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Miller v. State (10/20/2006) ap-2069

Miller v. State (10/20/2006) ap-2069

     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-9484
Appellant, ) Trial Court No. 1JU-05-872 CR
v. )
) O P I N I O N
Appellee. )
) No. 2069 October 20, 2006
Appeal    from    the
          District  Court,  First  Judicial  District,
          Juneau, Keith B. Levy, Judge.

          Appearances:  Kathleen A. Murphy,  Assistant
          Public  Defender,  and Quinlan  G.  Steiner,
          Public   Defender,   Anchorage,   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.

          STEWART, Judge.

          A  police  officer  pulled  over  the  vehicle  Michael
Travis Miller was driving based on a report that Miller had  been
involved  in  a  verbal  domestic  dispute.   When  the   officer
contacted  Miller, he observed signs that Miller was  intoxicated
and asked him to submit to a breath test.  Miller refused and was
ultimately convicted of refusal to submit to a chemical test.
          Miller  argues that this stop was illegal and that  the
district  court should have suppressed the evidence against  him.
Having reviewed the record, we agree that the officer who stopped
Miller  had  no  objective  basis to believe  that  the  reported
argument  had  led,  or  would lead, to a  crime.   We  therefore
conclude  that  the  investigative  stop  was  not  supported  by
reasonable suspicion and reverse Millers conviction.

          Facts and proceedings
          On  July 13, 2005, at about 12:30 a.m., a woman  called
911  emergency to report that a man and a woman were  arguing  in
the  parking lot of Henrys Bar in Juneau. The caller said the two
were  not  physically fighting but were standing  near  the  open
doors  of  a  white Subaru arguing and waving their  arms.   When
asked to describe the individuals, the caller said the woman  had
blonde  hair and the man was wearing a hat and was about one  and
one-half feet taller than the woman.  She did not know if the two
were a couple or perhaps brother and sister.
          Juneau Police Officer Keith Mickelsen, who happened  to
be  nearby, was dispatched to a verbal 10-16  that is,  a  verbal
domestic dispute.  The dispatcher described the individuals,  the
vehicle,  and  the location, but provided no other  details.   As
Officer  Mickelsen neared the parking lot of Henrys Bar,  he  saw
people  getting  into  a  white Subaru.  The  Subaru  drove  past
Officer  Mickelsen  as  he  entered  the  parking  lot.   Officer
Mickelsen  could  see that there were three people  in  the  car,
including  the  driver,  but  he could  not  see  the  passengers
distinctly enough to tell if anyone was in need of assistance.
          Officer  Mickelsen  activated his overhead  lights  and
stopped  the Subaru.  He contacted the driver, Miller, and  asked
him  about  the  argument in the parking lot.  He also  asked  if
anyone in the vehicle needed help; the two women passengers shook
their  heads  to  indicate that they did  not.   Upon  contacting
Miller,  Officer Mickelsen observed that he had watery, bloodshot
eyes  and an odor of alcohol, so he began to investigate  whether
Miller  was  intoxicated.  Ultimately, Miller  was  arrested  for
driving  while  under  the influence,1 refusal  to  submit  to  a
chemical  test,2  and  two counts of reckless  endangerment3  for
putting  his  passengers  at  risk by  driving  while  under  the
          Before  trial,  Miller moved to suppress  the  evidence
acquired  as  a  result of the stop, arguing that  the  stop  was
illegal.  At  an  evidentiary hearing, the  State  presented  the
testimony of Officer Mickelsen and the recordings of the 911 call
and  the  police dispatch.  After hearing this evidence, District
Court  Judge  Keith  B. Levy denied Millers motion,  finding  the
facts   sufficient to establish a substantial possibility that  a
domestic  violence assault was occurring, had  occurred,  or  was
about  to occur.  Miller then pleaded guilty to refusal to submit
to  a  chemical test, reserving his right to challenge the denial
          of his motion to suppress.4  The State dismissed the other
          Miller appeals.

          Was Millers stop illegal?
          The  parties  agree  that Miller was  subjected  to  an
investigative stop.  The only dispute is whether, under the facts
of this case, the report of a verbal argument provided reasonable
suspicion to stop Millers vehicle.
          An  investigative stop is permitted if an  officer  has
reasonable  suspicion  that  imminent  public  danger  exists  or
serious  harm  to  persons  or property has  recently  occurred.5
Alaska  courts take a flexible approach in evaluating  whether  a
stop   is  supported  by  reasonable  suspicion,  balancing   the
seriousness  and recency of the suspected crime and the  strength
of the officers suspicion against the intrusiveness of the stop.6
The  ultimate inquiry is whether the detaining officer, in  light
of  all  the  circumstances, had a particularized  and  objective
basis  for  suspecting the particular person stopped of  criminal
          Officer  Mickelsen stopped Miller based solely  on  the
dispatchers report of a verbal 10-16  that is, a verbal  domestic
disturbance.  We have previously held, in Jones v. State,8 that a
verbal  argument, standing alone, does not justify  a  detention.
In  Jones,  the  police  responded to  a  911  call  reporting  a
disturbance between a tenant and a landlord.9  When the  officers
arrived on the scene, they heard yelling from inside the building
and  found Jones arguing with a woman in the hallway.10   One  of
the  officers ordered Jones outside and questioned  him.11   When
Jones  tried  to cut off the questioning and leave,  the  officer
prevented  him from doing so.12  Eventually, Jones was handcuffed
and  searched  for  weapons.13  During that  search,  the  police
discovered crack cocaine.14
          We  concluded that Joness detention was illegal because
the police had no reason to believe he had committed a crime:
          [A]lthough  the police knew that  Jones  was
          involved  in  a  dispute with his  landlord,
          they  had  no  indication  that  Jones   had
          assaulted the landlord or had committed  any
          illegal  act.   Accordingly,  there  was  no
          basis for [the officer] to require Jones  to
          stay at the scene and talk to him[.][15]
          The  stop in this case was less intrusive than the stop
in  Jones.   And,  in  Jones, the police had  separated  the  two
individuals before the detention occurred so there was no ongoing
concern that the argument would become violent.  But the critical
fact is that Officer Mickelsen, like the officer in Jones, had no
objective basis for believing that a crime had occurred  or  that
one  was imminent.  At the evidentiary hearing, Officer Mickelsen
acknowledged  that  he had no reason to infer  that  this  was  a
domestic  violence situation: no violence had been  reported,  he
had  observed  no  violence,  and he  had  no  knowledge  of  the
relationship of the people involved.
          Nor  did  the additional facts known to the  dispatcher
          provide reasonable suspicion for the stop.16  The tape of the 911
call  was  played  at the evidentiary hearing.   The  911  caller
stated,  in a casual voice, that a man and a woman were  verbally
fighting  and  waving  their arms in the  parking  lot.   At  the
dispatchers request, the caller described the two individuals and
their  vehicle.  She did not say what the argument was  about  or
express  concern  that it would become violent.   Indeed,  it  is
impossible to tell from the 911 recording whether the caller  was
a  citizen  concerned for the safety of the man or woman,  a  bar
employee  worried  the argument was disturbing  customers,  or  a
nearby resident awakened by the noise.
          The   State  argues,  in  essence,  that  any  argument
between a man and a woman that is heated enough to prompt  a  911
call  is  per se reasonable suspicion of domestic violence.   But
many heated verbal arguments do not end in domestic violence, and
there  is no particularized and objective basis in the record  to
support  a rational inference that this argument would  end  that
way.17   For  these  reasons, we conclude that Millers  stop  was
illegal  and that the district court erred in denying his  motion
to suppress.
          Millers conviction is REVERSED.
     1 AS 28.35.030(a)(1).

     2 AS 28.35.032(a).

     3 AS 11.41.250(a).

4 Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).

     5 Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).

     6  Jones  v.  State,  11 P.3d 998, 1000 (Alaska  App.  2000)
(citing State v. G.B., 769 P.2d 452, 456 (Alaska App. 1989)).

     7  State  v.  Moran,  667 P.2d 734, 735 (Alaska  App.  1983)
(quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct.
690, 695, 66 L.Ed.2d 621 (1981)).

     8 11 P.3d 998 (Alaska App. 2000).

     9 Id. at 999.

     10   Id.

     11   Id.

     12   Id.

     13   Id. at 1000.

     14   Id.

     15   Id.

     16    See Mattern v. State, 500 P.2d 228, 233 (Alaska  1972)
([w]hen  one officer furnishes evidence to another officer  which
leads to an arrest, the state must prove the reasonable basis  of
the  former  officers information.); State v.  Prater,  958  P.2d
1110,  1113 (Alaska App. 1998) ([a]n investigative stop  made  in
objective  reliance on a police dispatchers bulletin is justified
if the dispatcher who broadcast the bulletin possessed reasonable
suspicion of imminent public danger justifying the stop.).

     17   Cf. McGee v. State, 70 P.3d 429, 432 (Alaska App. 2003)
(ruling that police did not have reasonable suspicion to detain a
package when there were no facts distinguishing the package  from
one that did not contain contraband).

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