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McQuade v. State (3/10/2006) ap-2037

McQuade v. State (3/10/2006) ap-2037

     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

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) Court of Appeals No. A-8754
Appellant, ) Trial Court No. 3AN-02-8030 Cr
v. )
Appellee. )
                              )              Court of Appeals No.
                                                     Appellant,	)
Trial Court No. 3AN-02-8031 Cr
                  v.	)
                              )                       O  P  I   N
I  O  N
                                                      Appellee.	)
No. 2037    March 10, 2006

          Appeals  from the Superior Court, Third  Judi
          cial  District,  Anchorage,  Larry  D.  Card,

          Appearances:   Sharon Barr, Assistant  Public
          Defender,   and  Barbara  K.  Brink,   Public
          Defender,  Anchorage,  for  Appellant   Bruce
          Scott  McQuade.   Herman G. Walker  Jr.,  Law
          Offices  of  Linda A. Lim¢n,  Anchorage,  for
          Appellant  Forrest U. Johnston.   Terisia  K.
          Chleborad, 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.

          Bruce  Scott  McQuade and Forrest  U.  Johnston  appeal
their convictions for first-degree robbery.  McQuade and Johnston
contend that they were subjected to an illegal traffic stop,  and
that  all  evidence  stemming from that traffic  stop  should  be
suppressed.  For the reasons explained here, we conclude that the
traffic  stop  was  justified because the police  had  reasonable
suspicion  that McQuades and Johnstons vehicle was  fleeing  from
the  scene  of  a  just-committed robbery.  We  therefore  affirm
McQuades and Johnstons convictions.

     Underlying facts
               At   2:43  a.m.  on  September  6,  2002,   a
     dispatcher   with   the  Anchorage  Police   Department
     notified  officers that a robbery had just taken  place
     at  the Williams gas station on Huffman Road, near  the
     New  Seward  Highway.  The suspect was described  as  a
     stocky  white  male, 56 to 58 tall, wearing  dark  blue
     sweat  clothes and a heavy dark jacket,  with  a  white
     cloth  over his face.  The dispatcher advised  officers
     that  this individual had used a finger in [his] pocket
     to  imply possession of a gun.  Because the store clerk
     told  the police that the robber had departed on  foot,
     the   police  dispatch  did  not  contain   a   vehicle
          The  description of the robber and his  modus
operandi  (i.e.,  the robbers use of  an  implied  gun)
struck  a chord with Police Sergeant Chris Sims.   Sims
had  assisted in the investigation of a similar robbery
at  another gas station (the Chevron station located at
the corner of Fireweed Lane and the New Seward Highway)
one  week  earlier.   This robbery  remained  unsolved.
However,  during  the  investigation  of  the   Chevron
robbery, a police dog had tracked the robbers scent  to
a  nearby  parking  lot, where the  trail  ended   thus
leading  the  police to conclude that  the  robber  had
entered a waiting vehicle.
          Based  on  the locations of the two robberies
(gas  stations situated along the New Seward  Highway),
and  working  under  the assumption that  the  Williams
robber had likewise fled to a waiting vehicle, Sergeant
Sims concluded that the robbery suspect would likely be
driving north on one of Anchorages two main north-south
arteries:   Minnesota Drive or the New Seward  Highway.
Sims  decided  to  set up an observation  post  on  the
Dowling  Road  overpass of the New Seward  Highway,  to
watch for north-bound traffic.
          Approximately five to six minutes  after  the
robbery dispatch was broadcast, Sims positioned his car
on the Dowling Road overpass.  During the three to four
minutes  that  followed, Sims observed fewer  than  ten
cars  pass  by going north.  Then a small sedan  caught
his attention.  The car, which had been traveling at or
near the speed limit, slowed down as it approached  his
patrol  vehicle.  Sims could see that the car  had  two
occupants:  two white males with closely shaved  heads.
These  two men avoided looking at Sims, and neither  of
them was wearing a seatbelt.
          Sims decided to follow this sedan.  He pulled
out  into the left-hand lane of the highway, behind the
sedan.  His intention was to catch up to the sedan  and
more  closely  observe  the cars  occupants  and  their
          But as the two cars (the sedan and the police
patrol  vehicle) approached the vicinity of  the  Tudor
Road  exit, the sedan suddenly crossed [from the  left-
hand  lane]  over into the right[-hand] lane  and  then
immediately  [onto] the Tudor exit  ramp.   Sims  later
could not recall whether the sedan signaled this abrupt
lane  change, but he testified that, under the  traffic
laws,  drivers  are  required to signal  for  at  least
100  feet  before changing lanes  and, here, the  sedan
crossed two lanes within that short distance.
          Sims  stated that he believed the  driver  of
the  sedan  was trying to avoid him, and this  behavior
heightened   his  suspicions.   However,  despite   the
traffic  violation (the failure to properly signal  the
lane  change  and exit from the highway), Sims  decided
not  to pull the car over immediately  because, at that
point, he believed he was dealing with something a  lot
more significant than just a traffic violation.
          As the two cars exited the New Seward Highway
onto  Tudor  Road,  with the patrol car  following  the
sedan,  Sergeant  Sims observed the  passenger  in  the
sedan moving around in his seat.  Sergeant Sims radioed
his  dispatcher that he believed the sedan was involved
in  the  Huffman Road gas station robbery, and that  he
was  looking for a well-lit place to conduct a  traffic
          At 2:56 a.m.  that is, thirteen minutes after
the  report of the robbery was broadcast  Sergeant Sims
activated  his emergency lights, called in the  license
plate number of the sedan, and conducted a traffic stop
at the intersection of Tudor Road and Bragaw Street.
          When  Sims approached the drivers window,  he
noticed  that the passenger (later identified as  Bruce
McQuade) was wearing dark blue sweat pants and  a  dark
blue  sweat top.  In addition, there was a heavy  black
jacket lying on the back seat, and this jacket appeared
to be covering some items.  The driver of the sedan was
identified as Forrest Johnston.
          After  seizing  the  sedan  and  obtaining  a
search  warrant,  the police searched the  vehicle  and
found $60 in cash, including a distinctive $5 bill with
an  orange stain that the Williams store clerk had said
was  stolen during the robbery.  The police also  found
two pairs of gloves, a hat, a white T-shirt, and a navy
          After McQuade and Johnston were indicted  for
first-degree  robbery,1  they  moved  to  suppress  the
evidence  found  in  the sedan.  McQuade  and  Johnston
argued   that  Sergeant  Sims  had  lacked   reasonable
suspicion to stop them as robbery suspects, and that he
had  lacked probable cause to stop them for  a  traffic
violation.   In  addition, Johnston (but  not  McQuade)
argued that the traffic stop was pretextual.
          In  response to this suppression motion,  the
superior   court   Judge  Larry  D.   Card    held   an
evidentiary   hearing  to  investigate   McQuades   and
Johnstons  claims.  Sergeant Sims was the sole  witness
at this hearing.
          After  hearing  Simss testimony,  Judge  Card
denied  the defendants motion to suppress.  Judge  Card
found that Sims had had a reasonable suspicion that the
occupants of the car were involved in the Huffman  Road
gas  station  robbery.  The judge also found  that  the
driver  of the sedan had committed a traffic infraction
when  he abruptly exited the New Seward Highway at  the
Tudor Road off-ramp.

The traffic stop was based on reasonable suspicion that
one or both of the occupants of the sedan were involved
in the just-committed robbery

          As  explained  above, Judge Card  found  both
that there was reasonable suspicion for the stop (based
on  the recent robbery) and that the stop was justified
because the officer saw the driver of the sedan  commit
a traffic infraction.
          With  regard  to  the traffic infraction,  it
appears  that  Judge  Card was correct.  Under  13  AAC
02.200(a), a driver making a right turn must travel  as
close as practicable to the right-hand curb or edge  of
the  roadway both during the approach to the  turn  and
while executing the turn (except when a traffic-control
device  requires  otherwise).   According  to  Sergeant
Simss  testimony,  McQuades  and  Johnstons  sedan  was
traveling  in  the  left-hand lane of  the  New  Seward
Highway, and then it veered suddenly across the  right-
hand  lane  and  onto the Tudor Road exit  ramp.   This
maneuver appears to have violated 13 AAC 02.200(a).
          We  acknowledge that, according to the record
in  this  case, Sims did not subjectively rely on  this
traffic infraction when he stopped the sedan.   But  if
Sims observed the driver of the sedan violating 13  AAC
02.200(a), it does not matter whether Sims subjectively
          relied on this rationale for the traffic stop.  As the
Court  recognized  in Hamilton v. State,  59  P.3d  760
(Alaska App. 2002), the State can rely on an after-the-
fact justification [for an investigative stop], so long
as  the facts known to the officers at the time of  the
...  stop  [were]  sufficient to  establish  the  legal
foundation for this justification.  Id. at 764.
          However,  we  are  hesitant  to  definitively
resolve  the issue of whether the driver of  the  sedan
(Johnston)  violated 13 AAC 02.200(a); the  parties  do
not discuss this particular traffic regulation in their
briefs,  and  this regulation has not  previously  been
construed  in  a published Alaska appellate  decision.2
     Moreover,   we   conclude   that   we   need   not
resolve  this issue, because we agree with Judge  Cards
second rationale for upholding the traffic stop:   Sims
had  reasonable  suspicion that  one  or  both  of  the
occupants  of  the  sedan were involved  in  the  just-
committed robbery.
          Under  Alaskas Coleman test, a police officer
may  perform  an investigative stop  i.e.,  temporarily
detain a person for questioning  when the officer has a
reasonable suspicion that imminent public danger exists
or  that  serious  harm  to  persons  or  property  has
recently occurred.3  In this case, McQuade and Johnston
concede  that  the  crime  of robbery  qualifies  as  a
sufficient  harm to persons or property to satisfy  the
Coleman test.  However, McQuade and Johnston argue that
the  police lacked reasonable suspicion that  they   or
rather, that the as-yet-unidentified occupants  of  the
sedan   had  anything  to  do with  the  just-committed
          To satisfy the reasonable suspicion standard,
an  officer  must have some minimal level of  objective
justification  for  making the stop.4   This  objective
justification must be something more than  an  inchoate
and  unparticularized suspicion or hunch.5  The officer
must be able to point to specific and articulable facts
which,  taken  together with rational  inferences  from
those facts, reasonably warrant [the] intrusion.6
          Here,  one  could  argue that  Sergeant  Sims
began  with just a hunch  the hunch that the person  or
persons  who  committed  the  robbery  of  the  Chevron
station  one week earlier had just robbed the  Williams
station,  and  that the robbers would be  driving  away
from  the  scene  of the robbery to  the  north  (i.e.,
toward the center of Anchorage) along one of the  major
north-south arteries.
          However,  events  soon began  to  corroborate
Simss hunch.  Traffic along the New Seward Highway  was
sparse at three oclock in the morning, and McQuades and
Johnstons   sedan   passed  by   Simss   Dowling   Road
observation  post approximately ten minutes  after  the
robbery was reported  in other words, within the window
of  time  during which one might expect the robbers  to
          pass by.  The sedan was occupied by two white males
which was consistent with the hypothesis that the sedan
contained the robber (described by the store clerk as a
white male) and a get-away driver.
          The  sedan  slowed down as  it  passed  Simss
patrol  car   suggesting that the driver had  seen  the
patrol  car  but the two men in the sedan did not  look
at   the   patrol   car  (behavior  that   Sims   found
noteworthy).  In addition, the two men were not wearing
seat  belts  a possible indication that they had gotten
into the car in haste.
          As we already described, as soon as the sedan
went  past, Sims pulled his patrol car onto the highway
and  began  following the sedan as it traveled  in  the
left-hand  lane.  Sims was preparing to pull  alongside
the  sedan to get a better look at the driver  and  the
passenger  when  the sedan abruptly left  the  highway,
cutting across the right-hand lane and taking the Tudor
Road  exit  ramp  (the very next exit as  one  proceeds
north  from  Dowling  Road).  Sims concluded  that  the
driver  of  the  sedan  was  attempting  to  avoid  his
scrutiny.    Under  the  circumstances,  this   was   a
reasonable conclusion.
          Sims followed the sedan up the exit ramp  and
then onto Tudor Road, headed east.  Sims could see  the
passenger  moving around in his seat.  At  this  point,
Sims  advised  his  dispatcher  that  he  believed  the
occupants  of  the sedan were involved in the  robbery,
and that he was preparing to stop the sedan as soon  as
he  arrived at a well-lit location  which turned out to
be the intersection of Tudor and Bragaw.
          Based  on  the observations and circumstances
we  have just described, Sergeant Sims had more than an
inchoate  and unparticularized suspicion or hunch  that
the  occupants  of  the  sedan  were  involved  in  the
robbery.   The  timing of the sedans arrival  at  Simss
observation post on Dowling Road, the behavior  of  the
driver  and  the passenger when they saw Sims  and  his
patrol  car,  the sedans ensuing abrupt departure  from
the highway, and the unusual movements of the passenger
as  Sims  continued  to follow the  sedan  eastward  on
Tudor,  all combined to provide Sims with specific  and
articulable facts that, given the recent commission  of
a serious felony, warranted an investigative intrusion.
          We  therefore agree with Judge Card that  the
investigative  stop in this case was lawful  under  the
Coleman test.  Judge Card properly denied McQuades  and
Johnstons suppression motion.


          The  judgements  of  the superior  court  are

1	AS 11.41.500(a)(1).

2	The sole reference to 13 AAC 02.200(a) in Alaska appellate
decisions  occurs in  Bruns v. State, Alaska App. Memorandum
Opinion  No.  4690,  p. 2; 2003 WL 1878981,  *1  (April  16,
2003),  where this Court held that a motorist violated  this
regulation  by  making a right-hand turn from the  left-hand
lane of the road.

3	Coleman v. State, 553 P.2d 40, 43 (Alaska 1976); see  also
Waring v. State, 670 P.2d 357, 365 (Alaska 1983); Metzker v.
State, 658 P.2d 147, 149-50 (Alaska App. 1983).

4	In  the  Matter of J.A., 962 P.2d 173, 176  (Alaska  1998)
(internal citations omitted).

5	Id.;  see  also  Gutierres v. State, 793 P.2d  1078,  1080
(Alaska  App. 1990) (A reasonable suspicion is one that  has
some factual foundation in the totality of the circumstances
observed   by   the  officer  in  light  of   the   officers

6	Waring v. State, 670 P.2d 357, 365 (Alaska 1983),  quoting
Terry  v.  Ohio,  392 U.S. 1, 21; 88 S.Ct.  1868,  1880;  20
L.Ed.2d 889 (1968).

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