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Bessette v. State (10/6/2006) ap-2063

Bessette v. State (10/6/2006) ap-2063

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     opinion  is published in the Pacific Reporter.  Readers
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) Court of Appeals No. A-9268
Appellant, ) Trial Court No. 4FA-05-0071 CR
v. ) O P I N I O N
Appellee. ) No. 2063 - October 6, 2006
Appeal    from     the
          Superior  Court,  Fourth  Judicial  District,
          Fairbanks, Charles R. Pengilly, Judge.

          Appearances: Michael A. MacDonald,  MacDonald
          &   Levengood,  P.C.,  Fairbanks,   for   the
          Appellant.   Tamara  E. de  Lucia,  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.

          COATS, Chief Judge.

          Lucas W. Bessette was convicted of felony driving while
under the influence1 after a trooper stopped him for driving  his
snowmachine  on  a sidewalk in Fairbanks.  On appeal,  he  argues
that  the  officer  was  not  justified  in  stopping  him,   and
          therefore, the trial court erred in denying his motion to
suppress the evidence against him.  We conclude that the stop was
valid and affirm Bessettes conviction.

          Facts and proceedings
          At  approximately 3:00 a.m. on January 6, 2005, Trooper
Derek  Loop  noticed Bessette trying to start a snowmachine  that
was  stalled on top of a snow berm on the sidewalk beside College
Road in Fairbanks.   There had been heavy snow that day, and  the
berm  was the result of road crews being halfway between  plowing
the  road  and plowing the sidewalk.   Trooper Loop  stopped  his
patrol car and approached Bessette on foot.  He testified that he
wanted to make sure Bessette was all right and talk to him  about
having  his  snowmachine  on the sidewalk,  which  is  a  traffic
          When  Trooper Loop approached, Bessette  turned  around
and  took  a few rapid steps in the opposite direction.   Trooper
Loop  noticed that Bessette  was staggering. He told Bessette  to
stop  and  asked  him to identify himself.  Eventually,  Bessette
turned  around  and admitted that he had driven the  snowmachine.
Trooper Loop noticed that Bessettes speech was slurred.
          Trooper  Loop  requested that Bessette perform  several
field  sobriety  tests,  which Bessette  failed.   Bessette  then
submitted  to a DataMaster test, which revealed a breath  alcohol
content  of  .259  percent.  Trooper Loop arrested  Bessette  for
driving  while   under the influence.  Because  he  had  previous
convictions  for that offense, he was ultimately charged  with  a

          Bessette moved to suppress all evidence from the  stop.
He  argued that the stop was not a valid welfare check.  He  also
argued  that the trooper did not have probable cause to stop  him
for  operating a snowmachine on the sidewalk because the sidewalk
was  under  a  snow  berm.   The court denied  Bessettes  motion,
holding that the trooper had made a valid traffic stop.  Bessette
entered a Cooksey plea, preserving his right to appeal the denial
of his suppression motion.3  This appeal followed.

          Bessettes  claim that the stop was not a valid  traffic
          Whether probable cause for a traffic stop exists  is  a
mixed  question  of fact and law.4  We view the evidence  in  the
light most favorable to the trial courts ruling and overturn  its
factual  findings  only  if  they  are  clearly  erroneous.5   We
independently  review whether those facts justify  a  finding  of
probable cause.6
          Normally,  an officer who directly observes a violation
of  the  traffic  code has probable cause for  a  traffic  stop.7
Here, the trooper observed Bessette trying to start a snowmachine
that  was  stalled on the sidewalk.  The traffic  code  prohibits
driving  on  a  sidewalk  or sidewalk  area.8   Accordingly,  the
          trooper would normally have probable cause to stop Bessette.9
However, Bessette argues that the sidewalk lost its character  as
a sidewalk because it was covered by a snow berm.
          The  Alaska  Administrative Code defines a sidewalk  as
that  portion  of a street between the curblines or  the  lateral
lines  of a roadway and the adjacent property lines, and intended
for  use  by pedestrians.10  It defines pedestrian as any  person
afoot; it includes a person on skis or snowshoes.11
          At the evidentiary hearing, Bessette testified that the
snow  berm was approximately three feet high, eight to  ten  feet
wide,  and  flat on top.  He saw eight to ten inches of  sidewalk
showing,  and  he thought it was possible he was on  top  of  the
sidewalk. The trial court said:  One of the clear thoughts in  my
head is its no less of a sidewalk because its got snow on it.
          We  agree.  The snow was not so high that Bessette  was
unable  to identify the sidewalk, and pedestrians could  continue
to use the eight to ten inches of space on the ground or the wide
flat  surface  on  the berm for foot, ski, or  snowshoe  traffic.
Under  these facts, the sidewalk remained a sidewalk for purposes
of the administrative code.
          Bessette also argues that a reasonable person would not
expect that the traffic code applied to a sidewalk covered  by  a
snow  berm,  and  therefore, he had a reasonable  expectation  of
privacy not to be contacted by the police.  Even if this was  so,
the  right to privacy guaranteed by Article I, Section 22, of the
Alaska Constitution does not create a right to seek the exclusion
of  evidence that is  separate and independent from the right  to
be  free from unreasonable searches and seizures under Article I,
Section  14,  of  the Alaska Constitution.12   Consequently,  our
ruling that Bessettes stop was valid under Article I, Section 14,
of the Alaska Constitution disposes of his privacy claim as well.
          Finally,  Bessette argues that the stop was an  invalid
pretext  stop because the troopers subjective motivation was  not
to  cite  him for a traffic infraction but to conduct  a  welfare
check  or an investigative stop.  We have not decided whether  to
adopt  the  doctrine of pretext stops as a matter of Alaska  law.
But  even if we recognized that doctrine, Bessette has failed  to
show that his stop was an impermissible pretext stop.  To do  so,
Bessette had to prove the trooper departed from reasonable police
practice  when he stopped Bessette for operating a motor  vehicle
on  the  sidewalk.13   Bessette has presented no  such  evidence.
Accordingly, we reject his claim.

          Bessettes conviction is AFFIRMED.
     1 AS 28.35.030(a), (n).

     2 13 AAC 02.487.

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

     4 Chandler v. State, 830 P.2d 789, 792 (Alaska App. 1992).

     5  State v. Wagar, 79 P.3d 644, 650 (Alaska 2003); Nease  v.
State, 105 P.3d 1145, 1147-48 (Alaska App. 2005).

     6 Wagar, 79 P.3d at 650; Nease, 105 P.3d at 1148.

     7  Nease, 105 P.3d at 1147; Williams v. State, 853 P.2d 537,
538 (Alaska App. 1993).

     8 13 AAC 02.487.

     9  See  Nease,  105 P.3d at 1147; Conkey v. State,  Dept  of
Admin.,  113  P.3d 1235, 1237-38 (Alaska 2005);  State,  Dept  of
Public  Safety  v.  Conley,  754 P.2d  232,  236  (Alaska  1988);
Jacobson  v. State, 551 P.2d 935, 937-38 (Alaska 1976); Mezak  v.
State,  877 P.2d 1307, 1308 (Alaska App. 1994); Lathan v.  State,
707 P.2d 941, 943 (Alaska App. 1985).

     10 13 AAC 40.010(a)(48).

     11 13 AAC 40.010(a)(33).

     12  See Anchorage v. Ray, 854 P.2d 740, 750-51 (Alaska  App.

     13  See Grohs v. State, 118 P.3d 1080, 1081-82 (Alaska  App.
2005); Nease, 105 P.3d at 1147-48.

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