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Cofey v. State (9/18/2009) ap-2238

Cofey v. State (9/18/2009) ap-2238

     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-10079
Appellant, ) Trial Court No. 4FA-06-3118 CR
v. )
) O P I N I O N
Appellee. )
) No. 2238 September 18, 2009
Appeal    from    the
          Superior  Court,  Fourth Judicial  District,
          Fairbanks, Randy M. Olsen, Judge.

          Appearances:   Tracey Wollenberg,  Assistant
          Public Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the  Appellant.
          Douglas   H.  Kossler,  Assistant   Attorney
          General, Office of Special Prosecutions  and
          Appeals,  Anchorage, and Talis  J.  Colberg,
          Attorney General, Juneau, for the Appellee.

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

          BOLGER, Judge.

          In  this  appeal  we consider whether a police  officer
conducted  an  investigative stop when he used his  red  overhead
lights  to  contact a pedestrian.  We conclude that  the  officer
made  an  investigative  stop  when  he  pulled  up  behind   the
pedestrian,  activated his overhead lights,  jumped  out  of  his
patrol car, and instructed the pedestrian to approach  the car.
          Late  in  the  evening  on August 18,  2006,  Fairbanks
Police  Officer  James  OMalley  was  dispatched  to  the   Cofey
residence  after the police department received  a  report  of  a
fight  or  disorderly conduct.  The dispatcher  informed  OMalley
that a car containing some of the people involved in the incident
had departed the scene.
          As   OMalley   neared  the  residence,   he   saw   two
individuals on a street  about twenty yards behind the residence.
One of the men ran away and the other, Joseph W. Cofey, looked at
OMalley and then started to walk away.  Cofey walked in front  of
OMalleys  patrol car and OMalley pulled ahead so that  Cofey  was
illuminated  by  the vehicles headlights.  Officer  OMalley  then
activated his overhead lights to let Cofey know that he wanted to
talk to him.
          OMalley  had no information that Cofey was involved  in
the  incident, and there was no indication that Cofey had been  a
victim or witness of any assault.  OMalley observed no commotion,
yelling, or physical confrontation between the two men.  Prior to
OMalleys contact, Cofey had done nothing to suggest that  he  was
armed and dangerous.
          After   he  activated  his  overhead  lights,   Officer
OMalley jumped out of his car and said, Come over here, I need to
talk  to  you.  Cofey responded Yeah,  walked a couple of  steps,
and  stopped in a driveway.  Cofey then began to dig in his front
jacket  pockets.  OMalley asked him to take his hands out of  his
pockets several times and Cofey responded Yeah, okay, I will, but
continued to dig in his pockets.  OMalley could see a hard object
in  one  of Cofeys pockets, and concluded that he might be trying
to  find  a  weapon.  Officer OMalley then drew  his  weapon  and
ordered Cofey to take his hands out of his pockets.
          Cofey   was  startled  when  he  saw  Officer   OMalley
pointing  his weapon at him and threw both of his hands into  the
air.   In  his left hand, Cofey held a baggie containing cocaine,
which  he  then  tossed over his left shoulder.  Officer  OMalley
arrested  Cofey,  and discovered that the hard object  in  Cofeys
pocket was actually two cell phones.
          Before  trial,  Cofey  moved to  suppress  the  cocaine
evidence,  arguing  that Officer OMalley  stopped  him  illegally
without  reasonable  suspicion.  In  his  ruling  denying  Cofeys
motion,  the  trial  judge  found that  when  the  officer  first
approached  Cofey,  there  was  no  reason  to  suspect  criminal
activity  by  Mr. Cofey as he was standing out in the  street  or
along  the side throwing a football, and that at that point there
would have been no reason to detain him for any reason.
          However,   the   judge  also  concluded  that   Officer
OMalleys activation of his overhead lights did not transform  the
contact into a stop, reasoning that the lights served to identify
OMalley  as  a  police officer, and noting that Cofeys  testimony
indicated  that he was not worried about the lights.   The  judge
further  concluded that when Cofey began digging in  his  pockets
and refused to remove his hands, the officer was entitled to stop
Cofey in order to protect himself.
          After the judges ruling, a jury convicted Cofey of  one
count   of   fourth-degree  misconduct  involving  a   controlled

     When Did This Encounter Become an Investigative Stop?
          When  we  review  the  denial of a motion  to  suppress
evidence, we view the record in the light most favorable  to  the
judges  findings,  and we accept the findings   unless  they  are
clearly  erroneous.2  We independently determine whether a  trial
courts   factual   findings  support  the  conclusion   that   an
investigative stop was justified.3
          A   police   officer   is   authorized   to   make   an
investigative  stop  when the officer has a reasonable  suspicion
that  an  imminent public danger exists or that serious  harm  to
persons   or  property  has  recently  occurred,  and  that   the
individual presents that danger or has caused that harm.4  But an
officer  does  not  conduct  an  investigative  stop  by   merely
approaching  an  individual on the street or  in  another  public
place,  by  asking him if he is willing to answer some questions,
[or]  by  putting questions to him if the person  is  willing  to
listen ... .5  Deciding whether a police-citizen contact rises to
the   level  of  an  investigative  stop  requires  an  objective
determination:   [W]hether  or  not  a  reasonable  person  would
believe that he or she was free to go.6
          We   noted   in  Ozhuwan  v.  State  that  an  officers
activation of his overhead lights is the traditional hallmark  of
a  traffic stop.7  In that case, an officer saw two cars   parked
near  a campground boat launch that was frequently used by minors
as a place to consume alcohol.8  The officer drove his patrol car
to  within approximately ten yards of the parked cars, positioned
his  car  between the cars and the exit to the boat launch  area,
and activated his overhead lights and high-beam headlights before
exiting  his  car to contact the parked vehicles.9  We  concluded
that  the  police conduct was virtually tantamount  to  an  overt
command to stay put.10
          However,  police overhead lights may not  always  carry
the  same  meaning  for a pedestrian.  The District  of  Columbia
Court   of  Appeals  has  suggested  that  there  is  a  critical
difference  between  an  officers turning his  vehicles  flashing
lights  on  to signal a motorist to stop and turning on emergency
equipment  to  stop  a  pedestrian.11  As that  court  explained,
pedestrians ordinarily [are] not likely to know that  an  officer
is  signaling  for  a  stop until the officer  communicates  [his
intention] in a more direct manner ... .12
          Accordingly,  something more than the  mere  activation
of overhead lights may be required to establish that a pedestrian
has  been subjected to an investigative stop.  In a case  similar
to  the  one before us, the District of Columbia Court of Appeals
found  that  a  pedestrian  had  indeed  been  subjected  to   an
investigative stop:
               In this case, [beyond the activation of
          the  officers overhead lights,] we have [an]
          additional  component.  Here, not  only  did
               the officers drive right up to appellant
          with  the  lights on and siren running,  but
          Officer Carter testified that [w]hen we  got
          to  the location, I got out of the car,  and
          then  I asked Mr. Davis to come over to  the
          car.   .  .  .   We  do  not  think  that  a
          reasonable  person in that  situation  would
          have  felt  free  to  leave  or  decline  to
The  court  thus concluded that the police officer did  effect  a
stop  by  pulling up to the pedestrian, activating  his  overhead
lights,  getting  out of the car, and telling the  pedestrian  to
come over to the car.14
          In  the  present  case, we need not  decide  whether  a
police  officers  activation of his patrol cars overhead  lights,
standing  alone,  can  constitute  an  investigative  stop  of  a
pedestrian because, even if we were to adopt this rule, it  would
make  no difference to our resolution of Cofeys case.  Cofey  was
subjected  to additional coercive measures beyond the  activation
of  the patrol cars lights.  Cofey was the only pedestrian in the
area.   OMalley pulled up behind Cofey, positioning  his  car  so
that  Cofey was illuminated by his headlights.  OMalley then  got
out  of his car and instructed Cofey, Hey, ... come over here ...
I need to talk to you.
          Given  all  of these circumstances, even if  Cofey  had
not  initially understood that the activated overhead lights were
directed  at him, OMalleys subsequent actions, combined with  his
statement  to Cofey, all conveyed that the officer was  directing
Cofey  to  stop.   At that point, a reasonable person  in  Cofeys
situation  would  conclude  that  he  was  not  free  to   leave.
Accordingly,  Cofeys  encounter  with  Officer  OMalley  was   an
investigative stop.

     Was the Stop Supported by Reasonable Suspicion?
          As  explained  above, to perform an investigative  stop
an  officer  must  have a reasonable suspicion that  an  imminent
public  danger exists or that serious harm to persons or property
has  recently occurred, and that the individual stopped  presents
that  danger or has caused that harm.15  But, as the trial  court
found, at the time Officer OMalley directed Cofey to approach his
car, Cofey had done nothing to suggest that he posed a danger  or
that he had caused any harm.  Although OMalley testified that  he
was suspicious because Cofey looked at him and then start to walk
away,  he  did  not articulate any reason to believe  that  Cofey
presented any imminent danger or had caused any type of harm.
          The  trial court found that when Officer OMalley  first
approached  Cofey,  there  was  no  reason  to  suspect  criminal
activity  by  Mr. Cofey as he was standing out in the  street  or
along  the side throwing a football, and that at that point there
would  have  been  no  reason  to  detain  him  for  any  reason.
Accordingly,  we conclude that there was no reasonable  suspicion
to support the stop.

          We   conclude   that   Cofey  was   subjected   to   an
          investigatory stop when Officer OMalley activated his overhead
lights  and  directed  Cofey to approach  his  patrol  car.   The
evidence  discovered during this stop should have been suppressed
because  the stop was not supported by reasonable suspicion.   We
therefore REVERSE the superior courts judgment.16
     1 AS 11.71.040(a)(3)(A).

     2  Stumbaugh  v.  State, 599 P.2d 166,  172  (Alaska  1979);
Gallmeyer v. State, 640 P.2d 837, 839 (Alaska App. 1982).

     3 Beauvois v. State, 837 P.2d 1118, 1121 (Alaska App. 1992).

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

     5  Waring v. State, 670 P.2d 357, 363 (Alaska 1983) (quoting
Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L.
Ed. 2d 229, 236 (1983)).

     6 Id. at 364.

     7 786 P.2d 918, 921 (Alaska App. 1990).

     8 Id. at 920.

     9 Id.

     10   Id.

     11    Lawrence v. United States, 509 A.2d 614, 616 n.2 (D.C.

     12   Davis v. United States, 781 A.2d 729, 740 (D.C. 2001).

13   Id.

     14   Id.

     15   Coleman, 553 P.2d at 46.

     16    In  view  of this disposition, we do not  address  the
other issues that Cofey raises in this appeal.

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