Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.

Peterson v. State (4/21/2006) ap-2046

Peterson v. State (4/21/2006) ap-2046

     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

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878


) Court of Appeals No. A-8818
Appellant, ) Trial Court No. 3KN-03-226 Cr
v. )
) O P I N I O N
Appellee. ) No. 2046 April 21, 2006
          Appeal  from the Superior Court,  Third  Judi
          cial  District,  Kenai,  Donald  D.  Hopwood,

          Appearances:    Krista  Maciolek,   Assistant
          Public Advocate, Palmer, and Joshua P.  Fink,
          Public    Advocate,   Anchorage,   for    the
          Appellant.   Kenneth  J.  Diemer,   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.

          Darrell  Lee Peterson appeals his convictions  for  two
counts   of   fourth-degree   controlled   substance   misconduct
(possession  of  cocaine and methamphetamine) and  one  count  of
evidence  tampering.   He contends that the police  obtained  the
evidence against him during an illegal investigative stop.
          For  the  reasons explained here, we conclude that  the
challenged investigative stop was lawful, and we therefore affirm
Petersons convictions.

     Underlying facts
               In  the  early morning of February  2,  2002,
     Kenai  Police Officer Aaron Turnage was parked  in  his
     patrol  car,  completing  some  paperwork.   There  was
     another car parked in the same parking lot, about  100-
     150 feet away. Turnage noticed some unusual movement in
     the  front  seat  of this car:  according  to  Turnages
     later  testimony, there was somebody hunched  over  the
     passengers seat, and there was some flailing ...  going
     on  in  the car.  Turnage also observed someone  moving
     back  and forth from the drivers seat to the passengers
     seat in a very rapid manner.
               Because this just ... didnt look like  normal
     activity, Turnage drove his patrol car closer  to  this
     other  vehicle.  Hoping to approach unnoticed,  Turnage
     did not turn on his headlights or activate his overhead
     lights.  He parked about 20 to 40 feet behind the other
     vehicle  and  called  in  its  license  plate  to   his
     dispatcher,   but  this  computer  check  revealed   no
     problems with the vehicle or the vehicles owner.
               At  this point, Turnage got out of his patrol
     car  and walked up to the other car, approaching on the
     passengers side.  When he looked through the window, he
     saw  a man and a woman.  According to Turnage, the  man
     was  hunched over the passengers seat, and he  appeared
     [to  be]  pressing  th[e] female [passenger]  into  the
     seat.   He  was  on top of her. ...  He was  forcefully
     kissing her on the head, neck, [and] face area.
               Turnage  could  not discern  how  the  female
     passenger was reacting to this sexual activity, and  he
     was  concerned  that  the man was committing  a  sexual
     assault.  Turnage walked around to the drivers side  to
     get  the  [man]s attention [and get] him  off  of  [the
     woman],  so  that  Turnage could figure  out  what  was
          Standing  by  the  drivers  window,   Turnage
turned  on  his flashlight, knocked on the window,  and
identified  himself  as  a  police  officer.   Speaking
through the window, Turnage told the man that he needed
to  speak  with  him.   At  first,  the  driver   later
identified  as Darrell Peterson  refused to  roll  down
the  window  or  open the car door.  Instead,  Peterson
responded  by  asking, What the fuck do you  want?  and
then declaring, Im not doing anything wrong.
          Turnage   explained  to  Peterson   that   it
appeared  that  he was forcing himself  on  the  woman.
Peterson  responded that the woman was his  girlfriend,
and  that  their  activity  was  consensual.   However,
Turnage  testified  that, during his conversation  with
Peterson,  the  woman  just ... sat  there,  giving  no
indication  as to whether she agreed or disagreed  with
Petersons characterization of the situation.  The woman
neither  confirmed  nor  denied  that  she  was   being
assaulted; she simply sat in the vehicle.  When Turnage
asked the woman for identification, she did not furnish
it to the officer.
          At   some   point  during  this  interaction,
Turnage  noticed  that Peterson was  holding  a  folded
dollar  bill in his hand.  The bill was folded  into  a
bindle   that  is,  a small envelope commonly  used  to
carry  drugs.   Turnage saw that Peterson  was  passing
[this  bindle] back and forth from hand to  hand,  very
quickly, in a nervous manner.
          Still  speaking to Peterson through  the  car
window,  Turnage  asked  Peterson  for  identification.
When  Peterson  replied  that  he  did  not  have   any
identification,  Turnage asked him  for  his  name  and
birth  date.   Peterson  identified  himself  as   Mike
Vinzant,  and he said that his date of birth  was  July
17,  1984   a birth date that would have made  Peterson
seventeen years old.  Because Peterson appeared  to  be
considerably older than that (his real age was  thirty-
four),  Turnage concluded that Peterson was giving  him
false information.
          At about the same time that Peterson gave the
false  name and false date of birth, he opened the  car
door.   At that time, Turnage asked Peterson about  the
folded-up  dollar bill in his hand  whereupon  Peterson
opened  the  bindle and shook it.  A large quantity  of
white  crystalline powder cascaded from the bindle  and
settled  over  the  drivers  seat  and  floorboard   of
Petersons car.  Peterson also let go of the dollar bill
itself;  it  blew  away in the wind  (although  it  was
eventually recovered).
          Peterson  got  out of the vehicle  and  began
walking away.  Turnage laid hands on him, attempting to
arrest  him.  Peterson slipped from Turnages grasp  and
then  punched  Turnage  in  the  face.   Peterson  also
punched  a newly arrived backup officer before  he  was
finally restrained and placed in custody.

Procedural history

          After the white crystalline powder was tested
and  found  to  consist of cocaine and methamphetamine,
Peterson  was charged with three felonies:  two  counts
of  fourth-degree controlled substance misconduct,  and
one  count  of  tampering with evidence.  In  addition,
Peterson  was  charged  with  four  misdemeanors:   two
counts of fourth-degree assault, one count of resisting
arrest,  and  one count of providing false  identifying
information to a police officer.
          Peterson asked the superior court to suppress
the  evidence  of  the drug offenses and  the  evidence
tampering.    In   his  suppression  motion,   Peterson
contended  that  Turnage had lacked  justification  for
approaching his car, questioning him, and asking him to
open the car door or window.  The superior court denied
this motion.
          After   the   superior   court   denied   his
suppression motion, Peterson pleaded no contest to  all
of  the charges against him.  With respect to the three
felony  charges, Peterson entered Cooksey  pleas   that
is,  he  pleaded no contest but reserved his  right  to
litigate  the  suppression  issue  on  appeal.1    With
respect  to  the  four  misdemeanor  charges,  Peterson
entered   normal   pleas  of  no  contest.    (Peterson
accordingly does not appeal his convictions  for  these

The validity of Petersons Cooksey pleas

          This  Court has repeatedly emphasized that  a
Cooksey  plea  of  no contest is not valid  unless  the
issue preserved for appeal is dispositive of the case.2
The  State  contends that Petersons Cooksey  pleas  are
invalid  because the issue that Peterson preserved  for
appeal  the legality of the investigative stop  is  not
dispositive  of  all of the charges  against  Peterson.
The  State  argues  that even if all  evidence  of  the
controlled  substances  was suppressed,  only  the  two
fourth-degree    controlled    substance     misconduct
convictions  would be dismissed.  Peterson could  still
lawfully be prosecuted for evidence tampering  and  the
misdemeanor  charges of assault and  resisting  arrest,
and providing false identifying information.
          (See  Napageak v. State, 729 P.2d 893, 894-95
(Alaska   App.  1986),  where  this  Court   upheld   a
conviction for assaulting a police officer, even though
the  assault was committed in response to the  officers
unlawful entry into the defendants house.  This general
topic   prosecution for a crime that  is  committed  in
response to an unlawful search or seizure  is discussed
in  Wayne  R.  LaFave, Jerold H. Israel, and  Nancy  J.
King, Criminal Procedure (2nd ed. 1999),  9.4(f),  Vol.
3, pp. 380-81.)
          The  States  challenge to  Petersons  Cooksey
plea is based on a misunderstanding of what happened in
the  superior  court  in particular, what  happened  on
September 8, 2003, when Peterson agreed to enter his no
contest pleas.
          Neither  Peterson  nor the  State  designated
this  hearing  for  transcription; we  were  forced  to
investigate  the  matter  ourselves.   Based  on   what
Petersons  attorney said at this hearing, it  is  clear
that Peterson intended to enter unconditional pleas  of
no  contest to the four misdemeanor charges (two counts
of  assault  on  the  police officers,  plus  resisting
arrest   and   providing  false   information).    Only
Petersons  pleas to the three felonies (two  counts  of
controlled  substance misconduct, plus  tampering  with
          evidence) were intended to be Cooksey pleas.
          We  have  held  that it is improper  for  the
State and the defendant to agree to dismiss one or more
charges  if  the purpose for doing so is  to  make  the
defendants appellate issue dispositive of the remaining
charges.3   But  Petersons case does not  present  this
sort of charging manipulation.
          Petersons attorney apparently concluded  that
even if Peterson prevailed in his suppression argument,
the  State  would  still be able  to  pursue  the  four
misdemeanor  charges  (two  counts  of  assault,   plus
resisting  arrest  and  providing  false  information).
Accordingly, Peterson entered unconditional no  contest
pleas  to  these charges.  He preserved  his  right  to
appeal  only  the  two drug charges  and  the  evidence
tampering   charge.   Thus,  if  Petersons  suppression
argument  is dispositive of these latter three charges,
his Cooksey plea is valid.
          The  State  argues that even though Petersons
suppression  argument  is  dispositive  of   the   drug
charges,   it  is  not  dispositive  of  the   evidence
tampering  charge.   But the States  argument  of  this
point   consists  of  a  single  conclusory   sentence,
unsupported by any authority.
          Moreover,  the authors of Criminal Procedure,
supra,  take  the  position that the exclusionary  rule
should   be  construed  to  bar  the  government   from
introducing  evidence of a defendants act  of  evidence
tampering  done  in  response to an illegal  search  or
seizure.   The  authors  point  out  that  attempts  to
dispose   of  incriminating  objects  are  common   and
predictable   consequences  of  illegal   arrests   and
searches,  and  they argue that if the government  were
allowed to introduce evidence of such acts, this  would
defeat   the  policy  of  the  exclusionary   rule   by
encourag[ing]  Fourth  Amendment violations  in  future
          We   need   not  definitively  resolve   this
question regarding the scope of the exclusionary  rule.
Instead, it is sufficient for present purposes to point
out  that  (1) there is respectable authority  for  the
proposition   that,  if  Peterson  succeeded   in   his
suppression  motion,  the State would  be  barred  from
pursuing  the evidence tampering charge,  and  (2)  the
State has failed to present any contrary authority.
          For  these  reasons,  we accept  the  Cooksey
agreement  in this case, and we proceed to  decide  the
merits of Petersons suppression argument.

The investigative stop in this case was lawful

          At  the  evidentiary hearing  in  this  case,
Officer   Turnage  presented  the  testimony  that   we
described  above, and Superior Court  Judge  Donald  D.
Hopwood  concluded  that this testimony  was  credible.
          Accordingly, when we assess the legality of Turnages
actions,  we  judge  the evidence  in  the  light  most
favorable to Judge Hopwoods ruling.5
          Turnage  observed activity in  a  parked  car
late  at night (or, rather, early in the morning)  that
was  seemingly  consistent with a sexual  assault.   To
investigate the situation, Turnage approached  the  car
but  without a show of authority.  He parked his patrol
vehicle  some distance away, he approached the  car  on
foot, he tapped on the window and shined his flashlight
to  get  the drivers attention, and he stated  that  he
wanted to speak to the driver.
          In  Barrows  v. State, 814 P.2d 1376  (Alaska
App. 1991), we confronted a similar encounter between a
police  officer  and a citizen, and  we  held  that  no
seizure  had  occurred.  In Barrows, a  police  officer
approached  a  parked vehicle on foot,  questioned  the
driver  briefly, and requested identification.  Id.  at
1377.  We concluded that [a] reasonable person in [this
situation]  would  have felt free to refuse  to  comply
with  this  request,  and we therefore  held  that  the
officers actions did not amount to a seizure for Fourth
Amendment purposes.  Id. at 1379.
          We  reach the same conclusion here.   Officer
Turnages initial approach to Petersons vehicle, and his
initial  contact  with Peterson, did not  amount  to  a
seizure.  Indeed, Peterson obviously felt no compulsion
to   comply  with  Turnages  request  for  conversation
because Peterson responded by asking, What the fuck  do
you want?
          At  this point, Turnage explained to Peterson
that  it  appeared that he was forcing himself  on  the
woman.   This  announcement  conceivably  altered   the
constitutional  tenor  of the interaction:   one  could
argue  that a reasonable person in Petersons  position,
after  hearing this, would no longer have felt free  to
ignore Turnages request for information.
          However, even if the encounter turned into an
investigative  stop  at this juncture,  Turnages  prior
observations  of the activity in the car justified  his
conduct in asking Peterson (1) to either roll down  the
window   or   open  the  car  door,  (2)   to   provide
identification,  and (3) to offer some  explanation  of
the situation.
          Peterson  refused  to either  roll  down  the
window  or  open  the  door.   And,  although  Peterson
declared  that  he  was engaged in consensual  activity
with  the  woman in the car, the woman herself  neither
said  nor  did anything to confirm Petersons assertion.
According  to  Turnage, the woman just  ...  sat  there
leaving  Turnage  with  unanswered  doubts  about   the
          When     Turnage    asked    Peterson     for
identification,  Peterson  replied  that  he   had   no
documentation  with him, and then  he  gave  Turnage  a
          birth date that was obviously false.  At this point, we
believe  that  Turnage  would have  been  justified  in
directing Peterson to step out of the car.
          As  it  turned out, however, Peterson emerged
from  the  car without any direct request from Turnage.
And,  at essentially the same time, Peterson shook  out
the  contents  of  the bindle  giving Turnage  probable
cause to make an arrest.
          For  these  reasons, we conclude  that  Judge
Hopwood correctly denied Petersons suppression motion.


          The  judgement  of  the  superior  court   is

1  See  Cooksey  v.  State, 524 P.2d 1251,  1255-57  (Alaska

2  See,  for example, Tyler v. State, 24 P.3d 1260,  1261-62
(Alaska  App.  2001);  Miles v. State,  825  P.2d  904,  905
(Alaska App. 1992).

3  See Wells v. State, 945 P.2d 1248, 1249-1250 (Alaska App.
1997);  Spinka v. State, 863 P.2d 251, 252 (Alaska App.1993)
(both  holding that a Cooksey plea is invalid if the parties
agreed  to  dismissal  of companion  charges  for  the  sole
purpose   of   making  the  defendants  suppression   motion
dispositive of the case).

4 LaFave et al., Criminal Procedure (2nd ed. 1999),  9.4(f),
Vol. 3, pp. 380-81.

5 Schaffer v. State, 988 P.2d 610, 612 (Alaska App. 1999).

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights