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Winterrowd v. Municipality of Anchorage (6/23/2006) ap-2050

Winterrowd v. Municipality of Anchorage (6/23/2006) ap-2050

     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 Nos. A-9233 & A-9234
Appellant, ) Trial Court Nos. 3AN-04-4649,
) 3AN-05-3893, & 3AN-05-3894 MO
v. )
Appellee. ) No. 2050 June 23, 2006
          Appeal  from the District Court,  Third  Judi
          cial  District, Anchorage, Jennifer K. Wells,

          Appearances:  Ralph Kermit Winterrowd 2nd, in
          propria  persona,  Knik, for  the  Appellant.
          Rachel     Plumlee,    Assistant    Municipal
          Prosecutor,   and   Frederick   H.    Boness,
          Municipal Attorney, Anchorage, for the  Appel

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

          MANNHEIMER, Judge.

          On  January  3,  2004, and again on October  11,  2004,
Ralph  Kermit Winterrowd 2nd was stopped for speeding.   On  both
occasions,  the  police asked Winterrowd to produce  his  drivers
license,  his  vehicle registration, and proof of  motor  vehicle
          During   the   January  3rd  traffic  stop,  Winterrowd
produced  his drivers license and registration, but  he  did  not
produce  proof  of  insurance.  Instead, Winterrowd  invoked  his
privilege  against  self-incrimination  and  his  right  to   the
assistance  of  counsel under the Fifth Amendment to  the  United
States Constitution.  Because Winterrowd did not produce proof of
motor  vehicle  insurance,  he was cited  for  violating  Section
09.28.030(B)(1) of the Anchorage Municipal Code (failure to carry
proof of motor vehicle insurance).
          During   the  October  11th  traffic  stop,  Winterrowd
produced his drivers license, but he did not produce his  vehicle
registration  or  proof of insurance.  Again, Winterrowd  invoked
his  Fifth  Amendment  privilege against  self-incrimination  and
right to counsel.  This time, Winterrowd was cited for failing to
produce  proof of motor vehicle insurance upon the  demand  of  a
police  officer,  AMC 09.28.030(B)(2), and for failing  to  carry
motor vehicle registration, AMC 09.52.020.
          These  three  charges  were jointly  adjudicated  in  a
single  bench  trial  in  the  district  court.   At  his  trial,
Winterrowd argued that, because he was subjected to a seizure  of
his  person  within  the  meaning of the  Fourth  Amendment,  and
because  he  thereafter  invoked  his  privilege  against   self-
incrimination and his rights to silence and to the assistance  of
counsel under the Fifth Amendment, he could not be penalized  for
failing to produce the documentation that the officers asked  him
for.   The  district  court  rejected  this  argument  and  found
Winterrowd guilty of all three offenses.
          Winterrowd  now appeals his convictions,  renewing  the
constitutional argument that he presented to the district court.
          Winterrowd is correct that a motorist who is  subjected
to  a  traffic  stop  is  seized for Fourth  Amendment  purposes.
However, not all Fourth Amendment seizures amount to custody  for
purposes  of  Miranda  v.  Arizona.1  That  is,  not  all  Fourth
Amendment seizures trigger the Fifth Amendment rights to  silence
and to the assistance of counsel recognized in Miranda.
          We addressed this point of law in McNeill v. State, 984
P.2d 5 (Alaska App. 1999):
               Generally,  in  determining  whether   a
          person is in custody for Miranda purposes,  a
          court    must   ask   whether,   under    the
          circumstances of the police interaction  with
          the  suspect, ... a reasonable person [would]
          have felt free to break off the interrogation
          and,  depending on the location, either leave
          or ask the police to leave.  [quoting Long v.
          State,  837 P.2d 737, 740 (Alaska App. 1992)]
          ...    This  wording  suggests  that  Miranda
          warnings  will be required whenever a  person
          is  seized for Fourth Amendment purposes, but
          that  is  not  the law.  The  cases  applying
          Miranda recognize that there are some  Fourth
          Amendment  seizures  of  temporary   duration
          most notably, routine traffic stops and other
          investigative   stops    in   which   Miranda
          warnings  are not required, even  though  the
               person is temporarily in custody and the
          police can properly ignore a request that the
          officers depart and leave the person alone.
McNeill,  984 P.2d at 6-7 (emphasis omitted), citing Berkemer  v.
McCarty, 468 U.S. 420, 439-440; 104 S.Ct. 3138, 3150; 82  L.Ed.2d
317  (1984) (holding that Miranda does not apply when a  motorist
is  subjected  to  roadside questioning during a routine  traffic
stop);  Blake v. State, 763 P.2d 511, 514-15 (Alaska  App.  1988)
(holding  that police officers are not required to  give  Miranda
warnings  during  an  investigative stop  unless  and  until  the
initial  stop  ripens into custody as that  term  is  defined  in
Miranda  jurisprudence).  See also Wayne R.  LaFave,  Search  and
Seizure:  A  Treatise  on the Fourth Amendment  (4th  ed.  2004),
 9.3(b), Vol. 4, pp. 367-377.
          In  his reply briefs, Winterrowd asserts that he is not
attempting   to  raise  a  Miranda  issue.   Instead,  Winterrowd
asserts,  he is relying on the Fifth Amendment rights to  silence
and  to  the assistance of counsel that the law gives  him  apart
from  Miranda.  But in roadside encounters like the ones in these
cases, there is no Fifth Amendment right to silence or to counsel
apart  from  situations of custodial interrogation as defined  in
Miranda jurisprudence.  See State v. Garrison, 128 P.3d 741,  747
(Alaska  App. 2006) (holding that, because the defendant was  not
in  custody  for Miranda purposes, the police could  continue  to
question him despite his arguable request for an attorney).
          Because  Winterrowds traffic stops did  not  constitute
custody  for Miranda purposes, the police could continue  to  ask
Winterrowd  to  produce  his vehicle registration  and  proof  of
insurance  even  after  Winterrowd invoked  his  Fifth  Amendment
rights to silence and to the assistance of counsel  because those
rights did not apply in Winterrowds situation.
          The  remaining issue is whether Winterrowd, by invoking
his  privilege against self-incrimination, could lawfully  refuse
the   police  officers  demands  that  he  produce  his   vehicle
registration  and  proof  of  insurance.   The  answer   is   no:
motorists  have  no  Fifth Amendment right to  refuse  authorized
police requests for production of their vehicle registration  and
proof of insurance.
          See  Larkin v. Hartigan, 620 N.E.2d 598, 602 (Ill. App.
1993)  (There  is  nothing  unconstitutional  about  requiring  a
vehicle  owner to verify [that] his insurance sufficiently  meets
all  legal requirements.); People v. Goodin, 668 N.W.2d 392, 395-
96 (Mich. App. 2003) (motorists have no Fifth Amendment privilege
to  refuse  to  produce their drivers license, registration,  and
name and address).
          Accord:   State  v. Adams, 891 P.2d 251, 253-54  (Ariz.
App.  1995); State v. Melemai, 643 P.2d 541, 545-46 (Haw.  1982);
People  v.  Lucus, 243 N.E.2d 228, 230-31 (Ill. 1968); People  v.
Samuel,  277  N.E.2d  381, 386; 327 N.Y.S.2d 321,  329-330  (N.Y.
1971);  Lamb v. State, 488 P.2d 1295, 1296-97 (Okla.  Crim.  App.
1971);  Commonwealth v. Long, 831 A.2d 737, 747-750  (Pa.  Super.
2003);  State v. Smyth, 397 A.2d 497, 499-500 (R.I. 1979);  Banks
v. Commonwealth, 230 S.E.2d 256, 257-59 (Va. 1976).
          See also Byers v. California, 402 U.S. 424, 427-434; 91
S.Ct. 1535, 1537-1540; 29 L.Ed.2d 9 (1971) (holding that hit-and-
run statutes that require motorists to produce identification  do
not violate the Fifth Amendment).
          For  these reasons, the district courts judgements  are

  1 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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