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Burnett v. State (11/10/2011) ap-2337

Burnett v. State (11/10/2011) ap-2337

        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 Courts: 

                               303 K Street, Anchorage, Alaska  99501
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                                                             Court of Appeals No. A-10715 
                                Appellant,                  Trial Court No. 4BE-09-836 Cr 

                                                                    O    P  I  N  I  O  N 

                                Appellee.                  No. 2337    -   November 10, 2011 

                Appeal from the District Court, Fourth Judicial District, Bethel, 
                Dennis P. Cummings, Judge. 

                Appearances:     Margi A. Mock, Assistant Public Defender, and 
                Quinlan Steiner, Public Defender, Anchorage, for the Appellant. 
                Eric   Auten,   Assistant   District   Attorney,   Bethel,   and   John   J. 
                Burns, Attorney General, Juneau, for the Appellee. 

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

                MANNHEIMER, Judge. 

                On September 20, 2009, at about 12:30 in the morning, a state trooper 

observed   a   vehicle   stopped   at   an   intersection. As   the   trooper   watched,   the   vehicle 

"peeled out" - spinning its tires as it accelerated - and made a left turn.               The trooper 

stopped the vehicle and, as a result of this stop, the trooper gathered information tending 

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to show that the operator of the vehicle, Vernon Burnett, was intoxicated.                   Burnett was 

charged with driving under the influence, and he was later convicted of this offense. 

                 Before   his   trial,   Burnett   asked   the   district   court   to   suppress   all   of   the 

evidence stemming   from the traffic stop, arguing that the trooper lacked reasonable 

suspicion to stop him.   The district court denied this suppression motion.  In this appeal, 

Burnett renews his argument that there was no valid basis for the trooper to make the 

traffic stop.   For the reasons explained in this opinion, we conclude that the stop was not 

justified, and we therefore reverse Burnett's conviction. 

        A more detailed description of the facts of this case 

                 On September 20, 2009, at about 12:30 a.m., Alaska State Trooper Lucas 

Altepeter observed a truck come to a stop at a stop-sign-controlled intersection in Bethel. 

After coming to a stop, the truck then "peeled out" and made a left turn.                  The vehicle's 

tires spun as it accelerated, and the tires continued to spin until the truck was one-third 

to one-half of the way through the intersection.              Altepeter became suspicious that the 

driver   of   this   truck   might   be   intoxicated,   so   he   initiated   a   traffic   stop. The   driver, 

Burnett, pulled over within a reasonable distance, with no driving errors. 

                 When Altepeter contacted Burnett, he observed that Burnett had a strong 

odor of alcohol, that he had bloodshot, watery eyes, and that he stumbled a bit as he 

walked.     Altepeter administered field   sobriety tests to Burnett, as well as a portable 

breath test, and (based on the results of these tests) Altepeter arrested Burnett for driving 

under the influence.        Later, Burnett submitted to a breath test at the trooper post; this 

breath test showed that Burnett had a blood alcohol content of .162 percent (i.e., about 

twice the legal limit). 

                                                   - 2 -                                               2337

----------------------- Page 3-----------------------

                 Burnett was charged with misdemeanor driving under the influence. Before 

his trial, he moved to suppress the evidence obtained during the traffic stop, arguing that 

his   stop   was   not   supported   by   reasonable   suspicion   to   believe   he   was   engaged   in 


                 At the evidentiary hearing on this suppression motion, Trooper Altepeter 

acknowledged that he did not typically stop a vehicle for losing traction and spinning its 

tires.   He     explained    that   he  decided    to  stop   Burnett   because     he   had   "never    seen 

somebody accidentally lose traction and spin their tires as fast and as far as this particular 

vehicle did."     Although there was some residual gravel on the asphalt road, Altepeter 

said that the road was dry and free of mud, snow, or ice.  In response to questions by the 

court, Altepeter testified that he believed he could have issued Burnett a citation for 

negligent driving based on the tire-spinning alone. 

                 At    the  conclusion     of   the  hearing,    the  district  court    denied   Burnett's 

suppression motion.         In its decision, the court did not address the issue of whether the 

circumstances known to Trooper Altepeter provided reasonable suspicion to believe that 

Burnett was driving under the influence.   Instead, the district court found that Altepeter 

had   probable   cause   to   believe   that   Burnett   had   committed   the   offense   of   negligent 

driving.    The district court also alluded to the possibility that the traffic stop might be 

justified under the "community caretaker" doctrine.  In his remarks, the judge declared 

that one role of the police is "keeping people safe, and investigating unsafe behavior, 

[and] forestall[ing] unsafe   behavior".            For   this   reason, the   judge   suggested   that   the 

trooper would be justified in stopping Burnett's vehicle "just to give [him] a safety 

warning".     Ultimately, the district court judge combined both of these rationales in his 


                          The Court:       In this case, the officer ... had probable 
                 cause   or   [a]   reasonable   belief   that   some   action   by   him   to 

                                                    - 3 -                                               2337

----------------------- Page 4-----------------------

                 contact the driver of that vehicle was called for - to draw his 
                 attention to it, to give him a warning, or, ... if he found that it 
                 was so egregious, to cite him for negligent driving. 

         Why we reverse the district court's decision 

                 When the question is whether an investigative stop was supported by either 

probable cause or, at least, reasonable suspicion, "[t]he ultimate inquiry is whether the 

detaining officer, in light of all the circumstances, had a particularized and objective 
basis for suspecting [that] particular person ... of criminal activity." 1 

                 Because      the  test  is  an  objective     one   (once   the   underlying     facts  are 

determined),   an   appellate   court   does   not   defer   to   the   trial   court's   determination   of 

whether given facts do or do not provide the requisite reasonable suspicion or probable 

cause to support an investigative stop.            Instead, we independently assess whether the 
facts, as found by the trial court, satisfy the objective test. 2 

                 See, for instance, Miller v. State, 145 P.3d 627, 630 (Alaska App. 2006), 

where this Court independently assessed the given facts and reversed the trial court's 

conclusion that the stop was justified; and Snider v. State, 958 P.2d 1114, 1118 (Alaska 

App. 1998), where this Court independently assessed the given facts and upheld an 

investigative stop on two bases that were different from the justification offered by the 

officer who made the stop. 

    1   Miller v. State, 145 P.3d 627, 629 (Alaska App. 2006), quoting State v. Moran, 667 

P.2d 734, 735 (Alaska App. 1983), which, in turn, was quoting United States v. Cortez, 449 
U.S. 411, 417-18; 101 S.Ct. 690, 695; 66 L.Ed.2d 621 (1981). 

    2    Chandler v. State, 830 P.2d 789, 792 (Alaska App. 1992): "[W]hether probable cause 

arises   from    [given]   facts  ...  is  a  purely  legal  issue  as  to  which   we   make    a de  novo 

                                                   - 4 -                                               2337

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                 In   Burnett's   case,   the    district   court   concluded     that   the  trooper   could 

reasonably suspect that Burnett was engaging in negligent driving.                     We disagree. 

                 Under AS 28.35.410(a), a person commits the offense of negligent driving 

if they drive in a manner that creates   an unjustifiable risk of harm to a person or to 

property, and if their conduct actually endangers a person or property.  According to the 

statute, proof of this latter element (i.e., that the defendant's driving actually endangered 

people or property) is established by proof that, as a result of the defendant's driving, 

(1) an accident occurred; or (2) any person (including the defendant) took evasive action 

to   avoid   an   accident;   or   (3)   any   person   (again,   including   the   defendant)   stopped   or 

slowed down suddenly to avoid an accident; or (4) any person or property (including the 

defendant's person or property) was otherwise endangered. 

                 Trooper Altepeter testified that when Burnett accelerated and turned left at 

the   intersection,     Burnett's    tires  spun    one-third    to  one-half    of   the  way    across   the 

intersection.  However, the trooper stated that he did not see Burnett engage in any other 

improper driving.   Altepeter did not assert that Burnett's driving endangered Burnett or 

anyone else, or that Burnett's driving put property at risk. 

                 In its brief to this Court, the State argues that this lack of evidence of actual 

endangerment "[does] not negate the fact that [Burnett's] erratic driving posed a threat." 

But   a   person   can   not   be   convicted   of   negligent   driving   for   creating   a   theoretical   or 

speculative danger.        The statute requires proof of actual endangerment.                As this Court 

explained in Comeau v. State, 

                          [The legislature's] reason for [including a requirement] 
                 of an actual endangerment ... in the negligent driving [statute] 
                 is obvious: ... the added requirement of actual endangerment 
                 is   necessary      to   protect    against    the   possibility     that   a 
                 prosecution      for   negligent    driving    -    a  relatively   serious 
                 infraction   -   might   be   based   merely   upon   commission   of 

                                                    - 5 -                                                2337

----------------------- Page 6-----------------------

                 some      less  serious    traffic   offense.     Without      the   actual 
                 endangerment         requirement,      for  example,      a  driver    who 
                 exceeded the speed limit by five miles per hour on an empty 
                 stretch    of   highway    would     be  subject   to   prosecution     and 
                 conviction for negligent driving. 

758 P.2d 108, 115-16 (Alaska App. 1988). 

                 We acknowledge that the issue in Burnett's case is not whether the State 

could prove that Burnett was guilty of negligent driving beyond a reasonable doubt, but 

merely whether Trooper Altepeter had reasonable suspicion to believe that Burnett was 

committing   this   offense.      Nevertheless,   the   State   offered   absolutely   no   evidence   to 

suggest that Burnett's driving created an actual danger to persons or property.   We 

therefore   reject   the   district   court's   conclusion   that   the   traffic   stop   in   this   case   was 

justified by a reasonable suspicion that Burnett had committed negligent driving in the 

trooper's presence. 

                 The district court alternatively suggested that the trooper was justified in 

stopping Burnett "just to give [him] a safety warning" - because one role of the police 

is "keeping people safe, and ... forestall[ing] unsafe behavior".  In its brief to this Court, 

the    State   interprets   the  district   court's   remarks   as   a  reference    to  the  "community 

caretaker" function of the police. 

                 In Ozhuwan v. State, 786 P.2d 918 (Alaska App. 1990), this Court held that 

a   Fourth   Amendment   seizure   may   be   justified,   even   when   there   is   no        reasonable 

suspicion of criminal activity, if the police are validly acting within their community 

caretaker role -   that is, if they are aware of specific circumstances giving rise to a 
reasonable belief that police assistance is required.  Id. at 922. 3 

    3    See   also  Crauthers      v.  State,  727  P.2d   9,  10-11    (Alaska   App.    1986);  Cady     v. 

Dombrowski, 413 U.S. 433, 441; 93 S.Ct. 2523, 2528; 37 L.Ed.2d 706 (1973). 

                                                    - 6 -                                                2337 

----------------------- Page 7-----------------------

                 When the State relies on the community caretaker doctrine to support a 

Fourth Amendment search or seizure, the   State must prove both (1) that the officer 

actually (i.e., subjectively) believed that police assistance was required or requested, and 

(2) that the circumstances known   to   the officer  objectively justified this conclusion. 
Crauthers v. State, 727 P.2d 9, 11 (Alaska App. 1986). 4 

                 This court has upheld community caretaker stops in cases where the facts 

suggested that a motorist might need assistance, or that police intervention was necessary 
to address a potential hazard. 5 

                 In its brief to this Court, the State suggests that Trooper Altepeter might 

have inferred, from his observation of Burnett's spinning tires, that Burnett was having 

difficulty driving, caused either by illness or by mechanical trouble, and that Burnett 

therefore posed a hazard to himself or to the public, even if Burnett had broken no law. 

                 The State relies in particular on this Court's decision in Crauthers and this 

Court's decision in McKean v. State, Alaska App. Memorandum Opinion No. 1479 

(September 16, 1987), 1987 WL 1357093 - two cases in which investigative stops were 

found to be justified by the community caretaker function. 

                 In Crauthers, the driver of a vehicle stopped some thirty feet in front of a 

yield sign, and then rolled down his window.             A trooper on routine patrol activated his 

overhead   lights   and   contacted   the   driver,   thinking   that   the   driver's   unusual   actions 

    4   See  South   Dakota   v.   Opperman,   428   U.S.   364,   375-76;   96   S.Ct.   3092,   3100;   49 

L.Ed.2d   1000   (1976)   (upholding   an   inventory   search   of   an   impounded   vehicle,   in   part 
because there was no indication that the inventory was "a pretext concealing an investigatory 
police motive", and noting that this was also true with respect to the community caretaker 
search of a vehicle conducted by the police in Cady v. Dombrowski). 

    5    Weil v. State, 249 P.3d 300, 301-02 (Alaska App. 2011) (listing cases). 

                                                   - 7 -                                              2337

----------------------- Page 8-----------------------

indicated   a   need   for   directions   or   some   other   help. 6       This   court   upheld   the   stop, 

concluding that the trooper reasonably interpreted the driver's conduct to be a request 
for assistance. 7 

                  In McKean, an officer observed the driver of a van stop three times in the 
middle of the street within one block. 8              The officer initiated a traffic stop because he 

suspected      that   the  vehicle    was    malfunctioning        or  that   the  occupants     were    having 

problems; he did not suspect the driver was intoxicated until the driver failed to yield and 
ran a red light. 9    This court held that the officer was justified in stopping the vehicle to 

see if there was a problem. 10 

                 But Altepeter did not testify that he believed Burnett needed assistance, or 

that the circumstances led him to believe that he needed to intervene to prevent harm to 

Burnett   or   to   the   motoring   public   (aside   from   Altepeter's   concern   that   Burnett   was 

intoxicated).  Thus, the State presented no evidence to satisfy the subjective prong of the 

community caretaker doctrine. 

                 We note that the Crauthers decision, to the extent it requires the State to 

present   proof   of   the   officer's   subjective   motivation,   is   at   variance   with   the   normal 

"objective   circumstances"   approach   to   issues   of   search   and   seizure.            As   this   Court 

explained in Deemer v. State : 

                  [Normally,] the propriety of an arrest or a warrantless search 
                  is assessed under an objective evaluation of the facts known 

    6    727 P.2d at 10.

    7    Id. at 11. 

    8    1987 WL 1357093 at *1.

    9    Ibid .

     10  Ibid . 

                                                      - 8 -                                                2337

----------------------- Page 9-----------------------

                to the police, rather than on the ... officer's subjective belief 
                or   understanding     as  to  why   the  arrest  or  the   search   is 
               justified.  The Fourth Amendment is not violated when the 
                arresting officer is unable to correctly articulate the basis for 
                the arrest or the search.     Rather, the Fourth Amendment is 
                violated when the arrest or the search is unreasonable under 
                the facts known to the police. 

244 P.3d 69, 72 (Alaska App. 2010). 11 

                However, the State does not argue that Crauthers was wrongly decided, and 

Crauthers is the controlling precedent on this issue. Accordingly, the evidence presented 

in the district court is legally insufficient to support the stop of Burnett's vehicle under 

the community caretaker doctrine. 

                The State offers one final justification for the stop in this case:         the State 

suggests that the stop of Burnett's vehicle was justified by a reasonable suspicion that 

Burnett was driving under the influence. 

                In its ruling, the district court did not rely on this theory to uphold the stop. 

Nevertheless, the State - as the appellee in this litigation - is entitled to argue for 

affirmance of the district court's decision on any legal ground revealed by undisputed 
facts in the trial court record. 12 

                A police officer may have reasonable suspicion to believe that a driver is 

under the   influence even though the officer does not observe the driver actually do 

something dangerous.  As this Court explained in State v. Moran, 667 P.2d 734 (Alaska 

    11  Citing Bertilson v. State, 64 P.3d 180, 185 (Alaska App. 2003); Snider v. State, 958 

P.2d 1114, 1117-18 (Alaska App. 1998); Beauvois v. State, 837 P.2d 1118, 1121-22 n. 1 
(Alaska App. 1992); State v. Kendall, 794 P.2d 114, 116-17 (Alaska App. 1990). 

    12  Linehan v. State, 224 P.3d 126, 140 (Alaska App. 2010). 

                                                - 9 -                                            2337 

----------------------- Page 10-----------------------

App. 1983), "[i]t is sufficient if the officer observes facts which [support a reasonable 

belief] that the person to be stopped is dangerous." Id. at 736 (emphasis in the original). 

                 Thus,   in  Ebona   v.   State,   577   P.2d   698,   701   n.   12   (Alaska   1978),   our 

supreme      court   concluded      that  the  police   had   a  reasonable     suspicion     to  stop   the 

defendant's      vehicle    because     they   had   earlier   observed     him    walking,    apparently 

intoxicated, and then, about an hour later, they saw him driving a car that weaved within 

its lane of traffic on two streets.      In Hamman v. State, 883 P.2d 994, 995 (Alaska App. 

1994), this Court upheld a traffic stop where the officer observed the defendant's vehicle 

weave noticeably within its lane of travel, cross the fog line onto the shoulder of the 

road, and then jerk back into the proper lane. 

                 We    have    also  upheld    DUI    traffic  stops   in  a  number     of  unpublished 


                 In Hooton v. State, Alaska App. Memorandum Opinion No. 5476 (May 6, 

2009), 2009 WL 1259360 at *2, the officer observed the defendant stagger out of a bar 

and, ten minutes later, saw road workers yelling at the defendant as he drove his vehicle 

through a line of traffic cones and over a freshly painted crosswalk.  In Brumley v. State, 

Alaska App. Memorandum Opinion No. 3263 (October 11, 1995), 1995 WL 17221321 

at *1-2, the defendant signaled a left turn and then, after waiting ample time to turn, 

continued   straight,   flashing   her   brake   lights   several   times   as   she   drove   away.      In 

upholding this stop, we stated that the unusually long stop in the turn lane, coupled with 

repeated braking, "reasonably indicated that the ... driver was experiencing ongoing 

difficulty or impairment rather than simply momentary hesitation or indecision."  Id. at 


                 InDelgado v. State, Alaska App. Memorandum Opinion No. 4140 (October 

20, 1999), 1999 WL 34002419 at *1-2, the defendant's vehicle remained stopped at a 

green light for ten to fifteen seconds, drove through the intersection "almost at a crawl", 

                                                  -  10 -                                             2337

----------------------- Page 11-----------------------

and then continued to drive slowly for one or two blocks.  In Lewis v. State, Alaska App. 

Memorandum Opinion No. 1282 (November 26, 1986), 1986 WL 1161162 at *1, the 

officer observed the defendant driving at a higher than normal rate of speed and then, 

when   the   defendant   made   a   turn,   the   defendant   drove   off   the   paved   portion   of   the 

roadway onto the unpaved shoulder.  And in Hicks v. State, Alaska App. Memorandum 

Opinion No. 2626 (February 24, 1993), 1993 WL 13156640 at *1, the officer observed 

the defendant driving at an unusually slow speed (35 miles per hour in a 55-mile-per­ 

hour zone) when the slow speed could not be attributed to driving conditions.  The 

defendant then pulled off the road and stopped his vehicle, with its turn signal blinking, 

about four car lengths beyond the only driveway in that vicinity - leading the officer 

to suspect that the driver had missed his turn. 

                 In   all   these   cases,   the   officer's   observations   gave   rise   to   an   objective, 

substantial   possibility   -   not   just   a   hunch   -   that   the   defendant   was   driving   while 
impaired. 13 

                 In Burnett's case, Trooper Altepeter saw Burnett perform a normal stop at 

a stop sign, and also saw Burnett drive normally after making a left turn.                      The only 

suspicious activity that Altepeter observed was Burnett's method of making the turn: 

Burnett "peeled out" by spinning his tires as he traversed the initial one-third to one-half 

of the intersection. 

                 Altepeter testified that the roads were not particularly icy, and thus road 

conditions seemingly did not account for the spinning tires.                Altepeter further testified 

that, based on his training and experience, the fact that Burnett spun his tires for that 

distance caused Altepeter to suspect that Burnett was under the influence.                      However, 

    13  See State v. Moran, 667 P.2d at 736. 

                                                  -  11 -                                               2337 

----------------------- Page 12-----------------------

Altepeter did not explain what aspect of his training   and   experience led him to this 

conclusion, other than the fact that Burnett's behavior was unusual. 

                 The facts of Burnett's case are similar to the facts of two cases from other 

states   -   cases   where   courts   held   that   a   driver's   act   of   unnecessarily   spinning   their 

vehicle's tires, without more, did not establish reasonable suspicion to believe that the 

driver was impaired. 

                 In  State   v.   Pepin,   920   A.2d   1209   (N.H.   2007),   the   officer   stopped   the 

defendant's       vehicle    because     the  defendant's      tires  squealed     when     he   entered    an 
intersection   after   the   light   changed. 14    The   officer   testified   that   it   was   shortly   after 

midnight on "club night", and that road conditions were dry (in other words, the road 
conditions did not explain the squealing tires). 15 

                 The officer testified that he stopped Pepin because he suspected that Pepin 

had   violated   a   statute   that   barred   drivers   from   engaging   in   "exhibition   of   speed   or 
acceleration". 16     The New Hampshire Supreme Court concluded that Pepin's act of 

briefly making his tires squeal, without more, did not establish reasonable suspicion that 
the road racing statute had been violated. 17            The New Hampshire court also ruled that, 

in   the   absence   of   evidence   suggesting   that   Pepin   had   been   drinking   (for   example, 

evidence that he had just pulled out of a bar parking lot, or that there were bars in the 

immediate vicinity), Pepin's act of briefly squealing his tires did not establish reasonable 
suspicion that he was intoxicated. 18 

    14   920 A.2d at 1210. 

    15  Ibid.

    16  Id. at 1211 (citing N.H. Statute § 265:75).

    17  Id. at 1212.

    18  Ibid.

                                                   -  12 -                                               2337

----------------------- Page 13-----------------------

                The Texas decision of State v. Guzman, 240 S.W.3d 362 (Tex. App. 2007), 

presents facts even closer to Burnett's case.            In  Guzman, the defendant was stopped 

because,     after  his   traffic  light  turned    green,   and   as   he  accelerated     through    the 

intersection, one of his rear tires spun for three to six seconds, causing the tire to smoke 
and to appear shiny. 19     The Texas Court of Appeals ruled that the spinning tire, standing 

alone,    did   not  establish    reasonable     suspicion    to  believe    that  the  defendant     was 
intoxicated. 20 

                Compare the decision of the Texas Court of Criminal Appeals in Foster v. 

State, 326 S.W.3d 609 (Tex. Crim. App. 2010), where the court held that there was 

reasonable suspicion to believe that the defendant was intoxicated when, late at night in 

the bar district, the officer observed the defendant's vehicle lurch forward while it was 
stopped at a red light, then make a revving sound, and then lurch forward again. 21 

                Like   the   New   Hampshire   and   Texas   courts   whose   decisions   we   have 

summarized here, we conclude that Burnett's act of unnecessarily spinning his tires, 

without more, is not a sufficient indication of intoxication to justify a traffic stop for 

driving under the influence. 

                We address one further issue, in the interest of completeness.  The City of 

Bethel   (where   this   case   arose)   has   enacted   traffic   ordinances.   One   of   those   traffic 

ordinances, § 10.02.210, is entitled "Turning, starting and signals on turning - Starting 
and stopping - Starting parked vehicle". 22           This ordinance reads:        "The city adopts by 

reference 13 AAC 02.210 in its entirety." 

    19  240 S.W.3d at 365. 

    20  Id. at 368. 

    21  Foster, 326 S.W.3d at 610, 612, 614. 

    22  Available at 

                                                 - 13 -                                               2337 

----------------------- Page 14-----------------------

                As we explained in State v. Hamilton, 216 P.3d 547, 548 (Alaska App. 

2009), 13 AAC 02.210 is a state traffic regulation. As originally enacted, subsection (b) 

of this regulation made it unlawful for a driver to "accelerate a vehicle which is stopped, 

standing[,] or parked on or along a highway[,] or which is entering a highway, so rapidly 
as to unnecessarily cause the tires to squeal or spin". 23        However, the Alaska Department 

of Public Safety repealed this tire-spinning clause of the regulation in 1979. 24 

                The City of Bethel enacted its ordinance in 1993. See Bethel Ordinance 93­ 

07, § 5.    Thus, by the time the City of Bethel adopted 13 AAC 02.210 as the law of 

Bethel, this state regulation no longer prohibited unnecessary tire-spinning.                   For this 

reason, the traffic stop in Burnett's case can not be justified on the theory that Burnett's 

act of spinning his tires was unlawful of itself. 


                Because we conclude that the traffic stop of Burnett's vehicle was unlawful, 

the evidence obtained as a result of this traffic stop must be suppressed.  And because the 

primary evidence of Burnett's impairment was obtained as a result of this traffic stop, 

Burnett's conviction for driving under the influence is REVERSED. 

    23  Hamilton, 216 P.3d at 548. 

    24  Ibid . 

                                                 -  14 -                                              2337 
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