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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Edwin Saltz v. State of Alaska, Division of Motor Vehicles (12/23/2005) sp-5972

Edwin Saltz v. State of Alaska, Division of Motor Vehicles (12/23/2005) sp-5972

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

EDWIN SALTZ, )
) Supreme Court No. S- 11676
Appellant, )
) Superior Court No.
v. ) 3KN-03-807 CI
)
STATE OF ALASKA, ) O P I N I O N
DEPARTMENT OF )
ADMINISTRATION, DIVISION ) [No. 5972 - December 23, 2005]
OF MOTOR VEHICLES, )
)
Appellee. )
)
          Appeal  from the Superior Court of the  State
          of  Alaska,  Third Judicial District,  Kenai,
          Charles T. Huguelet, Judge.

          Appearances:   Peter  F. Mysing,  Kenai,  for
          Appellant.   Judith  A.  Crowell,   Assistant
          Attorney  General, Anchorage,  and  Scott  J.
          Nordstrand, Acting Attorney General,  Juneau,
          for Appellee.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          BRYNER, Chief Justice.


I.   INTRODUCTION
          The  Alaska  Division of Motor Vehicles  revoked  Edwin
Saltzs  drivers  license after he was arrested for  driving  away
from  a  bar while intoxicated.  Saltz challenges the departments
finding  that the officer had reasonable suspicion  to  stop  his
truck,  arguing  that his truck did not match the description  of
the truck provided by a caller informing the troopers office that
an  individual  was leaving the bar intoxicated.  Because  Saltzs
truck  nearly matched the description provided by the caller  and
was  in the exact location the caller stated it would be, and the
time  between the call and the stop was very short, we hold that,
based  on  the totality of the circumstances, the trooper  had  a
reasonable  suspicion  to  stop Saltzs  truck.   Accordingly,  we
affirm.
II.  FACTS AND PROCEEDINGS
          On   April  13,  2003,  Alaska  State  Trooper   Darrel
Christensen  was  working the graveyard  shift  at  the  Soldotna
troopers office.  At 2:05 a.m., a Soldotna resident made a  REDDI
call  to  the  troopers  to report that an intoxicated  male  was
leaving the Maverick Bar in a blue and gray Ford F-350.1  Trooper
Christensen  received  the  REDDI  report,  including  the  truck
description and its location, from the dispatcher.
          Trooper  Christensen immediately left the  station  and
drove towards the Maverick Bar.  Because the Soldotna station  is
just  around  the corner from the Maverick Bar, it  took  Trooper
Christensen  approximately one minute to arrive at the  bar.   As
Trooper Christensen approached the bar in his patrol car, a large
Ford  truck  driven  by Edwin Saltz pulled out  of  the  Maverick
parking  lot right in front of Trooper Christensen and  onto  the
highway.  Believing that the truck matched the description of the
REDDI  call, Trooper Christensen followed the truck for  a  short
distance.  After making a turn, Saltz pulled into another parking
lot.
          Trooper Christensen noticed that the truck did not have
mud  flaps.   Believing  that Ford F-350s  are  required  by  the
vehicle  code  to  have mud flaps because of their  ride  height,
Trooper  Christensen followed Saltzs truck into the  parking  lot
and  turned  on  his overhead lights to conduct a  traffic  stop.
Trooper  Christensen  smelled  a  strong  alcohol  odor  when  he
approached Saltz, and noticed that Saltz slurred when  he  spoke,
had bloodshot, watery eyes, and swayed.
          Saltz told Trooper Christensen that he had been at  the
Maverick  Bar  drinking.   Trooper  Christensen  asked  Saltz  to
perform  some field sobriety tests, but Saltz argued with Trooper
Christensen  and  continually  refused  to  follow  instructions.
Saltz  eventually performed one of the sobriety tests and failed.
Trooper  Christensen arrested him for driving under the influence
of  alcohol.   A breath test indicated that Saltzs blood  alcohol
content  was  almost twice the legal limit for driving.   Trooper
Christensen  gave  Saltz a Notice and Order  of  Revocation  form
which  explained  that Saltz failed an alcohol  breath  test  and
that,  under  Alaska law, the officer was required to  confiscate
Saltzs drivers license.
          Saltz  requested an administrative hearing in order  to
challenge  the  constitutionality of the stop of  his  truck.   A
division  hearing  officer held a hearing in September  2003  and
Trooper  Christensen  and Saltz testified.  Trooper  Christensens
testimony  matched his police report generated on  the  night  he
arrested Saltz.  On cross-examination Saltzs attorney revealed to
Trooper  Christensen that Saltz did not have a  Ford  F-350,  but
          rather owned a Ford F-250.  Trooper Christensen stated that this
information did not surprise him because the Ford F-250s and  the
350s  are the same body style but that the F-350 normally  has  a
higher suspension.  Saltzs attorney also revealed that the  truck
Trooper  Christensen pulled over was not blue and gray,  but  red
and gray.
          Saltz  argued before the hearing officer that the  stop
was  illegal  because his truck did not match the description  of
the  truck  in the REDDI report, because Trooper Christensen  did
not  observe  Saltz  driving  erratically,  and  because  Trooper
Christensen did not measure the height of Saltzs truck to see  if
it  in fact needed mud flaps.  Although the hearing officer noted
that Trooper Christensens photos showed a red and gray F-250, and
not   a  blue  and  gray  Ford  F-350,  she  found  that  Trooper
Christensen stopped Saltz because of the REDDI report and because
of  the  mud flap violation.  Based on the REDDI report, the  mud
flap  violation,  the  time  frame in which  Trooper  Christensen
contacted Saltz, and the seriousness of the offense, the  hearing
officer  concluded that Trooper Christensen had more than  enough
reasonable suspicion to stop Saltz.  She also found that  Trooper
Christensen had probable cause after making the stop  to  believe
that  Saltz  was driving under the influence because the  trooper
observed  slurred  speech,  alcohol  odor,  and  failure  of  the
sobriety  test.   Because Saltz had three prior  convictions  for
driving  under the influence, the hearing officer revoked  Saltzs
driving privileges for five years.
          Saltz appealed the decision to the superior court.  The
court  held  that  the  hearing officers  factual  findings  were
supported  by  substantial evidence that Trooper Christensen  was
justified in stopping Saltzs truck based on the REDDI call from a
local resident.  The court additionally held that, regardless  of
whether  Saltzs  truck exactly matched the REDDI report,  Trooper
Christensen  had probable cause to stop Saltzs truck  for  a  mud
flap   violation.   The  court  affirmed  the  hearing   officers
decision.
          Saltz appeals.
III. DISCUSSION
          We  review an administrative hearing officers  decision
to  revoke  an individuals drivers license independently  of  the
superior courts decision because the superior court acted  as  an
intermediate   court   of  appeal.2    The   court   reviews   an
administrative decision to revoke a drivers license to  determine
if  the  department misinterpreted the law, acted in an arbitrary
and capricious manner, or made a determination unsupported by the
evidence in the record.3  Finally, we review the hearing officers
factual findings under the substantial evidence test, determining
whether  the  findings  are  supported  by  such  evidence  as  a
reasonable mind might accept as adequate to support a conclusion.4
          Saltz argues that the hearing officer erred in revoking
his  license because Trooper Christensen did not conduct a lawful
investigatory  stop of Saltzs truck. Specifically,  Saltz  argues
that Trooper Christensens stop of his truck was not supported  by
a  reasonable suspicion because his truck did not match the truck
contained  in the REDDI report.  Because his truck is a  red  and
          gray Ford F-250, not a blue and gray Ford F-350 as reported by
the  REDDI caller, Saltz argues that Trooper Christensen  had  no
actual basis for believing that Mr. Saltzs vehicle, as opposed to
the vehicle described by the REDDI caller, was being driven by an
intoxicated person.
          In  Alaska,  an officer may make an investigatory  stop
only when there are specific and articulable facts which create a
reasonable  suspicion  that imminent  public  danger  exists,  or
serious harm to persons or property has recently occurred.5   The
term reasonable suspicion has been described as where there is  a
substantial possibility that conduct has occurred, is  occurring,
or  is  about  to  occur,6 and is based  on  a  totality  of  the
circumstances.7   We  have  held that  where  an  officer  has  a
reasonable  suspicion that a driver is operating a vehicle  while
intoxicated, a sufficient imminent public danger exists for which
an officer may conduct an investigatory stop.8  Additionally, the
court of appeals has held that an officer may rely on information
obtained from a REDDI report so long as there are some indicia of
reliability.9
          Saltz  is correct in his assertion that the truck color
and  model described in the REDDI report were different from  the
color  and  model of his truck.  But other factors considered  by
Trooper  Christensen at the time of the stop also  provided  some
indicia of reliability of the call.  First, the fact that  Saltzs
truck  was a Ford F-250 rather than a Ford F-350 is not by itself
consequential.  When confronted with evidence that  he  may  have
pulled  over  the  wrong  model  of  truck,  Trooper  Christensen
testified that he was [not] surprised a bit because F-250s and F-
350s  have the same body style . . . the only difference  is  the
350  has  a  little bit higher suspension.  In United  States  v.
Hurst,  the Sixth Circuit Court of Appeals upheld a vehicle  stop
where  a  caller identified a potential burglars car as  a  dark-
colored  [Ford] Thunderbird, even though the car stopped  in  the
same  vicinity shortly after the burglary was a dark blue Mercury
Cougar.10   The  court  noted  that the  defendants  car  roughly
match[ed]  the car described by the caller, and when  taken  with
all  of the other circumstances, created specific and articulable
facts   to  justify  the  investigatory  stop.11   Here,  Trooper
Christensens testimony indicated that he saw no major differences
between  F-250s  and F-350s and would not be surprised  to  learn
that   one   had  been  mistaken  for  the  other.   No  evidence
contradicted the troopers opinion, and other evidence supports  a
finding that he had a reasonable suspicion to stop Saltzs truck.
          The  fact  that Saltzs truck was red and  gray,  rather
than  blue and gray, also does not defeat a finding that  Trooper
Christensen  had a reasonable suspicion to stop  Saltz.   Trooper
Christensen stopped Saltzs truck just after 2 a.m. while  it  was
dark outside.  Trooper Christensen testified that the majority of
Saltzs truck was gray and that the gray color stands out when you
have overhead flashing lights.  Saltz confirmed that his truck is
gray, but also noted that it has a very large red . . . component
to the paint job.
          In  State v. DaEria, a man called the police after  two
men  attempted to break into his vehicle in front of his fiancees
          parents house, at 2:30 a.m., and fired shots at him when he tried
to  prevent the break-in.12  The victim reported that the two men
drove  away  in  a  greenish Toyota.13  The  Appellate  Court  of
Connecticut  upheld the investigatory stop of the defendants  car
even  though  he was actually driving a gray Toyota.   The  court
reasoned that given the less than optimal lighting conditions and
the  situation in which the victim noticed the car,  it  was  not
unreasonable  for the officer to infer that the victim  may  have
mistakenly identified the color of the car.14  Moreover, the court
attached  significant weight to the time of  night  the  car  was
stopped, the fact that the officer did not see any other cars  on
the  road between the time he received the call and when he  made
the  stop,  and the fact that the stop occurred just four  blocks
from  the house where the victim was staying within a short  time
after the victims call.15  The court held that the officer had  a
reasonable  suspicion  to stop the defendants  car,  taking  into
account the strength of those points of comparison [given by  the
caller]  which  do  match  up  and  whether  the  nature  of  the
descriptive factors which do not match is such that an  error  as
to them is not improbable.16
          Saltzs  case is analogous to DaEria, and we  find  that
cases  reasoning persuasive.  Trooper Christensen observed Saltzs
truck  within  one minute of receiving the REDDI report,  at  the
exact location the caller stated the truck would be  pulling  out
of the Maverick Bar.  Although he testified that there could have
been  a  blue  and  gray Ford F-350 nearby,  Trooper  Christensen
stated  that he highly doubt[ed] it given the time frame [in  the
middle  of  the  night] . . . [i]ts a Ford pickup, majority-color
gray,  and  it  was  within  a minute  of  the  report.   Trooper
Christensen  noted in his report that the stop occurred  at  2:07
a.m.  and  the lighting conditions were dark.  After  considering
all  of the evidence, including the REDDI report, the time  frame
in  which Saltz was contacted, and the description of his pickup,
the  hearing officer found that Trooper Christensen had more than
enough  reasonable  suspicion  to  stop  Saltz.   We  agree  that
although  the truck described in the REDDI report did  not  match
Saltzs  truck  exactly, based on a totality of the circumstances,
Trooper Christensen was reasonable in believing that Saltzs truck
was  the  one  identified by the caller, and  that  there  was  a
substantial possibility that Saltz was intoxicated.  Nothing more
was required to justify the stop.
          Saltz  argues  that  his case is analogous  to  Mix  v.
State,17   because  the  officer  in  Mix,  similar  to   Trooper
Christensen,  observed no erratic driving.   But  Saltz  misreads
Mix.  In that case, the court did not invalidate the stop due  to
the  officers  failure to observe erratic driving.   Rather,  the
court  found  the stop to be invalid because the officer  had  no
information  that  the anonymous caller was a citizen  informant,
the  state  did not present any evidence that the dispatcher  had
knowledge about the caller that could be imputed to the  officer,
and  it  was  not even clear whether the locate was based  on  an
anonymous tip at all.18  Although Trooper Christensen did not know
the REDDI callers name at the time he stopped Saltz, he was aware
that  a REDDI call was made.  Moreover, there is no question that
          the REDDI caller identified herself to the dispatcher, which can
be imputed to Trooper Christensen.19  Thus, Mix is inapplicable.
          Based  on the totality of the circumstances surrounding
the  stop,  then, the hearing officers findings are supported  by
substantial   evidence  in  the  record,  and  are  not   clearly
erroneous.20
IV.  CONCLUSION
          For  these  reasons,  we AFFIRM  the  hearing  officers
decision.
_______________________________
     1    REDDI stands for Report Every Drunk Driver Immediately.
This  is  a  hotline number that went into effect  on  the  Kenai
Peninsula  in  1984 that allows callers to report  drunk  drivers
without  providing personal information.  The  caller  need  only
provide  the time and location they observed the suspected  drunk
driver,  the  direction of travel, and the make,  color,  and  if
possible,  the license plate number of the vehicle. Effenbeck  v.
State, 700 P.2d 811, 812 n.1 (Alaska App. 1985).

     2    See Jager v. State, 537 P.2d 1100, 1106 (Alaska 1975).

     3     AS  28.15.166(m); accord Miller v. State, Dept of Pub.
Safety,  Div.  of Motor Vehicles, 761 P.2d 117, 118  n.2  (Alaska
1988).

     4     Borrego  v. State, Dept of Pub. Safety, 815 P.2d  360,
363 (Alaska 1991).

     5      Effenbeck,  700  P.2d  at  812  (internal   citations
omitted);  see  also Coleman v. State, 553 P.2d  40,  46  (Alaska
1976).

     6    State v. Moran, 667 P.2d 734, 735-36 (Alaska App. 1983)
(citing  W.  LaFave, 3 Search and Seizure  9.3, at 65-66  (1978))
(emphasis in original).

     7    United States v. Cortez, 449 U.S. 411, 417-18 (1981).

     8    See State v. G.B., 769 P.2d 452, 455 (Alaska 1989); see
also Ebona v. State, 577 P.2d 698, 701 (Alaska 1978).

     9    See Effenbeck, 700 P.2d at 812.

     10    228 F.3d 751, 755-57 (6th Cir. 2000).

     11    Id. at 757.

     12    721 A.2d 539, 543 (Conn. App. 1998).

     13    Id.

     14    Id. at 546.

     15    Id. at 547.

     16    Id. at 546 (quoting State v. Rodriguez, 684 A.2d 1165,
1171 n.18 (Conn. 1996)) (emphasis added).

     17    893 P.2d 1270 (Alaska App. 1995).

     18    Id. at 1272-73.

     19     See State v. Prater, 958 P.2d 1110, 1113 (Alaska App.
1998).

     20      Saltz also argues that Trooper Christensen  did  not
have  probable  cause  to pull over his  truck  for  a  mud  flap
violation.    Because  we  hold  that  Trooper  Christensen   had
reasonable suspicion to believe that Saltzs truck was  the  truck
described in the REDDI report, it is unnecessary for us to decide
whether Trooper Christensen was justified in stopping Saltz for a
mud flap violation.