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Morgan v. State (7/16/2007) ap-2110

Morgan v. State (7/16/2007) ap-2110

     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-9579
Appellant, ) Trial Court No. 4DJ-05-129 Cr
v. )
) O P I N I O N
Appellee. ) No. 2110 July 13, 2007
          Appeal  from the District Court, Fourth  Judi
          cial  District,  Delta  Junction,  Tracy   L.
          Blais, Magistrate.

          Appearances:    Zane  D.  Wilson   of   Cook,
          Schuhmann, & Groseclose, Fairbanks,  for  the
          Appellant.   Blair M. Christensen,  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.

          Late  in  the evening on September 15, 2005, Dennis  R.
Morgan pulled out of a restaurant parking lot onto the Richardson
Highway  without using his turn signal  in apparent violation  of
13  AAC 02.215(a).1  State Trooper Brian Wassmann, who was parked
nearby,  saw Morgan leave the parking lot without signaling.   He
pursued Morgans vehicle and pulled him over.
          During  Wassmanns  contact  with  Morgan,  the  trooper
          observed indications that Morgan might be intoxicated.  Morgan
admitted  that  he  had  consumed two or three  beers.   Wassmann
administered  field sobriety tests to Morgan  and,  after  Morgan
failed  these  tests, Wassmann arrested Morgan for driving  under
the influence.
          Morgan  filed a motion seeking to suppress the evidence
against  him  on  the basis that Trooper Wassmann  had  subjected
Morgan  to a pretext stop.  The district court held a hearing  at
which evidence was presented concerning the precise circumstances
of   Morgans  traffic  stop  and  Trooper  Wassmanns  enforcement
practices  concerning  traffic  violations   in  particular,  his
practices   regarding  the  enforcement  of   the   turn   signal
          In  addition,  Morgan  presented  the  testimony  of  a
paralegal  employed  by his attorneys law  firm.   The  paralegal
testified  that  she stationed herself for a few hours  to  watch
vehicles leaving the same restaurant parking lot, as well as  the
parking  lot  of  a nearby grocery.  According to the  paralegal,
only  one-quarter of the vehicles leaving the restaurant  parking
lot  (seven vehicles out of twenty-eight) and only two-fifths  of
the  vehicles  leaving the grocery parking lot (fourteen  out  of
thirty-six) used their turn signal to indicate their intentions.
          However,  no law enforcement officers passed by  during
this  time.  Thus, the paralegal had no information as to whether
these  motorists  would have been stopped  if  their  failure  to
signal had been observed by a peace officer.
          At  the conclusion of the hearing, Magistrate Tracy  L.
Blais concluded that when Trooper Wassmann made the traffic stop,
he  had  probable cause to believe that Morgan had  violated  the
turn signal regulation.  (Morgan does not appeal this portion  of
the magistrates ruling.)
          Magistrate Blais further concluded, using the  criteria
established  by  this  Court in Nease v. State,2  that  Wassmanns
decision to stop Morgans vehicle was a reasonable police practice
and  that,  therefore,  Wassmann had  not  stopped  Morgan  on  a
          Following  the  magistrates ruling,  Morgan  entered  a
Cooksey  plea  to  the  charge of driving  under  the  influence,
preserving  his  right to pursue his pretext  stop   argument  on
appeal.3   In  his  briefs  to  this Court,  Morgan  argues  that
Wassmanns  action in this case  his decision to stop  Morgan  for
failing  to  signal  a  turn out of a  parking  lot   was  not  a
reasonable police practice.
          Morgan   points  out  that,  according   to   Wassmanns
testimony at the evidentiary hearing, Wassmann only rarely  stops
drivers  for  failing  to  signal when  leaving  a  parking  lot.
Wassmann  testified that, unless a trooper has been  specifically
directed  to give priority to traffic enforcement, troopers  have
quite a bit of discretion as to whether to stop a motorist for  a
traffic  violation.   Regarding failures to signal  a  turn  when
leaving  a  parking lot, Wassmann conceded that he had made  such
traffic stops only a dozen times during his thirteen years  as  a
state trooper.
          Moreover, Wassmann testified that, on the night when he
stopped  Morgan, he was working a special detail [targeting]  DUI
          enforcement.  To that end, Wassmann was paying special attention
to moving violations.  As Wassmann explained,

     Driving  is  a multi-task[ing  activity]
...   or  divided-attention  task[.]    [And]
alcohol  [consumption] impairs that  divided-
attention  task.  So if people commit  moving
violations  out there, ... it  behooves  [law
enforcement  officers]  to  enforce  the  ...
traffic [laws] and ... make the stop and  see
if [the driver is] under the influence.
     .  .  .

     [A]t   that  hour,  [especially],   were
looking  for moving violations  because  [we]
know that alcohol impairs people to the point
of   ...   making  moving  violations.    ...
[T]hats common knowledge.

          Based  on  this  testimony,  Morgan
argues  that  it  is  obvious  that  Wassmann
stopped Morgans vehicle because he wanted  to
investigate  Morgan  for  driving  under  the
influence  and that Wassmann would  not  have
bothered  to  stop  Morgans  vehicle   absent
[this] improper motivation.
          As  we  pointed  out  in  Nease  v.
State, 105 P.3d at 1148, Alaska law is  still
undecided  on the question of pretext  stops.
The United States Supreme Court rejected this
doctrine  in  Whren v. United  States.4   The
Alaska courts have not yet decided whether to
follow   Whren   or,  instead,   follow   the
decisions  of other states that have  adopted
the pretext stop doctrine as a limitation  on
the  authority  of  police officers  to  stop
vehicles for traffic violations.
          We  did  not  have to resolve  this
issue in Nease, and we conclude that we  need
not   resolve  this  issue  in  Morgans  case
either.   Even if we were to adopt a  pretext
stop   limitation  on  traffic  stops,   that
doctrine  would  not apply to  the  facts  of
Morgans case.
          We  reach  this  conclusion  mainly
because  we  disagree with Morgans contention
that   DUI   enforcement  was   an   improper
motivation for the stop of Morgans vehicle.
          As  we explained in Nease, the fact
that  a  police officer may have an  ulterior
motive  for enforcing [a particular]  law  is
irrelevant  for  Fourth  Amendment   purposes
even  under  the doctrine of pretext  [stops]
unless   the  defendant  proves   that   this
ulterior  motive  prompted  the  officer   to
          depart from reasonable police practices.5

          At the evidentiary hearing, Trooper
Wassmann    testified   that   a    motorists
commission  of  a  moving  violation  is   an
indicator   that   the   motorist   may    be
intoxicated   because  the  act  of   driving
requires a motorist to concentrate on several
things  at  once,  and  the  consumption   of
alcohol  reduces  the  motorists  ability  to
multi-task.  This testimony was unrebutted.
          Wassmann  was  assigned  to  a  DUI
enforcement detail on the night in  question;
that is, he was directed to be on the lookout
for  potentially  intoxicated  drivers.    At
10:45 p.m., Wassmann observed Morgans vehicle
leaving the parking lot of a restaurant  that
served  alcoholic beverages.  Morgan  entered
the  highway without signaling.  Given  these
facts,  and given the relationship between  a
motorists   intoxication  and  an   increased
likelihood  that the motorist will  commit  a
moving  violation, Magistrate Blais  properly
concluded  that  Wassmanns decision  to  stop
Morgans   vehicle  conformed  to   reasonable
police practices.
          Indeed,  the  States case  here  is
seemingly stronger than it was in Nease   for
the  traffic  violation in Nease  was  not  a
moving  violation,  but rather  an  equipment
violation  (i.e., a traffic  infraction  that
had   no   ostensible  relationship  to   the
likelihood that the driver was impaired).
          The judgement of the district court

     1This  administrative regulation provides:   No  person  may
turn a vehicle or move right or left upon, onto, or off a roadway
without giving an appropriate signal ... .

2105 P.3d 1145, 1148-1150 (Alaska App. 2005).

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

4517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

5Nease, 105 P.3d at 1148 (citing Wayne R. LaFave, Search and
Seizure:   A Treatise on the Fourth Amendment (3rd  ed.
1996),  1.4, Vol. 1, pp. 117-18).

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