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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Majaev v. State (1/22/2010) sp-6455

Majaev v. State (1/22/2010) sp-6455, 223 P3d 629

     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

ANTON MAJAEV, )
) Supreme Court No. S- 13033
Petitioner, )
) Court of Appeals No. A-9744
v. ) District Court No. 3HO-04-00509 CR
)
STATE OF ALASKA, ) O P I N I O N
)
Respondent. ) No. 6455 January 22, 2010
)
          Petition  for  Hearing  from  the  Court   of
          Appeals  of  the State of Alaska,  on  Appeal
          from   the  District  Court,  Third  Judicial
          District, Homer, Margaret L. Murphy, Judge.

          Appearances: Charles E. Tulin, Anchorage, for
          Petitioner.  Terisia K. Chleborad,  Assistant
          Attorney   General,   Office   of     Special
          Prosecutions  and  Appeals,  and  Richard  A.
          Svobodny,  Acting  Attorney General,  Juneau,
          for Respondent.

          Before:   Carpeneti,  Chief  Justice,   Fabe,
          Winfree,  and Christen, Justices.  [Eastaugh,
          Justice, not participating.]

          FABE, Justice.

I.   INTRODUCTION
          After  arriving  at the site of a party where  underage
drinking  was  suspected,  Alaska State  Trooper  Travis  Bordner
approached a vehicle driven by Anton Majaev.  Majaev pulled  away
to  leave the scene but stopped when he saw the trooper walk into
the  road to look at the license plate of Majaevs truck.  Trooper
Bordner  waved  Majaev  back,  and  Majaev  complied  with   this
direction by backing up to speak with the officer.  At that time,
Trooper  Bordner  found reason to conduct field  sobriety  tests,
which  Majaev  subsequently  failed.   Majaev  was  charged  with
driving under the influence and moved to dismiss the case against
him  on the grounds that he was illegally seized in violation  of
both  the United States Constitution and the Alaska Constitution.
The  district court denied his motion, and the court  of  appeals
affirmed  this denial on the basis that no seizure occurred.   We
conclude  that a reasonable person in Majaevs position would  not
have  felt  free to leave the scene because doing so  would  have
violated  the  law  and  that,  therefore,  a  seizure  occurred.
Accordingly, we reverse the decision of the court of appeals that
no  seizure  occurred  and  remand for  a  determination  by  the
district  court regarding whether Trooper Bordner had  reasonable
suspicion to seize Majaev.
II.  FACTS AND PROCEEDINGS
          On  the  evening  of  October 10,  2004,  Alaska  State
Trooper  Travis  Bordner responded to a report  that  a  property
owner  planned to break up an underage party at a gravel  pit  in
Homer.   Before Trooper Bordner reached his destination,  he  saw
the  property owner returning from the gravel pit.  The  property
owner told Trooper Bordner that the young people who had gathered
there were in the process of leaving.  While Trooper Bordner  and
the  property owner were talking, a couple drove up and  reported
their belief that young people were drinking at a turnout about a
mile up the road.
          Trooper  Bordner  was  familiar  with  this  particular
turnout and recalled that there had been underage parties in that
area in the past.  He drove to the turnout and observed twenty to
thirty  people in the area who appeared to be in their  mid-teens
to  mid-twenties.  When the group of people saw the marked police
vehicle  approaching,  they  scattered  into  the  woods  nearby.
Trooper  Bordner, who was in uniform, parked his  patrol  vehicle
about  ten feet away from the drivers side door of Anton  Majaevs
truck.
          Majaev  drove  away  in a hurried manner  when  Trooper
Bordner walked toward him.  When Trooper Bordner stepped into the
road to see the license plate on Majaevs truck, the truck stopped
about  thirty  to  fifty  feet away from  the  trooper.   Trooper
Bordner  realized that Majaev could see him in the  drivers  side
mirror,  so  the trooper wave[d] him back to talk to  him.   When
Majaev  saw  Trooper Bordner beckoning for him to come  back,  he
backed  up  and  rolled down his window.  At that  time,  Trooper
Bordner  smelled  alcohol and saw beer cans in the  back  of  the
truck.   Majaev  failed the field sobriety tests administered  to
him  by  Trooper Bordner and was transported to the Homer  Police
Station,  where he provided a breath sample that contained  0.120
alcohol content.
          Majaev was charged with driving under the influence  in
violation  of  AS  28.35.030(a).  Majaev moved  to  suppress  the
evidence  gathered and dismiss the charge, arguing  that  he  had
been  subjected  to  an unlawful seizure.  District  Court  Judge
Margaret L. Murphy denied the motion, reasoning that there was no
seizure  because  [a] mere wave of the arm  is  not  a  means  of
physical  force  nor  can it be considered a sufficient  show  of
authority  to make the reasonable person believe that he  is  not
free  to  continue on his way.  Majaev entered a no contest  plea
and  preserved  his right to appeal the denial of his  motion  to
dismiss.1   The  court of appeals affirmed the  judgment  of  the
district  court  that no seizure had occurred, reasoning  that  a
reasonable person would not interpret Trooper Bordners actions as
an intent to restrain or confine.2
          We granted Majaevs petition for hearing.
III. STANDARD OF REVIEW
          Whether a seizure has occurred is a question of  fact.3
Therefore   we  review  whether  an  encounter  between   a   law
enforcement officer and a citizen constituted a seizure under the
clearly  erroneous standard.4  A finding is clearly erroneous  if
this  court  is left with a definite and firm conviction  that  a
mistake  has been made upon reviewing the entire record.5   While
we review  the trial courts historical factual findings under the
clearly erroneous standard, we apply our independent judgment  to
questions of law presented by constitutional issues.6  Under this
standard, we will adopt the rule of law most persuasive in  light
of precedent, reason, and policy.7
IV.  DISCUSSION
           The Fourth Amendment of the United States Constitution
and  article  I,  section  14  of the  Alaska  Constitution  both
prohibit unreasonable searches and seizures.8  The critical issue
to  be  decided in this case is whether Trooper Bordners  actions
constituted a seizure.  If they did, the next question is whether
this  seizure  was unreasonable.  Because the Alaska Constitution
provides  broader protection than the United States  Constitution
in  the  area of search and seizure, it is appropriate  to  apply
state  constitutional  protections in this  case.9   Although  we
carefully  consider  and  find  substantial  guidance  in   cases
interpreting the United States Constitution,10 we are not bound by
those decisions when interpreting state constitutional law.11
          To  determine  whether an encounter  between  a  police
officer and a citizen was constitutionally permissible, we employ
the  two-step analysis described in Waring v. State.12  First  we
consider  whether  or  not the encounter amounted  to  a  seizure
triggering constitutional protections.  If we determine that such
a seizure occurred, the next inquiry is whether the investigatory
stop  falls  within  the reasonable suspicion  exception  to  the
probable cause requirement.13
          A   seizure,  which  includes  both  full  arrests  and
investigatory stops,14 exists only when the officer, by means  of
physical  force or show of authority, has in some way  restrained
the  liberty of a citizen.15  Since there was no use of  physical
force  in  this  case, we focus on whether there was  a  show  of
authority  sufficient to convert this encounter into  a  seizure.
Our  case  law  has defined show of authority as  a  circumstance
under  which a reasonable person, in view of the objective  facts
surrounding  the incident, would believe that he is not  free  to
leave.16   Because  we use this objective standard  to  determine
whether  a  law  enforcement officers encounter  with  a  citizen
constituted  a  seizure,17 Majaevs beliefs at  the  time  of  the
          encounter are not dispositive.18
          Majaev argues that a reasonable person in his situation
would  not  have  felt  free  to leave because  ignoring  Trooper
Bordners  hand  signal  would  have  subjected  him  to  criminal
sanctions  under  AS  28.35.182, the relevant  portion  of  which
provides:
          A  person  commits the offense of failure  to
          stop  at the direction of a peace officer  in
          the   second  degree  if  the  person,  while
          driving  or  operating  a  vehicle  or  motor
          vehicle  or  while operating an  aircraft  or
          watercraft, knowingly fails to stop  as  soon
          as  practical and in a reasonably safe manner
          under  the  circumstances when  requested  or
          signaled to do so by a peace officer.[19]
          
The  statute defines a signal to include a hand motion . . . used
in  a  manner that a reasonable person would understand  to  mean
that the peace officer intends that the person stop.20
          The  State  argues that AS 28.35.182(b)  is  irrelevant
because  Majaev  had stopped his vehicle before  Trooper  Bordner
waved  his  hand  and contends that the statute only  applies  to
motorists whose vehicles are literally in motion.  We reject this
argument.  First, the statute applies to individuals operating  a
motor vehicle.  In the past, we have interpreted statutory use of
the  term  operator to mean a person who drives or is  in  actual
physical control of a vehicle, regardless of whether the  vehicle
is  moving.21   Second,  the literal application  of  the  States
argument  would  lead to an absurd result in which  Majaev,  once
stopped,  would  be legally empowered to ignore Trooper  Bordners
hand  signal, but if Majaev moved his vehicle at all, the statute
would be triggered and he would be forced to stop again to comply
with  the  statute.  We conclude that the statute, on  its  face,
applies to a person in Majaevs position.
          Citing  Castle  v.  State, the State also  argues  that
Majaev  would  not have been subject to criminal liability  under
the  statute  even if he had ignored the gesture and driven  away
because a person cannot be charged with avoiding police detention
if  the  police  did not have a legitimate basis  to  detain  the
person in the first place.22  But the State does not concede that
Trooper  Bordner lacked reasonable suspicion in the first  place.
Instead, it argues that if reasonable suspicion had been lacking,
Majaev could not have been prosecuted under AS 28.35.182.
          The States argument focuses on the wrong question.  The
relevant inquiry is not whether Majaev would actually have  faced
criminal prosecution or punishment under AS 28.35.182, but rather
whether  a  reasonable  person  in Majaevs  position  would  have
believed that he was required to respond to the troopers  gesture
in  order to comply with the law.  A reasonable person in Majaevs
position  would  assume  that he was not free  to  leave  because
ignoring  Trooper  Bordners  signal  would  be  a  violation   of
AS  28.35.182(b) and therefore could have subjected such a person
to criminal sanction.  Statutes like AS 28.35.182 are intended to
influence  behavior; thus this coercive effect must be considered
          within our analysis of whether Majaev was seized under the Waring
test.23
          The  district  court correctly determined  that  Majaev
apparently  felt free to leave when Trooper Bordner first  parked
his  vehicle and in fact did leave.  But the critical moment  for
the  purpose  of  our  analysis  occurred  when  Trooper  Bordner
signaled  to  Majaev  to  return, which triggered  the  statutory
prohibition  against ignoring a peace officer.  At  that  moment,
Majaev stopped and complied with Trooper Bordners hand signal, in
a manner consistent with his perceived duty under AS 28.35.182.
          The  show of authority in this situation emanated  from
AS 28.35.182 and its effect on a reasonable persons evaluation of
whether he is free to leave.24  The existence and applicability of
the  statute  distinguishes  this case  from  holdings  in  other
jurisdictions  that  a  police officers gesture  alone  does  not
constitute a seizure.25  Because of the statute, Trooper Bordners
gesture  was a sufficient show of authority to make a  reasonable
person in Majaevs position believe that he was no longer free  to
leave.
          Because  the  district court and the court  of  appeals
both   determined  that  a  seizure  had  not  occurred,  neither
addressed  the  second  step  of the  analysis:  whether  Trooper
Bordner  had reasonable suspicion to seize Majaev.26  Having  now
concluded that a seizure did in fact occur, we remand the  matter
so  that  the district court may consider this question and  make
appropriate factual findings.
V.   CONCLUSION
          For the foregoing reasons, we REVERSE and REMAND for  a
determination  by  the district court regarding  whether  Trooper
Bordner had reasonable suspicion to seize Anton Majaev.
_______________________________
     1     See  Cooksey v. State, 524 P.2d 1251, 1255-57  (Alaska
1974).

     2     Majaev  v.  State, Mem. Op. & J.  No.  5307,  2008  WL
509074, at *1 (Alaska App., February 27, 2008).

     3    Waring v. State, 670 P.2d 357, 365 n.15 (Alaska 1983).

     4     See  id.; State v. Bianchi, 761 P.2d 127, 129  (Alaska
App.  1988) (When a trial court is asked to suppress . . .  ,  it
must  review  the record and make factual findings.   In  such  a
case,  the  trial courts factual findings will be  upheld  unless
clearly erroneous. ).

     5     Cusack  v.  Cusack, 202 P.3d 1156, 1159 (Alaska  2009)
(quoting Millette v. Millette, 177 P.3d 258, 261 (Alaska 2008)).

     6     Keane  v.  Local Boundary Commn, 893 P.2d  1239,  1241
(Alaska  1995);  Arco Alaska, Inc. v. State, 824  P.2d  708,  710
(Alaska 1992).

     7     Lazy  Mountain Land Club v. Matanuska-Susitna  Borough
Bd. of Adjustment & Appeals, 904 P.2d 373, 382 n.50 (Alaska 1995)
(quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).

     8     The  federal search and seizure clause provides:   The
right  of  the  people  to  be secure in their  persons,  houses,
papers,  and effects, against unreasonable searches and seizures,
shall not be violated . . . .  U.S. Const. amend. IV.  Similarly,
the  state  counterpart provides: The right of the people  to  be
secure  in their persons, houses and other property, papers,  and
effects, against unreasonable searches and seizures, shall not be
violated. Alaska Const. art. 1,  14.

     9      See   Anchorage   Police  Dept  Employees   Assn   v.
Municipality  of  Anchorage,  24  P.3d  547,  550  (Alaska  2001)
(Alaskas  search and seizure clause is stronger than the  federal
protection  because  article I, section 14 is  textually  broader
than  the  Fourth Amendment . . . .); Ellison v. State, 383  P.2d
716, 717-18 (Alaska 1963).

     10    Anchorage Police Dept Employees Assn, 24 P.3d 547, 550
(Alaska 2001).

     11    State v. Jones, 706 P.2d 317, 321 (Alaska 1985).

     12    670 P.2d 357, 363 (Alaska 1983).

     13     Id.;  see also Terry v. Ohio, 392 U.S. 1,  27  (1968)
(creating a limited exception to the search and seizure  rule  to
permit   reasonable  searches  for  weapons  when  there   is   a
substantial interest in ensuring the safety of the police officer
and  others);  Coleman v. State, 553 P.2d 40,  46  (Alaska  1976)
(holding    that   investigatory   stops   are   constitutionally
permissible  in  circumstances  where  a  police  officer  has  a
reasonable  suspicion  that  imminent  public  danger  exists  or
serious harm to persons or property has recently occurred .  .  .
.).

     14    Romo v. Municipality of Anchorage, 697 P.2d 1065, 1067-
68  (Alaska App. 1985) (describing three categories of encounters
between  police  and  citizens: (1)  a  generalized  request  for
information,  (2) an investigatory stop supported by  articulable
suspicion, and (3) a full arrest).

     15    Id. at 1068 (internal quotation marks omitted) (quoting
Waring, 670 P.2d at 363).

     16    Id. (citing Waring, 670 P.2d at 364).

     17    Waring, 670 P.2d at 364; Abdou v. State, Mem. Op. & J.
No.  2850,  1994  WL 16196151,  at *3 (Alaska App.,  January  19,
1994).

     18     For  the purposes of this analysis, we assume that  a
reasonable person is also a person who is innocent of any  crime.
Romo, 697 P.2d at 1068 ([T]he reasonable person whose perceptions
are  under consideration is one who is innocent of any  crime.  A
person  who  considers  himself guilty of some  offense  probably
labors  under a number of psychological disadvantages  and  would
tend  to  treat any action, however harmless or innocuous,  by  a
police officer as threatening.).

     19    AS 28.35.182(b) (emphasis added).

     20    AS 28.35.182(d)(2).

     21    Jacobson v. State, 551 P.2d 935, 937 (Alaska 1976).

     22    999 P.2d 169, 176-77 (Alaska App. 2000).

     23    Waring v. State, 670 P.2d 357, 363 (Alaska 1983).

     24     We  recognize that a balance must be  struck  between
allowing  the  police to solicit assistance and cooperation  from
citizens  and providing protection against unreasonable seizures.
Normally, a confrontation analyzed under the Waring free-to-leave
test  is considered a seizure only if the officer added to  those
inherent pressures by engaging in conduct which a reasonable  man
would  view  as  threatening or offensive  even  if  coming  from
another  private citizen. Waring, 670 P.2d at 364 (quoting  3  W.
LaFave,  Search  and Seizure: A Treatise on the Fourth  Amendment
9.2,  at  53-54 (1978)); see also Gomez v. Turner, 672 F.2d  134,
142 (D.C. Cir. 1982) (recognizing that because reasons other than
a  fear of official sanction motivate a reasonable person to stop
and  cooperate with a police officer, a seizure will  only  occur
when  there is some additional conduct by the officer to overcome
the  presumption that a reasonable person is willing to cooperate
with a law enforcement officer).  This test is not implicated  in
this  case because the very fact that Trooper Bordner is a police
officer triggered the statute, rather than his direct actions.

     25    See, e.g., United States v. Laboy, 979 F.2d 795, 798-99
(10th  Cir.  1992); State v. Nelson, 8 P.3d 670, 672 (Idaho  App.
2000); State v. Hall, 115 P.3d 908, 917 (Or. 2005).

     26     Majaev  v.  State, Mem. Op. & J. No.  5307,  2008  WL
509074, at *5 (Alaska App., February 27, 2008).

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