergeant Escott that Hurlburt "look[ed] like he'd be good for something."  

                                                                                                               



                    At the evidentiary hearing, Trooper Fowler testified that he gestured to  

                                                                                                                   



Hurlburt when he made the comment "good for something," and his intent was to draw  

                                                                                                                             



Escott's attention to Hurlburt's odd behavior and to alert Escott to the need for further  

                                                                                                                          



investigation of Hurlburt's suspected impairment.  

                                                                              



                     Sergeant Escott admitted, however, that he did not initially ascribe any  

                                                                                                                               



significance to Trooper Fowler's comment.  At the evidentiary hearing, Escott testified  

                                                                                                                        



that the comment did not give him "any pause or concern" when it was made, and did  

                                                



not make Escott revise his earlier impression that Hurlburt was not impaired. However,  

                                                                                                                      



he also testified that, after Hurlburt admitted to using methamphetamine, everything  

                                                                                                                    



started to "add up in [Escott's] mind" and the need for field sobriety tests became clear.  

                                                                                                                                      



                    Hurlburt failed the field sobriety tests, and was then arrested for driving  

                                                                                                                         



under the influence.  Following the arrest, Escott applied for a search warrant to test  

                                                                                                                               



Hurlburt's blood for controlled substances.  

                                                                     



                    However, when Escott presented his search warrant application to the on- 

                                                                                                                                



call Anchorage magistrate judge, the magistrate judge told Escott - erroneously - that  

                                                                                                                               



there  was  no  need  for  a  warrant  because  the  police  already  had  the  authority  to  

                                                                                                                                 



administer a warrantless blood test to Hurlburt under AS 28.35.031(g).  Based on this  

                                                                                                                               



erroneous  advice,  Escott  transported  Hurlburt  to  the  hospital,  where  a  nurse  drew  

                                                                                                                            



                                                              - 7 -                                                         2601
  


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

Hurlburt's blood.               The nurse later testified that Hurlburt had fresh needle marks on his                                            



arm.   The blood test revealed significant amounts of methamphetamine in Hurlburt's                                                



             9  

system.                                                                                                                                           

                  At trial,  the State's expert testified that the level of methamphetamine in  



                                                                                                              

Hurlburt's system was inconsistent with his claim that he used methamphetamine "for  



                                                        

the first time" four days earlier.  



                                                                                                                                                

                       Prior to trial, Hurlburt's defense attorney moved to suppress the blood test  



                                                                                                                       

results on three separate grounds.  The defense attorney argued first that Hurlburt was  



                                                                                                                             

unlawfully "seized" when Sergeant Escott erroneously told him that he would have to  



                                                                                                                                                

submit to a mandatory blood test, and he asserted that the blood test results (and his  



                                                                                                                                              

statements to Escott) should be suppressed as the fruit of this unlawful seizure.  The  



                                                                                                                                        

defenseattorneyargued next that Sergeant Escottlacked reasonable suspicion to conduct  



                                                                                                                                                  

the field sobriety tests because Sergeant Escott did not personally observe any signs of  



                                                                                                                                              

impairment, and he asserted that the blood test results should be suppressed as the fruit  



                                                                                                                                            

of that unlawful search.  Lastly, the defense attorney argued that the warrantless blood  



                                                                                                                                              

test was itself unconstitutional because there was clearly time to obtain a warrant -even  



                                                                                                   

though the magistrate judge erroneously refused to issue one.  



                                                                                                                                          

                       The superior court rejected all three grounds for suppression and denied  



                                                                          

Hurlburt's motion to suppress in a written order.  



                                                                                                                                                  

                       Hurlburt's case then went to trial. At trial, the State relied on the results of  



                                                                                                                                    

the blood test, Trooper Fowler's observations of Hurlburt's erratic behavior, Hurlburt's  



                                                                                                                                          

inability to pass the field sobriety tests, and the nurse's observations of fresh needle  



                                                                                                                                   

tracks on Hurlburt's arm.  The State also presented expert testimony from mechanics  



                                                                                                                                                

who had examined Hurlburt's car and concluded that the accident was not caused by any  



                                                                                

mechanical failures, as Hurlburt had claimed.  



      9     The blood test also revealed the presence of inactive marijuana metabolites.  



                                                                      - 8 -                                                                2601
  


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

                                  Hurlburt's defense was that he was sober at the time of the accident, but that                                                                                                      



he had orally ingested methamphetamine after the accident happened in an ill-conceived                                                                                                        



attempt to keep the police from discovering the methamphetamine in his car.                                                                                                                              



                                   The jury rejected this defense and convicted Hurlburt of driving under the                                                                                                          



influence and two counts of first-degree assault (one count for each victim) for recklessly                                                                                                           



causing serious physical injury by means of a dangerous instrument.                                                                                                               As a third felony            



offender, Hurlburt faced a presumptive range of 15 to 20 years on each first-degree                                                                                                              



                                                10  

assault conviction.                                                                                                                                                                                                      

                                                       At sentencing, the trial court imposed a composite sentence of 19  



                                                           

years and 9 months to serve.  



                                                                  

                                   This appeal followed.  



                                                                         

                 Hurlburt's claims on appeal  



                                                                                                                                                                                                                  

                                   Onappeal, Hurlburt renews his claimthat hewas "unlawfully seized"when  



                                                                                                                                                                                                                                  

Sergeant Escott erroneously told him that he was required to submit to a blood test.  



                                                                                                                                                                                                                       

Hurlburt also renews his claim that Escott lacked reasonable suspicion to conduct the  



                                                                                                                         11  

                                                                                                         

field sobriety tests that led to Hurlburt's arrest.                                                                                                                                                                   

                                                                                                                                We find no merit to either claim.  



                                                                                                                                                                                                                       

                                  As  the  State  correctly  points  out,  Hurlburt  was  not  subjected  to  an  



                                                                                                                                                                                                                          

"unlawful seizure" when Sergeant Escott erroneously told him that he would have to  



                                                                                                                                                                                                              

submit to a blood test because Hurlburt was already "seized" for purposes of the Fourth  



                                                                                                                                                                       12  

                                                                                                                                                                                                                            

Amendment long before Escott made this erroneous statement.                                                                                                                    As the driver of a  



                                                                                                                                                                                                            

motor vehicle who had just caused a serious accident that had resulted in serious injuries  



         10      See former AS 12.55.125(c)(4) (pre-2016 version).  



         11      Hurlburt does not renew his claim that the warrantless blood test was independently   



unconstitutional.  



         12      Pooley v. State, 705 P.2d 1293, 1305 (Alaska App. 1985).  



                                                                                                         - 9 -                                                                                                  2601
  


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

to   two   pedestrians,   Hurlburt   was   not   free   to   leave   the   accident   scene   until   he   had  



complied with his obligations to provide various information mandated by law, and the                                                                                                                                                                                                                                                                                    



police had completed that portion of the investigation.                                                                                                                                                                                   The testimony at the evidentiary                                                            



hearing   makes   this   clear.     Sergeant   Escott  and  Trooper   Fowler   both   testified   that,  



although Hurlburt's movements were not closely supervised, they were both watching                                                                                                                                                                                                                                                            



Hurlburt to make sure that he did not leave. Contrary to Hurlburt's contention, Sergeant                                                                                                                                                                                                                                                         



Escott's statement about the mandatory blood test did not result in an unlawful seizure,                                                                                                                                                                                                                                                             



instead it took place within an ongoing investigative stop in which Hurlburt had already                                                                                                                                                                                                                                                               



been lawfully seized.                                                                         



                                                          Nor is there anything to suggest that Sergeant Escott's erroneous statement                                                                                                                                                                                                        



about the mandatory blood test unlawfully extended this investigative stop.                                                                                                                                                                                                                                                          Indeed, the   



recording of the investigative stop indicates that the police were still collecting basic                                                                                                                                                                                                                                                                      



information from Escott - such as the identity of the legal owner of the car and how to                                                                                                                                                                                                                                                                                       



reach the owner - at the time this statement was made.                                                                                                                                                                                               



                                                          There is likewise no reason to believe that the investigative stop in this case                                                                                                                                                                                                                           



would have ended without any further investigation of Hurlburt's suspected impairment.                                                                                                                                                                                                                                                                                                     



Indeed, in many respects, Hurlburt's case closely resembles a Fifth Circuit case,                                                                                                                                                                                                                                                                       United  



Statesv. Ragsdale                                                             ,thatis discussed approvingly in Professor LaFave's                                                                                                                                                                           treatiseon                                   Fourth  

Amendment search and seizure.                                                                                                              13  



                                                                                                                                                                                                                                                                                                                                                    

                                                          Like the present case, Ragsdale  involved two law enforcement officers  



                                                                                                                                                                                                                                                                                         14  

                                                                                                                                                                                                                                                                                                                                                     

working closely together as a team during an investigative stop.                                                                                                                                                                                                                                     One of the officers  



                                                                                                                                                                                                                                                                                                                                                                

noticed a gun on the floor of the defendant's vehicle and alerted (or, rather, tried to alert)  



               13            See United States v. Ragsdale                                                                                              , 470 F.2d 24, 30 (5th Cir. 1972); see also, 2 Wayne R.  



LaFave, Search and Seizure  3.5(c), at 356 (5th ed. 2012) (discussing Ragsdale).  



               14            Ragsdale, 470 F.2d at 25-26.  



                                                                                                                                                                              -  10 -                                                                                                                                                                       2601
  


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

                                                 15  

the other officer to the gun.                         The other officer subsequently opened the door of the                                      



                                             16  

vehicle and found the gun.                                                                                                                        

                                                 It later turned out, however, that the officer who opened the  



                                                                                                                 17  

                                                                                                                                          

door  had  not  heard  the  first  officer's  comment  about  the  gun.                                                The  Fifth  Circuit  



                                                                                                                                           

nevertheless upheld the search as lawful because it concluded that if the second officer  



                                                                                                                                              

"had not commenced the search when he did, [the first officer] would surely have  



                                                                                                                                               

commanded  it,  or  would  have  put  Ragsdale  in  [the  second  officer's]  custody  and  



                                        18  

                                                                                                                                       

performed  it himself."                       In  his discussion  of Ragsdale, Professor  LaFave cautions  



                                                                                                                                                   19  

                                                                                                                                                        

against overuseof this "inevitablediscovery" or "inevitable communication" rationale. 



                                                                                                                                                 

But he also concludes that "given the rather unusual facts presented in Ragsdale, the  



                                                                              20  

                                                                                   

above result is not open to serious question." 



                                                                                                                                                        

                       We come to a similar conclusion based on the unusual facts presented here.  



                                                                                                                                             

That is, we conclude that had Sergeant Escott not conducted the field sobriety tests when  



                                                                                                                                                 

he  did,  Trooper  Fowler  would  have  realized  that  his  attempt  to  communicate  his  



                                                                                                                                              

suspicions about Hurlburt's impairment to Escott had failed, and Fowler would have  



                                                                                                                                 

either made clear to Escott that field sobriety tests were required or he would have  



                                                                                                                                                

conducted the field sobriety tests himself. In either case, however, the investigative stop  



                                                        

would not have been over until further investigation of Hurlburt's level of impairment  



                   

occurred.  



      15   Id. at 26.  



      16   Id.  



      17   Id.  



      18   Id. at 30 (concluding that the search of the vehicle "invaded no Fourth Amendment   



protection which Ragsdale could claim").  



      19    2 Wayne R. LaFave, Search and Seizure  3.5(c), at 356-58 (5th ed. 2012).  



      20   Id. at 356.  



                                                                     -  11 -                                                                2601
  


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

                        For somewhat similar reasons, we find no merit to Hurlburt's challenge to                                                     



the reasonable suspicion ruling in this case.                                      Reasonable suspicion to conduct field                         



sobriety   tests   exists   when   an   officer   has  a   "particularized   and   objective   basis"   for  



suspecting   that   a   motorist   is   under   the   influence   of   either   alcohol   or   a   controlled  



                   21  

                                                                                                                                           

substance.              Here, Escott testified that he made the decision to conduct field sobriety  



                                                                                                                                         

tests based on (1) the suspicious nature of the accident, (2) Trooper Fowler's statement  



                                                                                                                                        

about Hurlburt being "good for something," and (3) Hurlburt's admission regarding  



                                           

recent illegal drug use.  



                                                                                                                                                    

                        On appeal, Hurlburt contends that Trooper Fowler's comment "good for  



                                                                                                                                                    

something" could not be considered as part of the totality of circumstances justifying the  



                                                                                                                                                   

field sobriety tests.   We disagree.   Although the record indicates that Escott did not  



                                                                                                                                              

immediately understand the meaning of this comment when it was first made, the record  



                                                                                                                                                      

also suggests that Escott started to appreciate its significance after Hurlburt admitted to  



                                                                                                                                                  

his recent drug  use.                   Moreover, if nothing else, Escott was aware that Fowler had  



                                                                                                                                                    

significant suspicions about Hurlburt that would need to be followed up on before the  



                                                                                                                                         

investigation could be considered complete.  Given this, we conclude that the existence  



                                                                                                                                      

of this communication (however poorly understood) could nevertheless be considered  



                                                                                                                                                    

as part of the "totality of circumstances adding up in [Escott's] head" that led to the  



                                                                        

decision to conduct field sobriety tests.  



                                                                                                                                                     

                        We note, however, that this is a different rationale than the one relied on by  



                                                                                                                                                     

the  State.           On  appeal,  the  State  contends  that  Trooper  Fowler's  observations  of  



                                                                                                                                 

Hurlburt's impairment could be directly imputed to Escott "under the long-standing  



                                                                                                                                      

principle that information in the possession ofone lawenforcement officer is attributable  



      21    See Galimba v. Anchorage, 19 P.3d 609, 612 (Alaska App. 2001);                                                      McCormick v.  



Anchorage , 999 P.2d 155, 160 (Alaska App. 2000).  



                                                                       -  12 -                                                                 2601
  


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

to another."  In support of this purported "long-standing principle," the State cites our                             



                                           22  

decision in        State v. Prater        .                                                                                            

                                               According to the State, Prater stands for the principle that  



                                                                                                                       

any relevant information in one law enforcement officer's possession is automatically  



                                                                                                                               

imputed  to  the  investigating  officer,  even  if  that  information  was  never  actually  



                                                                       

communicated to the investigating officer.  



                                                                                                                                       

                      But our holding in Prater is much narrower than the State recognizes. The  



                                                                                                                                   

question presented in Prater was whether a patrol officer who stopped a suspected drunk  



                                                                                                                                        

driver based on a police bulletin had to be personally aware of the factual basis for the  



                                                                                                                                       

police bulletin or whether it was sufficient that the dispatcher who issued the bulletin had  



                                                                                                    23  

                                                                                                                                        

the necessary factual basis for the requested investigative stop.                                       In accordance with the  



                                                                                                                                         

United States Supreme Court's decision in  United States v. Hensley, we held that an  



                                                                                                                                       

investigative stop  made in  objective reliance on  a  police  bulletin  is justified  if the  



                                                                                                                                        

dispatcher  or  officer  who  initiated  the  bulletin  possessed  reasonable  suspicion  of  



                                                                      24  

                                                               

imminent public danger justifying the stop. 



                                                                                                          

                     Prater therefore stands for the basic legal principle that law enforcement  



                                                                                                                                       

officers who act at the directive or request of other law enforcement officers do not  



                                                                                                                         

violateadefendant's protected constitutional rights -providedthatthelawenforcement  



                                                                                                                                        

officer or agency issuing the directive or request has the requisite factual basis for the  



      22   State v. Prater, 958 P.2d 1110, 1111-12 (Alaska App. 1998).  



      23   Id.  



      24   Prater,  958  P.2d  at  1113  (internal  citations  omitted);  see  also  United  States  v.  



Hensley, 469 U.S. 221, 231 (1985) (holding that an investigative stop based on a wanted flyer  

                                                                                                                          

or  police  bulletin  should  be  upheld  if  (i)  the  officer  who  conducted  the  stop  acted  "in  

                                                               

objective reliance" on the flyer or bulletin, (ii) the officer who issued the flyer or bulletin  

                                                                                                                                 

possessed a reasonable suspicion justifying the stop, and (iii) the stop that in fact occurred  

was not significantly more intrusive than would have been permitted by the officer who  

                                                                                                                                      

issued the bulletin).  



                                                                 -  13 -                                                           2601
  


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

                            25  

requested action.               This widely accepted principle of law is sometimes referred to as the                                      

"vertical" application of the collective knowledge doctrine,26                                                                                   

                                                                                                     to distinguish it from the  



                                                                                                                                 

much  broader  (and  more  controversial)  "horizontal"  collective  knowledge  doctrine  



                                                 27  

                                                      

                                         

alluded to in the State's brief. 



                      Under thehorizontal applicationofthecollectiveknowledgedoctrine, some  

                                                                                                                                       



courtswill automaticallyimputeknowledgefromonelawenforcement officertoanother,  

                                                                                                                                   

even in the absence of any direct communication or request for action.28  

                                                                                                                                        

                                                                                                                    Courts that have  



                                                                                                                                       

adopted  this  more  expansive  approach  to  the  collective  knowledge  doctrine  have  



                                                                                                                                     

generally done so under thetheory that a"presumption ofcommunication"among fellow  



                                                                                                                                         

officers working closely together "often will reflect what has actually taken place" and  



      25   Cf. Hensley        , 469 U.S. at 231 (describing this rule as based on common sense because  



it minimizes the volume of information that must be transmitted and facilitates prompt and   

efficient police action).  



      26   In Prater, we referred to the collective knowledge doctrine as the "fellow officer" or  



"police team" rule.  See Prater, 958 P.2d at 1111.  



      27   For  a  comprehensive  overview  of  the  vertical  and  horizontal  applications  of  the  

                                                                                                                                          

collective  knowledge  doctrine,  see  Derik  T.  Fettig,  Who  Knew  What  When?  A  Critical  

Analysis of the Expanding Collective Knowledge Doctrine,  82 UMKC L. Rev. 663, 672  

(2014); see also Simon Stern, Constructive Knowledge, Probable Cause, and Administrative  

Decisionmaking , 82 Notre Dame L. Rev. 1085, 1110-11 (2007) (distinguishing between  

                                                                                                         

collective knowledge doctrines that rely on some type of direct communication between the  

                                                                                          

officers and criticizing a "no communication" approach that views law enforcement officers  

                                        

working together as though they are acting as "a single organism" with a collective mind).  



      28   4 Wayne R.   LaFave,  Search and Seizure   9.5(j), at 822-23 (5th ed. 2012) (The  

                                                            

Hensley  situation, where action was requested but the underlying factual basis was  not  

                                                                                                                                          

communicated, must be distinguished from the situation in which neither the request nor the  

                                                                     

factual basis is communicated, but the officer making the Terry stop later relies upon the fact  

                                                                                                    

that  a  fellow  officer  possessed  the  requisite  reasonable  suspicion  at  the  time  the  stop  

            

occurred.").  



                                                                  -  14 -                                                             2601
  


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

that "communication among officers during the exigencies of a stop ... may often be                                                                            



                                          29  

subtle and nonverbal."                          



                                                                                                                                                

                         This expansive approach to the collective knowledge doctrine has been  



                                                                                                                                                             

criticized by other courts and commentators, particularly when it leads to a finding of  



                                                                                                                                                            

reasonable  suspicion  or  probable  cause  only  by  "aggregat[ing]  bits  and  pieces  of  



                                                                    30  

                                                                                                                                                       

information from... myriad officers."                                   Neither this Court nor the Alaska Supreme Court  



                                                                                                                                                          

has directly addressed to what extent Alaska law has adopted, or should adopt, this  



                                                                                                   31  

                                                                                                                                                          

broader version of the collective knowledge doctrine.                                                   Nor do we need to resolve that  



                                                                                                                                                  

issue here because we conclude that reasonable suspicion to conduct the field sobriety  



                                                                                                                                           

tests existed, even without Trooper Fowler's observations of Hurlburt's impairment  



                                                                 

being imputed to Sergeant Escott.  



             Conclusion  



                                                                                                

                         The judgment of the superior court is AFFIRMED.  



      29    4 Wayne R. LaFave, Search and Seizure  9.5(j), at 823.  



      30    4 Wayne R. LaFave,                     Search and Seizure   9.5(j), at 823, 823 n.571 & 572 (5th ed.  



2012); see also United States v. Massenburg                                    , 654 F.3d 480, 495 (4th Cir. 2011) (criticizing  

the horizontal expansion of the collective knowledge doctrine as undermining the purpose  

                                                                                                     

of the exclusionary rule); State v. Rahier, 849 N.W.2d 212, 217 (N.D. 2014) (noting the  

danger that unjustified police action will be taken "in the hopes it is later validated by tallying   

the knowledge of every officer and agency involved in the case").     



      31    See, e.g., Newsom v. State, 199 P.3d 1181, 1184-5 (Alaska App. 2009) (noting the  

                              

narrowness  of  the  Prater  holding  and  declining  to  apply  an  expanded  "community  of  

                                                                                                                                                             

knowledge" doctrine without better briefing on that issue).  



                                                                          -  15 -                                                                     2601
  

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