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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Miller (05/08/2009) sp-6369

State v. Miller (05/08/2009) sp-6369

     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

STATE OF ALASKA, )
) Supreme Court No. S- 12483
Petitioner, )
) Court of Appeals No. A-9484
v. ) District Court No. 1JU-05-872 CR )
MICHAEL MILLER, ) O P I N I O N
)
Respondent. ) No. 6369 - May 8, 2009
)
          Petition  for  Hearing  from  the  Court   of
          Appeals  of  the State of Alaska,  on  appeal
          from  the  District Court  of  the  State  of
          Alaska,   First  Judicial  District,  Juneau,
          Keith B. Levy, Judge.

          Appearances:  Tamara E. de  Lucia,  Assistant
          Attorney  General, Anchorage,  and  Talis  J.
          Colberg,   Attorney  General,   Juneau,   for
          Petitioner.   Douglas  O.  Moody,   Assistant
          Public  Defender and Quinlan Steiner,  Public
          Defender, Anchorage, for Respondent.

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

          CARPENETI, Justice.
          MATTHEWS,  Justice,  with whom,  FABE,  Chief  Justice,
joins, dissenting.

I.   INTRODUCTION
          I.   A police officer, responding to a 911 call reporting a
domestic  dispute  in the parking lot of a  bar  late  at  night,
stopped  a  car  leaving  the lot that  matched  the  description
provided  by  the  911 caller.  The driver, subsequently  charged
with  failure  to take a breath test, moved to suppress  evidence
discovered  as a result of the investigative stop.  The  district
court denied the motion to suppress and the driver was convicted.
The  court  of  appeals  reversed.  Because  the  district  court
properly found that the officer had an objective basis to believe
that  a  crime had occurred or that one was imminent, we  reverse
the  decision of the court of appeals and reinstate  the  drivers
conviction.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          On  July 13, 2005, at approximately 12:30 a.m., a woman
called  emergency  911  to report that a man  and  a  woman  were
fighting in the parking lot of Henrys Bar in Juneau.  The  caller
clarified  her statement that the couple was fighting  by  saying
not like physical punching, but like yelling, I mean fighting and
pointing,  and like waving of arms.  She indicated that  the  man
and  woman were a couple or possibly siblings.  The caller stated
that the man was approximately a foot and a half taller than  the
woman,  and  further described each individual.  The caller  also
indicated that the couple was standing in front of a white Subaru
WRX with its doors open.
          After  receiving  the  911 call the  police  dispatcher
contacted  Officer  Keith Mickelson who  was  on  patrol  in  the
immediate  area.   The dispatcher reported to  Officer  Mickelson
that there was a verbal 10-16  police code for a domestic dispute
occurring  in  the  parking  lot of  Henrys  Bar,  and  that  the
complaint  involved  a  man and a woman arguing  beside  a  white
Subaru.
          Officer  Mickelson approached the parking  lot  in  his
vehicle  within  moments of receiving the call and  observed  the
white  Subaru  parked in front of Henrys; he  noted  that  people
were getting into the Subaru.  As he entered the parking lot  the
Subaru  was already driving across the lot toward him.   The  two
vehicles passed within eight to ten feet of each other.   Officer
Mickelson  could see the driver, and could tell that  there  were
two  other  individuals in the vehicle, but could  not  determine
whether  any  occupants of the car had suffered any  injuries  or
whether there was other evidence of violence.
          The  officer brought his vehicle behind the Subaru  and
turned  his police lights on when the Subaru was stopped  at  the
stop  line  at the exit from the parking lot.  Officer  Mickelson
approached the vehicle and spoke with the driver, Michael Miller,
through the Subarus open window.  Officer Mickelson asked  Miller
what  was going on with the argument at Henrys Bar.  When Officer
Mickelson  looked at the two female passengers they  shook  their
heads  in a gesture that the officer interpreted as an indication
that  everything  was  fine.  Officer Mickelson,  having  noticed
Millers bloodshot, watery eyes, and having detected the smell  of
alcohol,  turned  his  attention  back  to  Miller.   Miller  was
ultimately arrested and charged with driving under the influence,
refusal  to submit to a chemical test, and two counts of reckless
endangerment.
     B.   Proceedings
          Miller filed a motion to suppress all evidence obtained
as  a  result  of Officer Mickelsons investigative stop,  arguing
that  the  officer lacked the reasonable suspicion  necessary  to
justify the stop.  The district court held an evidentiary hearing
on  the motion in September 2005.  Officer Mickelson was the only
witness  to testify at the hearing.  Recordings of the  911  call
and  the  communication between the police dispatcher and Officer
Mickelson were also played at the hearing.
          At  the conclusion of the hearing, District Court Judge
Keith  B.  Levy  made  oral findings that Officer  Mickelson  had
reasonable suspicion sufficient to justify the investigative stop
and,  accordingly, denied Millers motion to suppress.  Judge Levy
expanded  on his findings and conclusions in a written  decision.
He  found  that [a]lthough Officer Mickelson did not observe  the
dispute  personally,  the information he had  was  sufficient  to
establish  a  substantial possibility that  a  domestic  violence
assault  was  occurring, had occurred, or  was  about  to  occur.
Judge  Levy  also  found  that  the potential  harm  of  domestic
violence,   when  weighed  against  the  intrusiveness   of   the
investigatory  stop in this case, is sufficient  to  justify  the
stop.
          After Judge Levy issued his order denying the motion to
suppress,  the parties entered into a Cooksey1 plea  under  which
they  recognized that the outcome of the motion to  suppress  was
dispositive of the case and agreed to allow Miller to retain  the
right to appeal from the district courts denial of his motion  to
suppress.   Miller pled guilty to refusal to submit to  a  breath
test and the other charges were dropped.
          Miller  appealed  the  district courts  denial  of  his
motion to suppress.  The court of appeals concluded that the stop
was  illegal because Officer Mickelson had no objective basis  to
believe that the reported argument had led, or would lead,  to  a
crime,  and  that the district court therefore erred  in  denying
Millers  motion to suppress.2  Accordingly, the court of  appeals
reversed Millers conviction.3  We granted the states petition for
hearing, and now reverse the decision of the court of appeals.
III. STANDARD OF REVIEW
          I.   We review a denial of a motion to suppress evidence in the
light most favorable to upholding the trial courts ruling.4   The
trial  courts findings of fact will not be disturbed unless  they
are  clearly erroneous.5  We independently determine whether  the
trial courts factual findings support its legal conclusions.6
IV.  DISCUSSION
          The Court of Appeals Erred in Holding that the District
          Court Should not Have Denied Millers Motion To Suppress
          and in Reversing Millers Conviction on That Basis.
          The  parties  agree  that Miller was  subjected  to  an
investigative  stop.7   The resolution of this  case  depends  on
whether  the stop was legal.  Under the standard that we set  out
in  Coleman v. State,8 a police officer in Alaska may conduct  an
investigative  stop  when the officer has a reasonable  suspicion
that imminent public danger exists or serious harm to persons  or
property  has  recently  occurred.9   In  order  to  satisfy  the
reasonable  suspicion  requirement, the officer  must  have  some
minimal  level of objective justification for making the  stop.10
The  objective  justification must  be  something  more  than  an
          inchoate and unparticularized suspicion or hunch.11  The officer
must  be  able to point to specific and articulable facts  which,
under the totality of

the  circumstances  known to the officer  and  in  light  of  the
officers experience, support making the stop.12
          In evaluating whether a specific stop was legal, Alaska
courts apply a balancing test that was first articulated in State
v. G.B. by then-Chief Judge Bryner of the court of appeals.13  The
degree  of threat to the public safety and the imminence of  that
threat (or the seriousness of an already committed crime and  the
recency  of  the crime), must be weighed against the strength  of
the  officers reasonable suspicion and the intrusiveness  of  the
stop.14   A  minimally intrusive stop based on solid  information
indicating that a crime is actually in progress or has just  been
completed  may  be justified under Coleman even  when  the  crime
itself  is not a felony and involves harm that in other  contexts
might not seem particularly serious.15
          Because   the  Coleman  and  G.B.  inquiries  must   be
conducted  on the basis of the individual circumstances  of  each
case,16  we  consider  four questions: (1) How  serious  was  the
alleged  crime  to  which  the officer was  responding?  (2)  How
immediate  was the alleged crime to the investigative  stop?  (3)
How  strong  was  the  officers  reasonable  suspicion?  (4)  How
intrusive was the stop?17  In carrying out this inquiry, we review
the district courts denial of the motion to suppress in the light
most  favorable to upholding that decision.18 We will uphold  the
trial  courts findings of fact unless those findings are  clearly
erroneous.19
          1.   How serious was the alleged crime to which Officer Mickelson
               was responding?
          The  state argues that Officer Mickelson was responding
to  a reported crime, asserting that the officer had a reason  to
believe  that  a  domestic disturbance had  taken  place  moments
before  he arrived at the scene.  Miller disagrees, arguing  that
[t]he  911  call did not provide any indication that a crime  had
occurred  or was about to occur because arguing is not  a  crime.
Judge  Levy  found that Officer Mickelson knew  that  a  domestic
disturbance  had  taken place moments before he  arrived  on  the
scene.   The  court of appeals conclusion that the  investigative
stop  was  illegal  rested  upon the  courts  determination  that
Officer  Mickelson had no objective basis for  believing  that  a
crime  had  occurred  or  that one was imminent  because  Officer
Mickelson  was responding to a report of an argument and  had  no
reason to infer that this was a domestic violence situation.20
          The  court  of  appeals failed to accord  the  district
courts  factual  findings  the  deference  to  which  they   were
entitled,  and it did not consider the factual context  in  which
Officer  Mickelson acted.  He was responding to  a  citizens  911
call  reporting  to  the dispatcher that a couple  was  fighting,
relayed  to him as a domestic verbal dispute. Thus, the  district
courts finding that the officer was acting on information that  a
domestic  disturbance  had taken place  only  moments  before  he
arrived  was  not  clearly erroneous.   Moreover,  the  court  of
          appeals failed to recognize the danger that a report of a verbal
domestic dispute portends.  As Officer Mickelson testified,  such
a  report  may  indicate  something  more  serious  and,  in  his
experience, a verbal dispute always precedes a physical  one.   A
study  issued in September 2005 ranked Alaska first in the nation
for  the  rate of intimate partner violence ending in homicide.21
Nationally,   for   homicides  in  which  the  victim-to-offender
relationship  could be identified, ninety-two percent  of  female
victims were murdered by someone they knew, and sixty-two percent
were killed by husbands, ex-husbands, or boyfriends.22
          In  holding  that  the  report  of  a  verbal  domestic
argument did not provide reasonable suspicion to justify the stop
of  Millers vehicle, the court of appeals determined that Officer
Mickelson  had  no  reason  to infer that  this  was  a  domestic
violence  situation:  no  violence  had  been  reported,  he  had
observed no violence, and he had no knowledge of the relationship
of the people involved.23  But as the state correctly points out,
physical  contact is not a necessary element of domestic violence
or of assault in the fourth degree.
          Alaska  Statute 11.41.230(a)(3) states  that  a  person
commits  the class A misdemeanor of assault in the fourth  degree
when  by  words  or  other conduct that person recklessly  places
another   person   in   fear   of   imminent   physical   injury.
Under  AS 18.66.990(3), domestic violence includes the commission
or  attempted  commission by a household member  against  another
household  member of a crime against the person under  AS  11.41.
The  definition of household member under AS 18.66.990(5) is very
broad,  and  includes, among others, adults or  minors  who  live
together  or who have lived together, who are dating or who  have
dated,  who  are  engaged  in or who have  engaged  in  a  sexual
relationship, or who are related to each other up to  the  fourth
degree of consanguity.
          Here,   Officer  Mickelson  understood  that   he   was
responding  to  a  report of a verbal 10-16  or  verbal  domestic
dispute   involving a man who was a foot and a half  taller  than
the  woman with whom he was arguing vociferously in a parking lot
in  the  vicinity of a bar near closing time.  The  argument  was
sufficiently extreme to prompt a citizens 911 call.   The  police
dispatcher who communicated this information to Officer Mickelson
had received the 911 call from a person who stated that a man and
a  woman  described by the caller as a couple or siblings24  were
fighting  in  the parking lot, even though the fight involved  no
physical  punching.   Because domestic violence  can  include  an
incident in which an individual makes a verbal threat that places
a  partner or sibling in fear of imminent physical injury,25  and
because the 911 report suggested that all of those elements could
have  been  present  in  this  case,  we  conclude  that  it  was
reasonable  for  the police dispatcher to believe  that  a  crime
involving  domestic  violence  had  been  committed,  was   being
committed,  or  would  soon  be committed,  and  to  convey  this
information to Officer Mickelson.
          Miller  attempts  to  downplay  the  risk  of  domestic
violence   and  therefore the severity of the alleged  crime   by
asserting  that  there was only some small  possibility  that  an
          assault would occur given that most arguments do not end in
criminal  activity.  But most arguments do not lead to 911  calls
by  disinterested citizens.  Miller also argues that the state is
trying to create an exception to the Coleman standard whereby the
police  could detain a citizen on nothing more than the anonymous
allegation  that  they  have engaged in a  verbal  argument  with
anyone  who  meets the extraordinarily broad statutory definition
of  household  member in AS [18.66.]990(5).  The  state  responds
that [b]ecause domestic violence crimes are so pervasive and  yet
so  underreported, police must be encouraged to  investigate  all
reports of domestic violence.  The state is right: Alaska  courts
have  repeatedly recognized the problem of domestic  violence  in
Alaska,  and the importance of vigorously resist[ing] complacency
about  the problem in the face of the fact that domestic assaults
are so commonplace, and that they typically occur in [private].26
It is also true that domestic disturbances have the potential to,
and often do, lead to injury and death of third persons.27
          Miller  also appears to suggest that the officer should
have abandoned his investigation once he saw the couple enter the
private  vehicle  because  at that  point  he  had  not  received
sufficient  information to suggest that a crime had occurred,  or
was  occurring.  The fact that the couple had moved from  arguing
in  public  to  entering a private vehicle  does  not  mean  that
domestic  violence had not already occurred,  or  was  not  still
occurring.   Because  the report that Officer Mickelson  received
from  the  dispatcher  was consistent with  a  domestic  violence
situation,  and  because  that  particular  crime  is  one   that
typically  occurs in private, Officer Mickelson could  reasonably
believe  that  the  crime was ongoing.  This reasoning  does  not
require,    as   Miller   suggests,   a   departure   from    the
Coleman  standard,  but  rather involves  a  recognition  of  the
continuing   problem  of  domestic  violence,  and   the   states
responsibility in protecting against it.
          The facts of this case, therefore, can be distinguished
from the facts in Jones v. State,28 relied on heavily by the court
of  appeals  here.  In Jones, the court of appeals  held  that  a
verbal  argument alone is insufficient to justify a  detention.29
In that case, the police responded to a 911 call that reported an
argument  between  a tenant and a landlord.30   When  the  police
separated the tenant and the landlord and began to question  them
individually  about the dispute, the tenant  Jones  attempted  to
walk away from the officers.31  The police moved to restrain Jones
and,  when he resisted, they handcuffed and searched him.32   The
court  of  appeals  ultimately held that  the  cocaine  that  was
recovered as a result of the search was inadmissible because  the
police had no indication that Jones had assaulted the landlord or
had  committed  any illegal act and therefore had  no  basis  for
requiring  Jones to remain at the scene.33  In that case,  unlike
the present, the police had already separated the two individuals
and  one  attempted to leave, thereby ending the danger that  the
argument could escalate and become violent.  In contrast, in this
case  the parties who were involved in the argument had not  been
separated but had instead moved into a private vehicle where  the
dispute  could continue or even escalate.  It is also significant
          that Officer Mickelson had a stronger indication in this case
that  Miller had committed or was about to commit a crime because
the  911  call  provided  information that  could  reasonably  be
regarded as a description of domestic violence involving  assault
in the fourth degree.
          In sum, Officer Mickelson was responding to a situation
that  he  could  reasonably believe may have  already  satisfied,
currently   satisfied,  or  would  soon  satisfy   all   of   the
requirements  for  domestic violence  involving  assault  in  the
fourth degree.


          2.   How immediate was the alleged crime to the investigative
               stop?
          We   have  previously  stated  that  the  justification
required  for  an  investigative stop of a  vehicle  leaving  the
vicinity of a suspected crime may be lower than the justification
required  for a police officer to stop and question a  person  on
foot  because  in such a situation, if action is not  immediately
taken, there is not likely to be another chance.34  In this case,
after receiving the report from the police dispatcher of a verbal
domestic  dispute  in  the parking lot  of  Henrys  Bar,  Officer
Mickelson,  who  was  in the immediate area, headed  towards  the
parking lot and observed the persons entering an automobile.   As
Officer  Mickelson arrived in the parking lot,  the  vehicle  was
moving,  driving . . . across the parking lot.  Officer Mickelson
passed  the  Subaru and, from a distance of eight  or  ten  feet,
tried  to see if anyone in the vehicle was injured or in need  of
assistance,  but  couldnt  really  see  into  the  car.   Officer
Mickelson made the investigative stop when the Subaru had reached
the  exit  from the parking lot.  Officer Mickelson  stopped  the
vehicle,  therefore, only seconds after receiving the call,  only
after  eliminating  any non-intrusive means of  ascertaining  the
situation, and only when it appeared that there would be no other
opportunities before the vehicle left the vicinity  to  determine
whether the reported crime had occurred, was still occurring,  or
was  about  to  occur.   In short, the alleged  crime  was  quite
immediate to the investigative stop.
          3.   How strong was the officers reasonable suspicion?
          1.   Under the reasonable suspicion requirement, the officer must
have some minimal level of objective justification for making the
stop.35  The objective justification must be something more  than
an  inchoate  and  unparticularized suspicion  or  hunch.36   The
officer  must be able to point to specific and articulable  facts
which,  under  the  totality of the circumstances  known  to  the
officer  and in light of the officers experience, support  making
the  stop.37   In  noting the difference between the  quantum  of
information  an  officer must have in order  to  justify  a  stop
compared to that needed in order to justify an arrest, the  court
of  appeals has stated that in the case of an investigative  stop
it  will suffice that there exists a substantial possibility that
criminal  conduct  has occurred, is occurring,  or  is  about  to
occur.38   And relevant information known to a police  dispatcher
may  be imputed to a police officer who conducts an investigative
          stop and so may be considered for purposes of evaluating whether
the stop was supported by a reasonable suspicion.39
          Here, Officer Mickelson was responding to a report from
the police dispatcher of a verbal domestic [dispute] . . . at the
end  of the building in the parking lot near Henrys, and the call
was  that the subjects were standing near a white Subaru with the
doors open.  When Officer Mickelson came into view of the parking
lot  he observed the white Subaru parked at Henrys, . . . and the
people  were getting in the Subaru.  Officer Mickelsons  decision
to  stop  the  vehicle, therefore, was based on the specific  and
articulable facts that he had received a report from  his  police
dispatcher indicating that there was a domestic dispute involving
individuals near a white Subaru at the parking lot of Henrys bar,
and  that when he arrived at the location he observed individuals
entering into the white Subaru.
          Additionally, Officer Mickelson interpreted  the  facts
reported  to  him by the police dispatcher, along  with  his  own
observations,  in  the light of his own experience  as  a  police
officer.40   Officer Mickelson testified that he  had  experience
investigating domestic disputes and that in his experience almost
every  domestic situation Ive been involved with has started  out
verbally.   Accordingly,  even though  the  report   of  fighting
described  not like physical punching, but like yelling,  .  .  .
fighting  and  pointing, and like waving of arms,  and  a  verbal
domestic  disturbance, Officer Mickelsons experience led  him  to
believe that there was a substantial possibility that the dispute
could  escalate  into  physical violence,  or  may  already  have
escalated.41
          Miller argues that the information provided by the  911
caller  could not support a reasonable suspicion because the  911
call  itself  indicates  that the caller did  not  have  personal
knowledge.  But a review of the relevant law and the evidence  in
this case refutes that claim.
          In  Alaska,  [a] stop may be based upon  an  informants
tip, so long as there is reason to believe that the informant  is
credible and a basis for concluding that the information provided
by the informant was based on personal knowledge.42  The court of
appeals has held that information provided by an anonymous caller
can  be sufficient to justify an investigative stop when the  tip
has some indicia of reliability.43
          Millers assertion that the caller did not have personal
knowledge is based  on the fact that a third person can be  heard
on  the  recording of the 911 call providing the caller with  the
specific make and model of Millers vehicle.  On the recording  of
the  911 transcript, the caller identifies the vehicle as  a  car
with  its  doors open . . . a white one, and then, after  another
voice  can be heard in the background, adds I guess its  a  white
Subaru,  its like newer, a WRX.  Viewing the facts in  the  light
most  favorable to the party that prevailed at the trial court,44
it  is clear from the 911 transcript that the caller herself  had
observed the arguing couple and the vehicle but had not known the
name  of that particular make and model.  It is also evident that
the  third  party offered the specific make and model to  provide
more  detail to the police.  The transcript of the 911 call  does
          not show that the caller did not have personal knowledge of the
events she was describing; it shows only that the caller was  not
familiar with the particular model of vehicle.  In addition, some
of the information relayed by the caller to the dispatcher and by
the  dispatcher  to  Officer Mickelson was immediately  confirmed
when  the officer approached the location provided by the  caller
and  observed  the  white  Subaru with individuals  entering  the
vehicle.   The information provided by the 911 caller, therefore,
was  credible, and based on first-hand knowledge, and had indicia
of reliability.
          Because  the  911 call was sufficiently  credible,  and
because  the  information  conveyed  from  the  caller   to   the
dispatcher described a verbal argument between a man and a  woman
involving  pointing and arm waving, the police dispatcher  had  a
reasonable basis for describing the incident to Officer Mickelson
as  a  verbal domestic dispute.45  And because Officer  Mickelson
personally  observed  the  individuals described  by  the  police
dispatcher  entering the Subaru, because a domestic  assault  may
occur  even in the absence of a physical attack, and because  the
officers personal experience indicated that incidents of physical
domestic  violence  usually  begin as verbal  domestic  disputes,
Officer  Mickelson had a strong suspicion that he was  responding
to  an incident where there was a substantial possibility that  a
crime  had  occurred, was occurring, or was about to occur.   The
court  of  appeals erred, therefore, in concluding  that  Officer
Mickelson . . . had no objective basis for believing that a crime
had occurred or that one was imminent.46
          4.   How intrusive was the stop?
          1.   As noted, the parties agree that Miller was subjected to an
investigative  stop.47  We have recognized that an  investigative
stop  is  an  intermediate response between an  arrest  based  on
probable  cause  and simply allowing a crime  to  occur,  and  is
designed   to  enable  the  police  to  determine  [a  suspicious
individuals]  identity or to maintain the status quo  momentarily
while  obtaining more information.48  Officer Mickelson testified
that he made the investigative stop in this case in order to  ask
the driver what was going on with the . . . argument over at .  .
.  Henrys.  Officer Mickelson posed that question to Miller,  the
driver  of  the  vehicle, and he asked if  everything  was  okay,
looking at the female passengers as he did so.  Officer Mickelson
conducted  this brief interview through the open  window  of  the
Subaru.   The  stop was minimally intrusive.    It  was  only  as
Officer  Mickelson  ensured that no one in the  vehicle  required
assistance  as  a result of the argument that his  attention  was
drawn to the evidence that Miller was driving while intoxicated.
               Balancing the factors
          Looked at in the light most favorable to upholding  the
trial  judges  factual findings, the following  picture  emerges:
Officer Mickelson made an investigative stop that involved  brief
questioning  conducted through the window of the  vehicle.   This
minimally intrusive investigative stop was based on the  officers
reasonable  suspicion  that  a crime  of  domestic  violence  had
occurred, was still occurring, or was about to occur, and on  his
observation  that  the individuals involved in the  dispute  were
          leaving the vicinity.  The description of the argument that was
reported  to the police dispatcher in the 911 call suggested  the
presence  of  all of the elements of domestic violence  involving
assault  in  the  fourth degree: the caller  described  a  couple
engaged in a heated argument involving words and actions that had
the  potential  to  place  another person  in  fear  of  imminent
physical injury.49
          In  G.B., Chief Judge Bryner emphasized that Coleman is
ultimately  rooted  in  common sense and practicality,  and  that
courts must evaluate the risk that an investigative stop based on
mere  suspicion may be used as a pretext to conduct a search  for
evidence.   As indicated in Coleman, the fundamental  inquiry  in
each case is whether a prompt investigation [was] required . .  .
as a matter of practical necessity. 50
          Here,  there is no indication that the purpose  of  the
investigative  stop  was to conduct a search  for  evidence  that
Miller   was  driving  under  the  influence  nor  that   Officer
Mickelsons  suspicion of domestic violence was  a  mere  pretext.
There is, however, ample evidence that a prompt investigation  by
Officer Mickelson was required as a matter of practical necessity
in  order  to ascertain whether a domestic violence incident  had
occurred,  or to prevent a domestic dispute from escalating  into
domestic violence.
          On  each of the four factors that a court must consider
in  determining  the  legality  of  an  investigative  stop   the
seriousness  of the alleged crime, the immediacy of  the  alleged
crime  to  the  investigative stop, the strength of the  officers
reasonable  suspicion, and the intrusiveness of the  stop51   the
facts  of  the present case support the legality of the  stop  at
least  as strongly, if not more strongly, than the facts at issue
in  G.B.  where  the court of appeals reversed the  trial  courts
suppression order and allowed the admission of evidence  gathered
through an investigative stop.52  First, the alleged crime in G.B.
was  an unspecified theft from a video store,53 a property crime,
whereas  here  the  alleged  crime  involved  potential  domestic
violence, a crime against persons.  Second, in both G.B. and  the
present  case,  the officers made their respective  investigative
stops  almost immediately after receiving the police  dispatch.54
In G.B., however, the suspect was on foot,55 and therefore likely
to  remain in the area,56 whereas in the present case the suspect
had entered his vehicle and was leaving the scene at the time the
officer  made  the stop.  Third, on the question of the  officers
reasonable  suspicion, in G.B. the officer  stopped  the  suspect
based  on a physical description relayed by the police dispatcher
and the suspects presence in the general vicinity of the reported
crime.57   Here,  the  officer was given  a  description  of  the
individuals  involved in the argument, their vehicle,  and  their
location  in  the  parking lot, thus essentially eliminating  the
possibility that he would stop the wrong person.  Fourth, on  the
intrusiveness of the stop, in G.B. the officer asked the  suspect
to  enter his patrol car and, after recognizing the suspects name
as being associated with a recent trespass into another business,
conducted  a  patdown  search.58  Here, the officer  allowed  the
suspect  to  remain in his own vehicle while he asked  two  brief
          questions through the Subarus open window, and only initiated the
arrest  when  confronted with the drivers bloodshot, watery  eyes
and  the odor of alcohol.  This favorable comparison between  the
facts of the two cases is further strengthened by the posture  of
the  respective  cases on appeal: the court of  appeals  in  G.B.
overturned the factual findings of the trial court,59  while  our
decision  today affirms the trial courts decision, including  its
factual findings.
          Officer  Mickelson  was  confronted  with  a  difficult
decision   when  he  arrived  at  the  scene  and  observed   the
individuals reported to have been involved in a domestic  dispute
leaving the vicinity in a vehicle.  We hold that the trial  court
did   not   err  in  concluding  that  Officer  Mickelson   acted
appropriately  in  taking the necessary and  minimally  intrusive
step  of  stopping the vehicle based on his reasonable  suspicion
that  there  was  a  substantial possibility that  the  crime  of
domestic  violence  involving assault in the  fourth  degree  had
occurred, was occurring, or was about to occur.60
V.   CONCLUSION
          We  REVERSE  the judgment of the court of  appeals  and
REINSTATE Millers conviction.
MATTHEWS,   Justice,  with  whom  FABE,  Chief  Justice,   joins,
dissenting.
          The  court  of appeals applied a legal precept  derived
from  its  decision in Jones v. State.1  The precept is  that  an
argument,  even  a loud one, standing alone does not  justify  an
investigative    stop.2     Under   the   Alaska    Constitution,
investigative stops are only permitted if the officer  who  makes
the  stop  has  reasonable  suspicion that  a  serious  crime  is
imminent  or has recently been committed.3  The court of  appeals
principle  seems well justified.  Arguments are not crimes,  much
less  serious  ones,  nor,  absent sights  or  sounds  indicating
physical  violence, are they closely associated with past  recent
or  imminent  future crimes.  Loud and heated arguments  are  not
infrequent  in  our  society.  Sometimes they break  out  between
strangers.   More often they involve acquaintances,  couples,  or
parents  and their children.  But only rarely do they  degenerate
into physical assaults.
          This case seems particularly apt for application of the
court of appeals precept.  As the court observed:
          Officer Mickelsen, like the officer in Jones,
          had  no objective basis for believing that  a
          crime   had   occurred  or   that   one   was
          imminent.    .   .   .    Officer   Mickelsen
          acknowledged that he had no reason  to  infer
          that  this was a domestic violence situation:
          no   violence  had  been  reported,  he   had
          observed no violence, and he had no knowledge
          of the relationship of the people involved.[4
          ]
I  would  add  that when Officer Mickelsen arrived at  the  place
where  the argument had taken place he could see that there  were
three adults (two women and a man) getting into the white Subaru,
rather  than  two  as  had been reported.  An  imminent  domestic
assault was particularly unlikely to spring from such a grouping,
for experience tells us that domestic assaults between adults are
most frequently one-on-one events.
          The  ongoing case law development process of the  court
of  appeals  should, over time, give concrete meaning to  Alaskas
constitutional search and seizure guarantees.  In my view, todays
opinion needlessly interferes with this process and fails to give
sufficient weight to our constitutional protections.   For  these
reasons   I   would  either  dismiss  the  States   petition   as
improvidently  granted or affirm the decision  of  the  court  of
appeals.

_______________________________
     1    Cooksey v. State, 524 P.2d 1251 (Alaska 1974); see also
Miles v. State,
825 P.2d 904 (Alaska App. 1992).

     2     Miller  v. State, 145 P.3d 627, 628, 630 (Alaska  App.
2006).

     3    Id. at 630.

     4     State  v.  Joubert, 20 P.3d 1115, 1118  (Alaska  2001)
(citing Castillo v. State, 614 P.2d 756, 765-66 (Alaska 1980)).

     5     Id.  (citing Chilton v. State, 611 P.2d 53, 55 (Alaska
1980)).

     6     Id. (citing Troyer v. State, 614 P.2d 313, 318 (Alaska
1980)).

     7    Miller, 145 P.3d at 629.

     8    553 P.2d 40 (Alaska 1976).

     9    Id. at 46.

     10     McQuade  v. State, 130 P.3d 973, 976-77 (Alaska  App.
2006)  (quoting In the Matter of J.A., 962 P.2d 173, 176  (Alaska
1998)).

     11    Id. (quoting In the Matter of J.A., 962 P.2d at 176).

     12    Id. (quoting Waring v. State, 670 P.2d 357, 365 (Alaska
1983));  see also Gutierres v. State, 793 P.2d 1078, 1080 (Alaska
App.  1990)  (citing  United States v. Sokolow,  490  U.S.  1,  8
(1989)).

     13    769 P.2d 452, 455-56 (Alaska App. 1989).

     14    Id. at 456.

     15     Id.  (citing  Coleman v. State, 553 P.2d  40  (Alaska
1976)).

     16    Id. at 455.

     17    Id. at 456 (holding that degree and imminence of threat
to  public  safety must be balanced against strength of  officers
reasonable  suspicion and actual intrusiveness  of  investigative
stop).

     18    State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001).

     19     Id. at 1118 (citing Chilton v. State, 611 P.2d 53, 55
(Alaska 1980)).

     20    Miller v. State, 145 P.3d 627, 630 (Alaska App. 2006).

     21     Violence  Policy Center, When Men  Murder  Women:  An
Analysis     of     2003     Homicide     Data     5      (2005),
www.vpc.org/studies/wmmw2005.pdf.

     22    Id. at 3.

     23    Miller, 145 P.3d at 630.

     24    Miller emphasizes that [t]he caller acknowledged to the
dispatcher  that  she  did  not know  what  relationship  existed
between the man and woman and that [t]he state never produced any
evidence  that  the man and woman were in any  sort  of  domestic
relationship.   Because  the  standard  being  applied  here   is
reasonable  suspicion, (see Coleman v. State,  553  P.2d  40,  46
(Alaska  1976)) the actual relationship between the man  and  the
woman   matters   less  than  the  apparent  relationship.    The
description  provided by the caller could fit  a  number  of  the
types  of  relationships whose members are defined  as  household
member[s] under AS 18.66.990(5).

     25    See AS 18.66.990(3), (5); AS 11.41.230(a)(3).

     26     State  v.  Huletz, 838 P.2d 1257, 1261  (Alaska  App.
1992); see also Pickard v. State, 965 P.2d 755, 761 (Alaska  App.
1998) (Both the Alaska Legislature and this court have recognized
that  domestic violence . . . represents a serious danger to  its
victims and a significant harm to society at large.).

     27     See  State v. Alex, 1JU-06-848 CR (Juneau Super.  Ct.
2006)  and  State v. Smathers, 1JU-06-849 CR (Juneau  Super.  Ct.
2006) (domestic violence between couple in moving automobile  led
to  head-on collision with second automobile, killing  driver  of
second   automobile).   Empirical  studies  show  that   domestic
violence  calls  consistently rank high in rate  of  injuries  to
responding officers.  See, e.g., Desmond Ellis, Alfred Choi,  and
Chris  Blaus,  Injuries  to  Police Officers  Attending  Domestic
Distrubances:   An  Empirical  Study,  35  Canadian  Journal   of
Criminology,  149-68 (1993) (ranking domestic  disturbance  calls
third  in  rate of injuries to responding police officers,  after
robbery   and  arresting/controlling/transporting  suspects   and
prisoners).   See also J. David Hirschel, Charles  W.  Dean,  and
Richard  C. Lumb, The Relative Contribution of Domestic  Violence
to Assault and Injury of Police Officers, 11 Justice Quarterly 99-
117   (1994)  (ranking  domestic  disturbance  fourth  among  ten
categories  of  police  work in ratio of assaults  to  calls  for
service).

     28    11 P.3d 998 (Alaska App. 2000).

     29    Id. at 1000.

     30    Id. at 999.

     31    Id.

     32    Id.

     33    Id. at 1000.

     34    Coleman v. State, 553 P.2d 40, 46 n.19 (Alaska 1976).

     35     McQuade  v. State, 130 P.3d 973, 976-77 (Alaska  App.
2006)  (quoting In the Matter of J.A., 962 P.2d 173, 176  (Alaska
1998)).

     36    Id. (quoting In the Matter of J.A., 962 P.2d at 176).

     37    Id. (quoting Waring v. State, 670 P.2d 357, 365 (Alaska
1983));  see also Gutierres v. State, 793 P.2d 1078, 1080 (Alaska
App.  1990)  (citing  United States v. Sokolow,  490  U.S.  1,  8
(1989)).

     38    State v. Moran, 667 P.2d 734, 735-36 (Alaska App. 1983)
(emphasis in original).

     39     State  v.  Prater, 958 P.2d 1110, 1110  (Alaska  App.
1998).

     40    See Gutierres, 793 P.2d at 1080 (A reasonable suspicion
is  one  that has some factual foundation in the totality of  the
circumstances  observed by the officer in light of the  officer's
knowledge.).

     41    See State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001)
(We  review  a denial of a motion to suppress in the  light  most
favorable to upholding the trial courts ruling.); see also Moran,
667  P.2d  at  735-36 (stating that substantial possibility  that
criminal conduct has occurred, is occurring, or is about to occur
is   sufficient  to  justify  investigative  stop)  (emphasis  in
original).

     42     Allen  v.  State, 781 P.2d 992, 993-94  (Alaska  App.
1989).

     43     Effenbeck  v. State, 700 P.2d 811, 812  (Alaska  App.
1985).

     44    See Joubert, 20 P.3d at 1118.

     45     See State v. Prater, 958 P.2d 1110, 1110 (Alaska App.
1998) ([R]elevant information known to a police dispatcher may be
imputed  to  a police officer who conducts an investigative  stop
and  so may be considered for purposes of evaluating whether  the
stop was supported by a reasonable suspicion.).

     46    Miller v. State, 145 P.3d 627, 630 (Alaska App. 2006).

     47    Id. at 629.

     48     Coleman  v.  State,  553 P.2d 40,  45  (Alaska  1976)
(quoting Adams v. Williams, 407 U.S. 143, 146 (1972)).

     49     See  AS 18.66.990(3) (stating that domestic  violence
includes  the commission or attempted commission by  a  household
member  against another household member of a crime  against  the
person under AS 11.41); AS 11.41.230(a)(3) (stating that a person
commits  the class A misdemeanor of assault in the fourth  degree
when  by  words  or  other conduct that person recklessly  places
another person in fear of imminent physical injury).  As for  the
persons  to  whom the domestic violence statutes  apply,  see  AS
18.66.990(5)  (defining  household members  for  the  purpose  of
domestic  violence legislation as including adults or minors  who
live  together or who have lived together, who are dating or  who
have  dated, who are engaged in or who have engaged in  a  sexual
relationship, or who are related to each other up to  the  fourth
degree of consanguity).

     50     State  v. G.B., 769 P.2d 452, 456 (Alaska App.  1989)
(quoting Coleman, 553 P.2d at 46).

     51    See id.

     52    Id. at 457.

     53    Id. at 453.

     54    Id.

     55    Id. at 453-54.

     56    See supra n.34 and accompanying text.

     57    G.B., 769 P.2d at 453-54.

     58    Id. at 454.

     59    Id.

     60     See State v. Moran, 667 P.2d 734, 735-36 (Alaska App.
1983).

     1     See Miller v. State, 145 P.3d 627, 629-30 (Alaska App.
2006) (citing Jones v. State, 11 P.3d 998 (Alaska App. 2000)).

     2     There  is  case law in other jurisdictions  supporting
this  principle.  See Van Patten v. State, 697 S.W.2d 919, 920-21
(Ark.  App.  1985) (holding officer violated a defendants  Fourth
Amendment  rights by stopping a vehicle based on a  report  of  a
loud  party  disturbance).  Other cases involving arguments  that
had   not  yet  escalated  to  physical  violence  have  included
aggravating   facts  supporting  a  conclusion  that   reasonable
suspicion  existed.  See, e.g., Nelson v. State, 556 S.E.2d  527,
529-30  (Ga. App. 2001) (holding a stop was appropriate  where  a
police  officer  saw the driver and passenger  of  a  moving  car
fighting  in  a  manner suggesting that blows were  about  to  be
struck and causing the vehicle to drift[] in its lane, creating a
danger  to the public); People v. Williams, 159 A.D.2d  946,  947
(N.Y.  App.  1990)  (holding there was  reasonable  suspicion  to
support  a stop where the police observed a man and woman arguing
and  had  received a report that the man had a gun); Commonwealth
v.  Shine,  784 A.2d 167, 172-73 (Pa. Super. 2001) (holding  stop
was  justified where police officer arrived on the scene of  what
he   perceived  to  be  an  escalating  violent  situation  after
receiving a report that two men were on the highway with guns).

     3    Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).

     4    Miller, 145 P.3d at 630.

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