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Brown v. State (1/13/2006) ap-2023

Brown v. State (1/13/2006) ap-2023

     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


) Court of Appeals No. A-8793
Appellant, ) Trial Court No. 4FA-02-688 Cr
v. )
) O P I N I O N
Appellee. ) [No. 2023 January 13, 2006]
          Appeal  from the Superior Court, Fourth  Judi
          cial   District,  Fairbanks,  Mark  I.  Wood,

          Appearances:   Marcia E.  Holland,  Assistant
          Public  Defender, Fairbanks, and  Barbara  K.
          Brink,  Public Defender, Anchorage,  for  the
          Appellant.  Kenneth M. Rosenstein,  Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          David  W. M rquez, Attorney General,  Juneau,
          for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          Probation Officer Shaun Davies was looking for  one  of
his  probationers,  Richard Wolters, so that  he  could  confront
Wolters about apparent violations of probation (failure to report
and  use  of  controlled substances).  Davies took  up  an  early
morning  surveillance outside Wolterss residence.  He saw  a  man
emerge from the residence and get into a cab.  Thinking that this
man  was Wolters, Davies called for police assistance in stopping
the cab.
          A  Fairbanks police officer stopped the cab, and Davies
arrived on the scene moments later.  But the passenger in the cab
was  not  the  sought-for Wolters, but rather Illya  Brown   who,
coincidentally, was a felony parolee under Daviess supervision.
          Shortly  after Davies arrived, Brown ran away from  the
scene of the traffic stop.  But before he ran away, Brown dropped
a   bag   containing  packets  of  cocaine  and  items  of   drug
          Brown was indicted for possessing this cocaine with the
intent   to   distribute   (third-degree   controlled   substance
misconduct  under  AS 11.71.030(a)(1)).  He  asked  the  superior
court  to  suppress the evidence against him,  arguing  that  the
probation officer and the police officer had no authority to stop
the  cab.   After  the superior court denied this  motion,  Brown
entered  a  Cooksey  plea,  reserving  his  right  to  renew  his
suppression arguments on appeal.1
          For the reasons explained here, we conclude that all of
Browns   arguments   are   either   unpreserved   or   meritless.
Accordingly, we affirm his conviction.

     Underlying facts
          In  late  December  2001,  Probation  Officer
Shaun Davies was trying to make contact with one of his
probationers, Richard Wolters.  Wolters had  apparently
violated the conditions of his probation by not staying
in  contact with Davies and by using cocaine.  (Wolters
had  recently  submitted  a urine  sample  that  tested
positive  for  cocaine.)  Davies had  been  telephoning
Wolters  and leaving messages for him, but Wolters  had
not returned any of these calls.
          In   the  early  morning  of  December   28th
(sometime  after  7:00 a.m.), Davies  again  telephoned
Wolters.  A man answered the telephone, but he  claimed
that  he  was  not Wolters.  The man told  Davies  that
Wolters had left for a doctors appointment.
          Despite  the  mans  claim  that  he  was  not
Wolters,  Davies  thought that he  recognized  Wolterss
voice.   Suspecting that he was being  tricked,  Davies
decided  to  drive  over to Wolterss residence  to  see
whether  Wolters was truly not at home.  Davies arrived
outside Wolterss residence at approximately 7:40  a.m..
A  few minutes later, Davies observed a man emerge from
the residence and get into a cab.  Davies could not see
this  mans  face because the man was wearing  a  hooded
outer  garment  and because the man was  huddled  over,
apparently holding things in his arms.  However,  given
the  circumstances, Davies believed that this  man  was
Wolters,  and  that Wolters was again trying  to  avoid
contact with him.
          Davies  got into his car and began  following
the  cab.   According  to his later  testimony  at  the
evidentiary hearing, Davies wished to make contact with
          Wolters, ask him why he was avoiding Davies, and
conduct  a search of his person.  Davies also testified
that,  based  on Wolterss violations of  his  probation
Wolterss  failure  to  report to Davies,  and  Wolterss
apparent  use of cocaine (based on the test  result  of
his urine sample)  Davies would have been authorized to
arrest Wolters.  See AS 33.05.070(a).
          While  Davies was following the cab, he  used
his   cell  phone  to  contact  the  Fairbanks   Police
Department and request their help in stopping the  cab.
In   response  to  this  request,  Officer   Perry   J.
Williamson performed a traffic stop of the cab.  Davies
was  driving  right behind Williamson when the  traffic
stop  was  made,  so Davies arrived on the  scene  only
seconds later.
          Almost  immediately,  the  passenger  emerged
from  the cab unbidden.  When the passenger got out  of
the  cab and into the light, both Davies and Williamson
saw that this passenger was not Richard Wolters.  (Both
men  were  acquainted with Wolters.)   Instead,  Davies
recognized  the  passenger as  Illya  Brown,  a  felony
parolee under his supervision.
          Brown  began  talking to Officer  Williamson,
but he also began backing up, with his right hand under
his  coat.  Williamson directed Brown to take his  hand
out  of his coat and to place his hands on the cab, but
Brown did not obey.  At this point, Williamson drew his
side  arm  and  directed  Brown  to  stand  still.   In
response, Brown ran away.
          Davies and Williamson chased Brown, but  they
could  not  catch him.  However, when the two  officers
returned  to the cab, they discovered a black knit  bag
containing  packets  of  cocaine  and  items  of   drug

Browns  argument in the superior court and  details  of
the superior courts ruling

          Following   his  indictment  for   controlled
substance misconduct, Brown asked the superior court to
suppress the black knit bag and its contents.   In  his
memorandum in support of the suppression motion,  Brown
argued  that even if Wolters had been the passenger  in
the cab, Davies would have had no authority to stop the
cab  (or  to  ask  the police to stop the  cab)  unless
Davies  had a reasonable suspicion that imminent public
danger  existed or [that] serious harm  to  persons  or
property  ha[d]  recently occurred   the  justification
required  for  investigative  stops  under  the  Alaska
Supreme Courts decisions in Coleman v. State and  Ebona
v. State.2
          In  other words, Brown argued that Davies  (a
probation officer) had no greater authority to  conduct
an  investigative stop of Wolters (a probationer  under
his  supervision) than the authority  that  any  police
          officer would possess to conduct an investigative stop
of  any  citizen.   In the words of Browns  memorandum,
Probation  Officer Davies authority  to  supervise  ...
Wolters  provided him with no broader right  to  direct
[the  police  to  stop the] cab ...  than  [the  right]
articulated  by Coleman ... .  Brown further  contended
that   if   the  Coleman  test  was  applied   to   the
circumstances  of his case, there was no  justification
for the stop of the cab because Davies had no suspicion
that ... Wolters ... was engaged in any form of illegal
          In  two  isolated sentences of  his  superior
court  memorandum, Brown asserted that Davies had  [no]
ability to identify ... the person he saw entering  the
cab,  and that Davies could not have believed that  the
person  he  saw  entering the cab was Richard  Wolters.
But  in  both  instances, immediately  after  asserting
this,  Brown told the superior court that the  accuracy
or  reasonableness  of Daviess identification  was  not
really the point:
     But  even  assuming that [the] identification
     [was]  properly made, ... the  stop  was  not
     based   [on]   reasonable   suspicion    that
     [Wolters]  was  engaging in illegal  conduct,
     [and thus] it was impermissible.
          .  .  .
[N]o basis existed for stopping the cab, even
assuming  that [Davies] legitimately believed
that  Mr. Wolters was the passenger  in  that
vehicle.   As a result, all evidence obtained
as  a result of the traffic stop initiated at
Mr. Davies request should be suppressed.

          (Browns  superior court memorandum,
augmented by a later supplemental memorandum,
presented  two additional arguments.   First,
Brown argued that even if the stop of the cab
was  lawful,  there was no justification  for
ordering Brown to place his hands on the  cab
and  remain  at the scene after the  officers
discovered that he was not Wolters.   Second,
Brown  argued  that  the officers  could  not
justify  their actions by relying  on  Browns
own   condition  of  probation  (a  condition
allowing  warrantless searches of his  person
and  any  vehicle under his control)  because
that   condition  of  Browns  probation   was
unconstitutional.   Brown  does   not   renew
either of these arguments in this appeal.)
          Superior Court Judge Mark  I.  Wood
held   an   evidentiary  hearing  on   Browns
suppression  motion.   At  the  end  of  this
evidentiary   hearing,   when   the   parties
summarized their positions, Brown renewed his
argument that the Coleman-Ebona test governed
the stop of the cab, and that the stop of the
cab  was thus unlawful because Davies had  no
independent basis to believe that any kind of
crime  had  been  committed ...  .   [Davies]
simply  was  exercising ...  his  supervisory
powers to make contact with a probationer.
          Brown also argued, essentially  for
the  first  time, that the stop  was  invalid
because  Davies  could  not  reasonably  have
mistaken Brown for Wolters:

     Defense Attorney:  Mr. Brown is a  dark-
complected  black male who  is  64  tall  and
weighs  235 pounds.  Mr. Wolters  ...  is  57
tall  and  weighs 175 pounds[, and he]  is  a
Caucasian male.  The dissimilarities  between
[their]   physical   appearances   ...    are
staggering and ... undeniable.  There  is  no
way  that Mr. Brown ... and Mr. Wolters could
be  mistaken  for  one  another.   Certainly,
there  is no way that [such a mistake]  could
have  happened ... if [Davies had made]  some
sort  of  reasonable effort ...  to  make  an

          Finally,  Brown  argued  that  even
though   Wolterss  conditions  of   probation
included  a  clause that made  him  (Wolters)
subject   to  suspicionless  searches,   this
condition  of probation did not make  Wolters
subject  to suspicionless seizures  (in  this
case, the traffic stop).  Brown asserted that
any  seizure  of his person had to  meet  the
Coleman-Ebona test  even if that seizure  was
performed  by a probation officer  attempting
to conduct an authorized suspicionless search
of  Browns person.  Browns attorney told  the

     Defense   Attorney:   [T]his   [was]   a
seizure,  and  not a search [falling]  within
the  scope of [Wolterss probation condition].
It  goes beyond any reasonable interpretation
of ... Mr. Wolterss [conditions of] probation
... .  [N]o authority ... to effect a seizure
a   traffic  stop   [arose]  under  the   ...
conditions of probation to which Mr.  Wolters
was subject.
     .  .  .

     The  Court:   Let  me  just  ask  you  a
question.  This is just thinking [out  loud],
but  it  seems to me that the right to search
[a   probationer]  necessarily  includes  the
right   to   detain   [the  probationer]   to
accomplish the search.

     Defense Attorney:  Well, Judge, I  think
there  is  a  ... significan[t]  [difference]
between [this case and] circumstances where a
probation officer shows up after a  stop  has
been effected for [an independent] reason and
[the  probation officer] instructs [a police]
officer to conduct a search pursuant  to  the
conditions of probation ... .

     The  Court:   So  you  [assert]  that  a
probation  officer  who wanted  to  search  a
probationer would not have the right to ask a
police  officer  to  detain  the  probationer
under any circumstances?

     Defense Attorney:  Well, not unless  ...
the  police officer had an independent  basis
for the initial [stop].

          After   hearing  these   arguments,
Judge Wood denied Browns suppression motion.
          Judge   Wood   acknowledged    that
Wolters and Brown did not look much like each
other.   The judge declared that if [the  two
men]  were  to  stand directly  side-by-side,
[nobody] would have any trouble telling  them
apart. However, Judge Wood then indicated how
Davies  might reasonably have mistaken  Brown
for Wolters:

     The Court:  Mr. Davies was worried about
Mr. Wolters ... because Mr. Wolters had ... a
hot  UA  [i.e.,  a urine sample  that  tested
positive for drugs] [and] because it appeared
that Mr. Wolters was trying to avoid him.  He
was  [also] worried ... because he had called
up  [Wolterss] house, and the voice  that  he
heard on the other end sounded similar to Mr.
Wolterss ... .  [Davies] even called  him  on
it,  and the guy denied [being Wolters].  But
Mr.  Davies was convinced [that] it  was  Mr.
Wolters,  and [that] Mr. Wolters was  getting
ready   to  leave  his  residence.   And   so
[Davies] changed [his] clothes, went  out  to
Mr.   Wolterss   residence,   and   took   up
surveillance [from at least 50] yards away.
     .  .  .

     [T]he upstairs apartment [we are talking
about]  is  covered and dark, and  theres  no
light  ...  at  the top of the  stairs.   ...
[A]nd  remember [that] this is December  28th
...  ,  so were talking about dark winter  in
Fairbanks  at  ... 7:40 in the  morning.   An
individual   comes  out  of   that   upstairs
apartment, and ... a couple of seconds [later
hes]  in the cab.  Hes hooded and, you  know,
everybody  [looks] stocky in the  winter  ...
because of the nature of the clothing that we
wear.   When  youre wearing a  hooded  parka,
everybody looks stocky.

          Judge  Wood conceded that, had  the
circumstances  been  a little  different   if
[Brown] had come out [of the apartment]  with
somebody else, [so] there was some [point] of
reference  ... to measure [his] height,  [or]
if  it  [had been] summer, [so that] the  man
didnt  have  a coat on  then the judge  might
well  have granted Browns suppression motion.
Judge   Wood  stated  that,  if  these  other
circumstances had been present, [the  defense
attorneys]  excellent  presentation  on   the
differences  between  Mr.  [Brown]  and   Mr.
Wolters would have made a huge difference  in
this case.
          But   Judge  Wood  concluded  that,
given  the  dark,  the distance,  the  winter
[clothing], the location, and the very  brief
time  that  Mr.  [Brown] was  observed,   Mr.
Davies  in  his mind ... thought it  was  Mr.
Wolters  coming  out [of  the  apartment  and
getting into the cab].
          Judge  Wood then turned  to  Browns
argument   that,  even  though  a   probation
officer  might  have the right  to  search  a
probationer, a probation officer has no right
to    stop   and   temporarily   detain   the
probationer in order to perform this search:

     The Court:  I disagree with [the defense
attorney].  I think that the right to  search
also involves the right to reasonably detain.
[And] I think that the detention of the [cab]
was reasonable under the circumstances.

That is, Judge Wood concluded that Davies had
the  authority to stop the vehicle  in  which
Wolters  was riding, even in the  absence  of
particularized suspicion, simply  to  perform
the   suspicionless  search   authorized   by
Wolterss conditions of probation.
          Judge   Wood  then  held,  in   the
alternative,  that  the  vehicle   stop   was
justified because Davies reasonably  believed
that  Wolters had violated the terms  of  his

     The  Court:  Alternatively, I feel  that
Officer  Davies  had a more  than  reasonable
suspicion  that Mr. Wolters ... had  violated
the  conditions  of his probation.   [Wolters
was]  a  drug  seller [who was convicted  of]
misconduct involving controlled substances in
the third degree.  [He had] a hot UA, [and he
was]   having  difficulties  contacting   his
probation  officer.   ...   [Y]ouve   got   a
convicted   felon   in   violation   of   his
probation,  and  ... thats a  serious  thing.
And  thats the type of thing [that]  we  want
our    probation   officers   stopping    and
contacting  [their] probationers about.   And
so  I think that theres reasonable grounds to
contact Mr. Wolters.

          On these alternative grounds, Judge
Wood  concluded  that the  traffic  stop  was
          (This  was  not the  end  of  Judge
Woods analysis of the case, but his remaining
remarks   were  devoted  to  the   additional
issues, described above, that Brown does  not
pursue on appeal.)

Browns arguments on appeal, and our analysis of this

     To  analyze the legality of the stop in  this
case,  it  is  useful to begin with a hypothetical
situation   in  which  Wolters  was   indeed   the
passenger  in  the cab and Davies, acting  without
police  assistance, flagged down  the  cab  in  an
attempt  to  speak  to Wolters  about  his  recent
violations of probation and to conduct the  search
authorized by Wolterss conditions of probation.
     In  his  brief  to  this  Court,  Brown  (now
represented  by a different attorney) argues  that
even  when a probationer is subject to a probation
condition  that seemingly authorizes  a  probation
officer  to  conduct  suspicionless  searches,   a
probation officer has no legal authority to search
a  probationer unless the officer has a reasonable
suspicion   that  the  probationer  is   currently
engaged in criminal behavior.3
          And, based on this assertion that Davies  had
no  authority  to search Wolters, Brown concludes  that
Davies (even if acting alone) had no authority to  stop
the  cab  in  which Wolters was believed to be  riding:
Given that there was no clear legal authority [for  Mr.
Davies] to search Mr. Wolters, there certainly  was  no
legal  authority to rely on the search  conditions  [of
          Wolterss probation] to ... seize a moving vehicle [in
which Wolters was riding].
          Brown  is  wrong about the extent of  Daviess
authority   to   search  Wolters.    Because   Wolterss
conditions of probation authorized Davies to conduct  a
suspicionless  search, no particularized suspicion  was
necessary.   In  Soroka v. State, 598 P.2d  69  (Alaska
1979), the Alaska Supreme Court declared:
          If   the   conditions  of  [a   persons]
     probation [authorize] searches on demand  ...
     ,   no   showing  of  probable   cause   [is]
     necessary.   [Citations  omitted]    Searches
     authorized  in  connection  with  grants   of
     probation  or parole may be executed  without
     the  need  for  additional justification,  as
     long as they are reasonably conducted and not
     made  for  purposes of harassment.  Roman  v.
     State,  570  P.2d  [1235,]  1242  and  n.  19
     [(Alaska 1977)].
Soroka, 598 P.2d at 71 n. 5 (citations omitted).  See also State
v.   James,   963  P.2d  1080,  1082  (Alaska   App.   1998)
(recognizing  and  applying  this  aspect  of   the   Soroka
     Brown   insists  that  the  federal  and   the   Alaska
constitutions    prohibit    suspicionless    searches    of
probationers, even when a condition of probation purports to
authorize such searches.  But Brown does not mention  Soroka
in  his  opening brief, nor does he mention  Soroka  in  his
reply  brief, even though the States brief explicitly relies
on the passage from Soroka that we have just quoted.
          In  any  case, Browns argument is not preserved because
it  was  never  made to the superior court.  As explained  above,
Browns  trial  attorney  conceded  that  Wolterss  conditions  of
probation  authorized suspicionless searches, but he argued  that
the  probation  officers  authority to  engage  in  suspicionless
searches  did not confer a corresponding authority to  engage  in
seizures (a vehicle stop or other form of investigative stop)  to
conduct  these  searches.   Judge Wood  rejected  this  argument,
ruling  that  the  right  to search also involves  the  right  to
reasonably detain.
          Following  Judge Woods ruling, Brown entered a  Cooksey
plea  that authorized him to renew, on appeal, the arguments that
he presented to Judge Wood.  But Brown is not authorized to raise
new arguments.
          We  therefore  turn  to  the argument  that  Brown  did
preserve:  the argument that even though a probation officer  may
be  authorized  by  the  conditions of  probation  to  conduct  a
suspicionless  search of a probationer, this authority  does  not
include the right to temporarily seize and detain the probationer
for the purpose of conducting the search.
          For  this  proposition, Brown relies primarily  on  our
decision in Reichel v. State, 101 P.3d 197 (Alaska App. 2004).
          In  Reichel,  we  were confronted with a  situation  in
which  police  officers,  acting  independently  of  a  probation
officer,  performed an investigative stop of a  probationer  whom
the  officers reasonably suspected of violating (or  having  just
violated)  the conditions of his probation, but in a manner  that
did  not  constitute  a  new crime.  (The officers  observed  the
probationer  in  a  bar,  and they suspected  that  he  had  been
          In  Reichel,  the State took the position  that  police
officers have the authority (even when operating independently of
a  probation  officer)  to  perform an investigative  stop  of  a
probationer  if  the suspected violation of probation  meets  the
Coleman-Ebona  test:   that is, if the  violation  of  probation,
although not in itself a crime, nevertheless involves an imminent
public danger or recent serious harm to persons or property.5  We
ultimately  concluded that we did not need to decide  whether  to
endorse  the  States proposed rule of law:  under  the  facts  of
Reichel, the Coleman-Ebona test was not met, and thus the  States
argument was moot.6
          Brown  appears to contend (particularly  in  his  reply
brief) that Reichel established the rule that police officers who
are  acting independently of probation officers have no authority
to  conduct  an  investigative stop of a probationer  unless  the
police   have  reasonable  suspicion  that  the  probationer   is
violating  (or has just violated) the law.  (This is  a  mistaken
interpretation  of  Reichel:  as we explained  in  the  preceding
paragraph, Reichel does not decide this question.)
          Brown  then  asks us to expand this purported  rule  so
that   the   same  requirement  (the  requirement  of  reasonable
suspicion  of a crime) would apply to probation officers  and  to
police  officers  acting at the direction of probation  officers.
In  other words, Brown argues that neither probation officers nor
police  officers acting at their behest can subject a probationer
to  a suspicionless investigative stop.  Brown contends that even
when a probationers conditions of probation authorize a probation
officer  to  conduct a suspicionless search of  the  probationers
person,  neither the probation officer nor police acting  at  the
probation  officers  direction  are  authorized  to  detain   the
probationer  in  the  absence of reasonable  suspicion  that  the
probationer is violating (or has just violated) the criminal law.
          The  Alaska Supreme Courts decision in Roman v.  State,
570  P.2d  1235 (Alaska 1977), indicates that Brown is wrong  and
that  Judge Wood was correct:  a probation officers authority  to
search  carries with it the authority to temporarily  detain  the
probationer in order to conduct the search.
          The  defendant in Roman was on parole from a conviction
for possession of heroin.  After Romans parole officer received a
tip that Roman had used heroin the day before, the parole officer
went  to  the  Fairbanks airport (where Roman was waiting  for  a
flight)  to  obtain  a urine sample from Roman.   (Romans  parole
conditions obliged him to provide urine samples when requested to
do  so by a parole officer.)  Enlisting the aid of another parole
officer  and  an airport security officer, Romans parole  officer
detained  Roman and took him to a restroom in an attempt  to  get
the  urine  sample.  After Roman declared that he was  physically
unable to provide the requested sample, the parole officer  moved
          Roman from the restroom to the customs area, where the parole
officer performed a search of Romans person.7
          The supreme court upheld the legality of these actions.
In its decision, the court indicated that both the search and the
detention to perform the search were proper:
The right to request specimens for urinalysis
and to search [a parolee] and his quarters at
reasonable  times and in a reasonable  manner
to  assure  that  he would  not  continue  to
possess  illegal  drugs is necessary  to  the
proper functioning of the parole system.  The
right to perform such searches is limited  to
parole  officers  and peace  officers  acting
under their direction.  It would appear  that
all  of  these  conditions were  met  in  the
search  of  Mr. Roman; therefore,  we  cannot
find that the parole authorities were clearly
mistaken  in  authorizing the search  and  in
conducting   it  under  these  circumstances.
Romans  inability to furnish a  specimen  for
urinalysis  prevented use of  that  means  of
ascertaining whether he was using drugs; and,
in  view  of his imminent departure,  it  was
reasonable to search his person at that time.

Roman, 570 P.2d at 1243 (emphasis added) (footnotes omitted).
Given the supreme courts decision in Roman, we conclude
that   if   a   probationers  conditions  of  probation
authorize  suspicionless searches of  the  probationers
person, a probation officer who wishes to exercise this
authority  has  the  concurrent  right  to   stop   and
temporarily detain the probationer in order to  conduct
the  search  (subject to the limitations  expressed  in
Roman:   that  the  search  must  be  conducted  at   a
reasonable  time and in a reasonable manner,  and  that
the  search  must not be conducted for the  purpose  of
harassing the probationer).8
Judge  Wood  expressly found that Daviess  decision  to
stop  the  cab  was reasonable under the circumstances,
and this finding is supported by the record.  Moreover,
there  is no suspicion of harassment here.  Judge  Wood
found   and  Brown  does not contest  that  Davies  had
reasonable  grounds for believing that Wolters  was  in
violation of his probation, both for failing to  report
and  for  using drugs (because of the hot  urinalysis).
We  therefore hold that Davies could lawfully decide to
conduct a temporary investigative stop of the cab.
The  next issue is whether Davies could lawfully enlist
the  assistance of the police to help him conduct  this
investigative stop.  Brown appears to argue  that  even
if   Davies   might   lawfully   have   conducted   the
investigative  stop himself, the stop  became  unlawful
when  Davies  asked the police to help him.   That  is,
even  if  the  Coleman-Ebona test would  not  apply  to
Daviess  own  actions, the cooperation  of  the  police
triggered the Coleman-Ebona requirement.
          Brown  offers  no  legal authority in support  of  this
proposition (other than Reichel, a decision which we conclude  is
not pertinent).  And Browns argument is at odds with the accepted
law in this area:
               [We turn now to the question of] whether
          the  less  demanding Fourth Amendment  limits
          [that   apply   to  searches   conducted   by
          probation  and  parole officers]  apply  even
          when there was some police involvement in the
          activity ... .
               Generally,  ... searches of probationers
          and  parolees [that do not conform] to  usual
          Fourth  Amendment standards have been  upheld
          notwithstanding the fact that there was  some
          degree  of cooperation or joint participation
          by  the  police  and  a probation  or  parole
          [officer].    There  is  little   reason   to
          question this result when the facts show that
          [the]  police participation was brought about
          at  the  instigation of the probation officer
          or  parole  officer, for  [the  officer]  may
          enlist   the   aid  of  police  officers   in
          performing his duty.
Wayne  R.  LaFave, Search and Seizure:  A Treatise on the  Fourth
Amendment (4th ed. 2004),  10.10(e), Vol. 5, pp. 470-71 (internal
citations omitted).
          As  the  Eighth  Circuit recently  declared  in  United
States  v.  Brown,  346 F.3d 808 (8th Cir.  2003),  [T]he  Fourth
Amendment  does not require probation officers to choose  between
endangering  themselves by searching alone  [or,  alternatively,]
foregoing  the  search  because they  lacked  the  resources  and
expertise  necessary to search alone safely.9   We  believe  that
this  principle  is particularly apt when the probation  officers
search requires the investigative stop of a motor vehicle.
          We note that, in Roman, the parole officer enlisted the
aid  of  the  airport  security police; the supreme  court  never
indicated  that  the participation of airport  security  officers
altered its analysis of the case in any way.
          Accordingly,  we hold that Daviess decision  to  enlist
the  aid  of the police in effecting the stop of the cab did  not
alter the legality of the stop.
          Finally,  Brown  argues that the stop of  the  cab  was
illegal  because  Davies did not have probable cause  to  believe
that  it  was  Wolters  (his probationer) who  emerged  from  the
apartment and got into the cab.
          This  argument was not presented to Judge  Wood.   From
the  beginning,  it was obvious that Davies had  made  a  mistake
concerning the identity of the man in the cab.  But, as explained
above,  Browns written pleadings barely mention Daviess  mistake.
Only  two isolated sentences of Browns memorandum refer  to  this
          mistake and, in both instances, the reference is immediately
followed  by an assertion that Daviess mistake was irrelevant  to
the decision of Browns suppression motion.
          We  acknowledge  that Browns argument  changed  at  the
close  of  the evidentiary hearing.  When Browns attorney  argued
the  suppression  motion orally at the end  of  the  hearing,  he
expressly  asserted  that  the stop of the  cab  was  unjustified
because  Davies acted unreasonably when he concluded that Wolters
was  the  man  he  had seen get into the cab.  Specifically,  the
defense attorney told Judge Wood:  There is no way that Mr. Brown
...   and   Mr.  Wolters  could  be  mistaken  for  one  another.
Certainly,   there  is  no way that [such a mistake]  could  have
happened ... if [Davies had made] some sort of reasonable  effort
... to make an identification[.]
          But,  as  explained  above,  Judge  Wood  rejected  the
defense  attorneys contention; the judge found  that,  under  the
circumstances, Daviess mistake was reasonable.  Judge Wood  noted
that  Davies  reasonably expected that it would  be  Wolters  who
emerged from Wolterss residence at 7:40 in the morning.  And when
the  man did come out of Wolterss apartment and got into the cab,
Davies  got  a  glimpse  of him for only  a  couple  of  seconds.
Moreover,  it  was  dark,  and Brown  was  wearing  heavy  winter
clothing that hid his face and concealed his physique.
          Thus,  the  record  shows that Judge  Wood  found  that
Davies  acted  reasonably  that Davies had at least a  reasonable
suspicion  that the man he saw get into the cab was Wolters,  the
probationer  who  had  been avoiding him  and  who  had  recently
submitted a dirty urine sample.
          Brown  argues that, given the facts of this case, Judge
Woods resolution of this issue was erroneous.  Brown asserts that
Davies  unreasonably jumped to the conclusion that  the  man  who
came  out of Wolterss apartment was indeed Wolters.  Brown argues
that  Davies should have done more to verify the identity of this
man before he requested that the police stop the cab.
          After  reviewing the record, we conclude that the facts
of  this case (viewed in the light most favorable to Judge  Woods
ruling) adequately support the judges ruling that Daviess mistake
was  reasonable  under the circumstances  that Davies  reasonably
(albeit erroneously) suspected that the man who emerged from  the
apartment and got into the cab was Wolters.
           Brown  argues, in the alternative, that  a  reasonable
suspicion  was  not  enough  to  justify  Daviess  actions   that
probable  cause was required.  But the words probable  cause  are
found  nowhere in Browns trial court pleadings or in the argument
that Browns trial attorney presented orally to Judge Wood at  the
close  of  the evidentiary hearing.  Browns trial attorney  never
argued  that probable cause was the legal test to be  applied  to
Daviess level of knowledge concerning the identity of the man  in
the  cab.   Instead,  as  just explained, Browns  trial  attorney
argued  that  Davies  had  acted  unreasonably,  and  Judge  Wood
rejected that argument.
          The  record  therefore indicates that Brown  failed  to
preserve his argument that the proper standard is probable cause.
However,  at  oral  argument, Browns appellate attorney  asserted
that the probable cause argument was indeed preserved because (1)
Browns  trial  attorney argued to Judge Wood that the  applicable
standard was absolute certainty, and thus (2) probable cause  was
merely a lesser version of this proposed standard.
          There  is  nothing  in  the  record  to  support   this
contention.   Browns trial attorney never argued that  the  State
was  obliged to prove that Davies was absolutely certain that the
man  in  the cab was Wolters.  (Such an argument would have  been
notable:   we are aware of no issue of fact to which an  absolute
certainty  standard of proof applies.  Even criminal  convictions
need  not  be  proved  to  an absolute  certainty.)   Rather,  as
explained  above, Browns attorney argued that Daviess mistake  of
fact was unreasonable.
          Judge  Wood  was  never asked to  consider  (much  less
decide)  the separate contention that, even if Davies  reasonably
suspected that the man in the cab was Wolters, Daviess  level  of
knowledge  failed to amount to probable cause.  For this  reason,
we conclude that this argument was not preserved for appeal.
          At  oral argument, Browns appellate attorney raised one
additional  contention:   she  asserted  that  Judge  Wood  never
actually  found that Daviess mistake was reasonable  i.e.,  never
found that Davies acted reasonably when he concluded that Wolters
was the man he saw get into the cab.
          It  is  true  that  Judge Wood never used  these  exact
words.   But when Judge Woods remarks are read in the context  of
the  argument  to  which  he was responding  (the  argument  that
Daviess mistake was unreasonable), it is obvious that Judge  Wood
was  explaining  why  he  rejected  this  argument  and  why   he
concluded, instead, that Davies had acted reasonably.
          We  further  note  that Browns current  argument  (that
Judge  Wood made no such finding) is at odds with the content  of
Browns  opening brief.  Browns brief repeatedly adopts  the  view
that  Judge  Wood  did, in fact, rule that  Daviess  mistake  was
          In  Paragraph II of the Issues Presented section of the
opening  brief,  Browns appellate attorney frames  the  issue  as
whether  Judge  Wood erred when [he] found that  the  [probation]
officer  had  made  a reasonable mistake in concluding  that  his
[probationer] was in [the] vehicle[, given the fact that] the man
in  the  vehicle [i.e., Brown] was a large black man [while]  the
person  who  was the target of the [probation] officers  interest
[i.e., Wolters] was a small white man.
          In  the  Statement of the Case section  of  the  brief,
Browns attorney likewise declares that Judge Wood found that  the
probation officer was mistaken that the individual in the cab was
Mr.  Wolters, but that the mistake was understandable  given  the
          And, finally, in Part II of the Argument section of the
brief,  Browns  appellate attorney states that  the  trial  court
found that Mr. Daviess conclusion that it was Mr. Wolters in  the
cab,  although  mistaken, was nonetheless reasonable.   Later  in
that  same  section, Browns attorney declares that [Judge  Woods]
conclusion that Mr. Davies had been reasonable in his efforts  to
determine  who was in the cab is wrong.  [Daviess]  actions  were
not reasonable.
          In  other  words, to the extent that Brown  now  argues
that Judge Wood never found that Davies acted reasonably when  he
mistook  Brown  for Wolters, this contention was raised  for  the
first time at oral argument, and it is therefore waived.10


          We  have  considered all of Browns arguments,
and we have concluded that they are either meritless or
unpreserved.    Accordingly,  the  judgement   of   the
superior court is AFFIRMED.

     1Cooksey v. State, 524 P.2d 1251 (Alaska 1974).

2Coleman,  553  P.2d 40, 46 (Alaska 1976); Ebona,  577  P.2d
698, 700-01 (Alaska 1978).

3Browns brief asserts:  [Judge Woods] reliance on the ...
probation  conditions  imposed  on  Mr.  Wolters   [is]
problematic  in  that,  even if Mr.  Wolters  had  been
personally  contacted  by Mr. Davies,  there  does  not
appear to be any legal authority to support a search of
Mr. Wolterss person, residence, or vehicle unless there
was  reasonable  suspicion of criminal  activity.   Mr.
Davies   had  no  information  that  Mr.  Wolters   was
currently engaging in criminal activity on the day that
Mr. Davies directed that the [cab] be stopped.

4Reichel, 101 P.3d at 198.


     6Id. at 202-03.

7Id. at 1237-38.

8Roman, 570 P.2d at 1242.

9Brown, 346 F.3d at 812.

     10Kellis  v.  Crites, 20 P.3d 1112, 1114-15  (Alaska  2001);
Edwards v. State, 34 P.3d 962, 969-970 (Alaska App. 2001).

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