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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Miller (05/08/2009) sp-6369
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) | |
| ) Supreme Court No. S- 12483 | ||
| Petitioner, | ) | |
| ) Court of Appeals No. A-9484 | ||
| v. | ) District Court No. 1JU-05-872 CR | ) |
| MICHAEL MILLER, | ) O P I N I O N | |
| ) | ||
| Respondent. | ) No. 6369 - May 8, 2009 | |
| ) | ||
Petition for Hearing from the Court of
Appeals of the State of Alaska, on appeal
from the District Court of the State of
Alaska, First Judicial District, Juneau,
Keith B. Levy, Judge.
Appearances: Tamara E. de Lucia, Assistant
Attorney General, Anchorage, and Talis J.
Colberg, Attorney General, Juneau, for
Petitioner. Douglas O. Moody, Assistant
Public Defender and Quinlan Steiner, Public
Defender, Anchorage, for Respondent.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
CARPENETI, Justice.
MATTHEWS, Justice, with whom, FABE, Chief Justice,
joins, dissenting.
I. INTRODUCTION
I. A police officer, responding to a 911 call reporting a
domestic dispute in the parking lot of a bar late at night,
stopped a car leaving the lot that matched the description
provided by the 911 caller. The driver, subsequently charged
with failure to take a breath test, moved to suppress evidence
discovered as a result of the investigative stop. The district
court denied the motion to suppress and the driver was convicted.
The court of appeals reversed. Because the district court
properly found that the officer had an objective basis to believe
that a crime had occurred or that one was imminent, we reverse
the decision of the court of appeals and reinstate the drivers
conviction.
II. FACTS AND PROCEEDINGS
A. Facts
On July 13, 2005, at approximately 12:30 a.m., a woman
called emergency 911 to report that a man and a woman were
fighting in the parking lot of Henrys Bar in Juneau. The caller
clarified her statement that the couple was fighting by saying
not like physical punching, but like yelling, I mean fighting and
pointing, and like waving of arms. She indicated that the man
and woman were a couple or possibly siblings. The caller stated
that the man was approximately a foot and a half taller than the
woman, and further described each individual. The caller also
indicated that the couple was standing in front of a white Subaru
WRX with its doors open.
After receiving the 911 call the police dispatcher
contacted Officer Keith Mickelson who was on patrol in the
immediate area. The dispatcher reported to Officer Mickelson
that there was a verbal 10-16 police code for a domestic dispute
occurring in the parking lot of Henrys Bar, and that the
complaint involved a man and a woman arguing beside a white
Subaru.
Officer Mickelson approached the parking lot in his
vehicle within moments of receiving the call and observed the
white Subaru parked in front of Henrys; he noted that people
were getting into the Subaru. As he entered the parking lot the
Subaru was already driving across the lot toward him. The two
vehicles passed within eight to ten feet of each other. Officer
Mickelson could see the driver, and could tell that there were
two other individuals in the vehicle, but could not determine
whether any occupants of the car had suffered any injuries or
whether there was other evidence of violence.
The officer brought his vehicle behind the Subaru and
turned his police lights on when the Subaru was stopped at the
stop line at the exit from the parking lot. Officer Mickelson
approached the vehicle and spoke with the driver, Michael Miller,
through the Subarus open window. Officer Mickelson asked Miller
what was going on with the argument at Henrys Bar. When Officer
Mickelson looked at the two female passengers they shook their
heads in a gesture that the officer interpreted as an indication
that everything was fine. Officer Mickelson, having noticed
Millers bloodshot, watery eyes, and having detected the smell of
alcohol, turned his attention back to Miller. Miller was
ultimately arrested and charged with driving under the influence,
refusal to submit to a chemical test, and two counts of reckless
endangerment.
B. Proceedings
Miller filed a motion to suppress all evidence obtained
as a result of Officer Mickelsons investigative stop, arguing
that the officer lacked the reasonable suspicion necessary to
justify the stop. The district court held an evidentiary hearing
on the motion in September 2005. Officer Mickelson was the only
witness to testify at the hearing. Recordings of the 911 call
and the communication between the police dispatcher and Officer
Mickelson were also played at the hearing.
At the conclusion of the hearing, District Court Judge
Keith B. Levy made oral findings that Officer Mickelson had
reasonable suspicion sufficient to justify the investigative stop
and, accordingly, denied Millers motion to suppress. Judge Levy
expanded on his findings and conclusions in a written decision.
He found that [a]lthough Officer Mickelson did not observe the
dispute personally, the information he had was sufficient to
establish a substantial possibility that a domestic violence
assault was occurring, had occurred, or was about to occur.
Judge Levy also found that the potential harm of domestic
violence, when weighed against the intrusiveness of the
investigatory stop in this case, is sufficient to justify the
stop.
After Judge Levy issued his order denying the motion to
suppress, the parties entered into a Cooksey1 plea under which
they recognized that the outcome of the motion to suppress was
dispositive of the case and agreed to allow Miller to retain the
right to appeal from the district courts denial of his motion to
suppress. Miller pled guilty to refusal to submit to a breath
test and the other charges were dropped.
Miller appealed the district courts denial of his
motion to suppress. The court of appeals concluded that the stop
was illegal because Officer Mickelson had no objective basis to
believe that the reported argument had led, or would lead, to a
crime, and that the district court therefore erred in denying
Millers motion to suppress.2 Accordingly, the court of appeals
reversed Millers conviction.3 We granted the states petition for
hearing, and now reverse the decision of the court of appeals.
III. STANDARD OF REVIEW
I. We review a denial of a motion to suppress evidence in the
light most favorable to upholding the trial courts ruling.4 The
trial courts findings of fact will not be disturbed unless they
are clearly erroneous.5 We independently determine whether the
trial courts factual findings support its legal conclusions.6
IV. DISCUSSION
The Court of Appeals Erred in Holding that the District
Court Should not Have Denied Millers Motion To Suppress
and in Reversing Millers Conviction on That Basis.
The parties agree that Miller was subjected to an
investigative stop.7 The resolution of this case depends on
whether the stop was legal. Under the standard that we set out
in Coleman v. State,8 a police officer in Alaska may conduct an
investigative stop when the officer has a reasonable suspicion
that imminent public danger exists or serious harm to persons or
property has recently occurred.9 In order to satisfy the
reasonable suspicion requirement, the officer must have some
minimal level of objective justification for making the stop.10
The objective justification must be something more than an
inchoate and unparticularized suspicion or hunch.11 The officer
must be able to point to specific and articulable facts which,
under the totality of
the circumstances known to the officer and in light of the
officers experience, support making the stop.12
In evaluating whether a specific stop was legal, Alaska
courts apply a balancing test that was first articulated in State
v. G.B. by then-Chief Judge Bryner of the court of appeals.13 The
degree of threat to the public safety and the imminence of that
threat (or the seriousness of an already committed crime and the
recency of the crime), must be weighed against the strength of
the officers reasonable suspicion and the intrusiveness of the
stop.14 A minimally intrusive stop based on solid information
indicating that a crime is actually in progress or has just been
completed may be justified under Coleman even when the crime
itself is not a felony and involves harm that in other contexts
might not seem particularly serious.15
Because the Coleman and G.B. inquiries must be
conducted on the basis of the individual circumstances of each
case,16 we consider four questions: (1) How serious was the
alleged crime to which the officer was responding? (2) How
immediate was the alleged crime to the investigative stop? (3)
How strong was the officers reasonable suspicion? (4) How
intrusive was the stop?17 In carrying out this inquiry, we review
the district courts denial of the motion to suppress in the light
most favorable to upholding that decision.18 We will uphold the
trial courts findings of fact unless those findings are clearly
erroneous.19
1. How serious was the alleged crime to which Officer Mickelson
was responding?
The state argues that Officer Mickelson was responding
to a reported crime, asserting that the officer had a reason to
believe that a domestic disturbance had taken place moments
before he arrived at the scene. Miller disagrees, arguing that
[t]he 911 call did not provide any indication that a crime had
occurred or was about to occur because arguing is not a crime.
Judge Levy found that Officer Mickelson knew that a domestic
disturbance had taken place moments before he arrived on the
scene. The court of appeals conclusion that the investigative
stop was illegal rested upon the courts determination that
Officer Mickelson had no objective basis for believing that a
crime had occurred or that one was imminent because Officer
Mickelson was responding to a report of an argument and had no
reason to infer that this was a domestic violence situation.20
The court of appeals failed to accord the district
courts factual findings the deference to which they were
entitled, and it did not consider the factual context in which
Officer Mickelson acted. He was responding to a citizens 911
call reporting to the dispatcher that a couple was fighting,
relayed to him as a domestic verbal dispute. Thus, the district
courts finding that the officer was acting on information that a
domestic disturbance had taken place only moments before he
arrived was not clearly erroneous. Moreover, the court of
appeals failed to recognize the danger that a report of a verbal
domestic dispute portends. As Officer Mickelson testified, such
a report may indicate something more serious and, in his
experience, a verbal dispute always precedes a physical one. A
study issued in September 2005 ranked Alaska first in the nation
for the rate of intimate partner violence ending in homicide.21
Nationally, for homicides in which the victim-to-offender
relationship could be identified, ninety-two percent of female
victims were murdered by someone they knew, and sixty-two percent
were killed by husbands, ex-husbands, or boyfriends.22
In holding that the report of a verbal domestic
argument did not provide reasonable suspicion to justify the stop
of Millers vehicle, the court of appeals determined that Officer
Mickelson 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.23 But as the state correctly points out,
physical contact is not a necessary element of domestic violence
or of assault in the fourth degree.
Alaska Statute 11.41.230(a)(3) states that a person
commits the class A misdemeanor of assault in the fourth degree
when by words or other conduct that person recklessly places
another person in fear of imminent physical injury.
Under AS 18.66.990(3), domestic violence includes the commission
or attempted commission by a household member against another
household member of a crime against the person under AS 11.41.
The definition of household member under AS 18.66.990(5) is very
broad, and includes, among others, adults or minors who live
together or who have lived together, who are dating or who have
dated, who are engaged in or who have engaged in a sexual
relationship, or who are related to each other up to the fourth
degree of consanguity.
Here, Officer Mickelson understood that he was
responding to a report of a verbal 10-16 or verbal domestic
dispute involving a man who was a foot and a half taller than
the woman with whom he was arguing vociferously in a parking lot
in the vicinity of a bar near closing time. The argument was
sufficiently extreme to prompt a citizens 911 call. The police
dispatcher who communicated this information to Officer Mickelson
had received the 911 call from a person who stated that a man and
a woman described by the caller as a couple or siblings24 were
fighting in the parking lot, even though the fight involved no
physical punching. Because domestic violence can include an
incident in which an individual makes a verbal threat that places
a partner or sibling in fear of imminent physical injury,25 and
because the 911 report suggested that all of those elements could
have been present in this case, we conclude that it was
reasonable for the police dispatcher to believe that a crime
involving domestic violence had been committed, was being
committed, or would soon be committed, and to convey this
information to Officer Mickelson.
Miller attempts to downplay the risk of domestic
violence and therefore the severity of the alleged crime by
asserting that there was only some small possibility that an
assault would occur given that most arguments do not end in
criminal activity. But most arguments do not lead to 911 calls
by disinterested citizens. Miller also argues that the state is
trying to create an exception to the Coleman standard whereby the
police could detain a citizen on nothing more than the anonymous
allegation that they have engaged in a verbal argument with
anyone who meets the extraordinarily broad statutory definition
of household member in AS [18.66.]990(5). The state responds
that [b]ecause domestic violence crimes are so pervasive and yet
so underreported, police must be encouraged to investigate all
reports of domestic violence. The state is right: Alaska courts
have repeatedly recognized the problem of domestic violence in
Alaska, and the importance of vigorously resist[ing] complacency
about the problem in the face of the fact that domestic assaults
are so commonplace, and that they typically occur in [private].26
It is also true that domestic disturbances have the potential to,
and often do, lead to injury and death of third persons.27
Miller also appears to suggest that the officer should
have abandoned his investigation once he saw the couple enter the
private vehicle because at that point he had not received
sufficient information to suggest that a crime had occurred, or
was occurring. The fact that the couple had moved from arguing
in public to entering a private vehicle does not mean that
domestic violence had not already occurred, or was not still
occurring. Because the report that Officer Mickelson received
from the dispatcher was consistent with a domestic violence
situation, and because that particular crime is one that
typically occurs in private, Officer Mickelson could reasonably
believe that the crime was ongoing. This reasoning does not
require, as Miller suggests, a departure from the
Coleman standard, but rather involves a recognition of the
continuing problem of domestic violence, and the states
responsibility in protecting against it.
The facts of this case, therefore, can be distinguished
from the facts in Jones v. State,28 relied on heavily by the court
of appeals here. In Jones, the court of appeals held that a
verbal argument alone is insufficient to justify a detention.29
In that case, the police responded to a 911 call that reported an
argument between a tenant and a landlord.30 When the police
separated the tenant and the landlord and began to question them
individually about the dispute, the tenant Jones attempted to
walk away from the officers.31 The police moved to restrain Jones
and, when he resisted, they handcuffed and searched him.32 The
court of appeals ultimately held that the cocaine that was
recovered as a result of the search was inadmissible because the
police had no indication that Jones had assaulted the landlord or
had committed any illegal act and therefore had no basis for
requiring Jones to remain at the scene.33 In that case, unlike
the present, the police had already separated the two individuals
and one attempted to leave, thereby ending the danger that the
argument could escalate and become violent. In contrast, in this
case the parties who were involved in the argument had not been
separated but had instead moved into a private vehicle where the
dispute could continue or even escalate. It is also significant
that Officer Mickelson had a stronger indication in this case
that Miller had committed or was about to commit a crime because
the 911 call provided information that could reasonably be
regarded as a description of domestic violence involving assault
in the fourth degree.
In sum, Officer Mickelson was responding to a situation
that he could reasonably believe may have already satisfied,
currently satisfied, or would soon satisfy all of the
requirements for domestic violence involving assault in the
fourth degree.
2. How immediate was the alleged crime to the investigative
stop?
We have previously stated that the justification
required for an investigative stop of a vehicle leaving the
vicinity of a suspected crime may be lower than the justification
required for a police officer to stop and question a person on
foot because in such a situation, if action is not immediately
taken, there is not likely to be another chance.34 In this case,
after receiving the report from the police dispatcher of a verbal
domestic dispute in the parking lot of Henrys Bar, Officer
Mickelson, who was in the immediate area, headed towards the
parking lot and observed the persons entering an automobile. As
Officer Mickelson arrived in the parking lot, the vehicle was
moving, driving . . . across the parking lot. Officer Mickelson
passed the Subaru and, from a distance of eight or ten feet,
tried to see if anyone in the vehicle was injured or in need of
assistance, but couldnt really see into the car. Officer
Mickelson made the investigative stop when the Subaru had reached
the exit from the parking lot. Officer Mickelson stopped the
vehicle, therefore, only seconds after receiving the call, only
after eliminating any non-intrusive means of ascertaining the
situation, and only when it appeared that there would be no other
opportunities before the vehicle left the vicinity to determine
whether the reported crime had occurred, was still occurring, or
was about to occur. In short, the alleged crime was quite
immediate to the investigative stop.
3. How strong was the officers reasonable suspicion?
1. Under the reasonable suspicion requirement, the officer must
have some minimal level of objective justification for making the
stop.35 The objective justification must be something more than
an inchoate and unparticularized suspicion or hunch.36 The
officer must be able to point to specific and articulable facts
which, under the totality of the circumstances known to the
officer and in light of the officers experience, support making
the stop.37 In noting the difference between the quantum of
information an officer must have in order to justify a stop
compared to that needed in order to justify an arrest, the court
of appeals has stated that in the case of an investigative stop
it will suffice that there exists a substantial possibility that
criminal conduct has occurred, is occurring, or is about to
occur.38 And relevant information known to a police dispatcher
may be imputed to a police officer who conducts an investigative
stop and so may be considered for purposes of evaluating whether
the stop was supported by a reasonable suspicion.39
Here, Officer Mickelson was responding to a report from
the police dispatcher of a verbal domestic [dispute] . . . at the
end of the building in the parking lot near Henrys, and the call
was that the subjects were standing near a white Subaru with the
doors open. When Officer Mickelson came into view of the parking
lot he observed the white Subaru parked at Henrys, . . . and the
people were getting in the Subaru. Officer Mickelsons decision
to stop the vehicle, therefore, was based on the specific and
articulable facts that he had received a report from his police
dispatcher indicating that there was a domestic dispute involving
individuals near a white Subaru at the parking lot of Henrys bar,
and that when he arrived at the location he observed individuals
entering into the white Subaru.
Additionally, Officer Mickelson interpreted the facts
reported to him by the police dispatcher, along with his own
observations, in the light of his own experience as a police
officer.40 Officer Mickelson testified that he had experience
investigating domestic disputes and that in his experience almost
every domestic situation Ive been involved with has started out
verbally. Accordingly, even though the report of fighting
described not like physical punching, but like yelling, . . .
fighting and pointing, and like waving of arms, and a verbal
domestic disturbance, Officer Mickelsons experience led him to
believe that there was a substantial possibility that the dispute
could escalate into physical violence, or may already have
escalated.41
Miller argues that the information provided by the 911
caller could not support a reasonable suspicion because the 911
call itself indicates that the caller did not have personal
knowledge. But a review of the relevant law and the evidence in
this case refutes that claim.
In Alaska, [a] stop may be based upon an informants
tip, so long as there is reason to believe that the informant is
credible and a basis for concluding that the information provided
by the informant was based on personal knowledge.42 The court of
appeals has held that information provided by an anonymous caller
can be sufficient to justify an investigative stop when the tip
has some indicia of reliability.43
Millers assertion that the caller did not have personal
knowledge is based on the fact that a third person can be heard
on the recording of the 911 call providing the caller with the
specific make and model of Millers vehicle. On the recording of
the 911 transcript, the caller identifies the vehicle as a car
with its doors open . . . a white one, and then, after another
voice can be heard in the background, adds I guess its a white
Subaru, its like newer, a WRX. Viewing the facts in the light
most favorable to the party that prevailed at the trial court,44
it is clear from the 911 transcript that the caller herself had
observed the arguing couple and the vehicle but had not known the
name of that particular make and model. It is also evident that
the third party offered the specific make and model to provide
more detail to the police. The transcript of the 911 call does
not show that the caller did not have personal knowledge of the
events she was describing; it shows only that the caller was not
familiar with the particular model of vehicle. In addition, some
of the information relayed by the caller to the dispatcher and by
the dispatcher to Officer Mickelson was immediately confirmed
when the officer approached the location provided by the caller
and observed the white Subaru with individuals entering the
vehicle. The information provided by the 911 caller, therefore,
was credible, and based on first-hand knowledge, and had indicia
of reliability.
Because the 911 call was sufficiently credible, and
because the information conveyed from the caller to the
dispatcher described a verbal argument between a man and a woman
involving pointing and arm waving, the police dispatcher had a
reasonable basis for describing the incident to Officer Mickelson
as a verbal domestic dispute.45 And because Officer Mickelson
personally observed the individuals described by the police
dispatcher entering the Subaru, because a domestic assault may
occur even in the absence of a physical attack, and because the
officers personal experience indicated that incidents of physical
domestic violence usually begin as verbal domestic disputes,
Officer Mickelson had a strong suspicion that he was responding
to an incident where there was a substantial possibility that a
crime had occurred, was occurring, or was about to occur. The
court of appeals erred, therefore, in concluding that Officer
Mickelson . . . had no objective basis for believing that a crime
had occurred or that one was imminent.46
4. How intrusive was the stop?
1. As noted, the parties agree that Miller was subjected to an
investigative stop.47 We have recognized that an investigative
stop is an intermediate response between an arrest based on
probable cause and simply allowing a crime to occur, and is
designed to enable the police to determine [a suspicious
individuals] identity or to maintain the status quo momentarily
while obtaining more information.48 Officer Mickelson testified
that he made the investigative stop in this case in order to ask
the driver what was going on with the . . . argument over at . .
. Henrys. Officer Mickelson posed that question to Miller, the
driver of the vehicle, and he asked if everything was okay,
looking at the female passengers as he did so. Officer Mickelson
conducted this brief interview through the open window of the
Subaru. The stop was minimally intrusive. It was only as
Officer Mickelson ensured that no one in the vehicle required
assistance as a result of the argument that his attention was
drawn to the evidence that Miller was driving while intoxicated.
Balancing the factors
Looked at in the light most favorable to upholding the
trial judges factual findings, the following picture emerges:
Officer Mickelson made an investigative stop that involved brief
questioning conducted through the window of the vehicle. This
minimally intrusive investigative stop was based on the officers
reasonable suspicion that a crime of domestic violence had
occurred, was still occurring, or was about to occur, and on his
observation that the individuals involved in the dispute were
leaving the vicinity. The description of the argument that was
reported to the police dispatcher in the 911 call suggested the
presence of all of the elements of domestic violence involving
assault in the fourth degree: the caller described a couple
engaged in a heated argument involving words and actions that had
the potential to place another person in fear of imminent
physical injury.49
In G.B., Chief Judge Bryner emphasized that Coleman is
ultimately rooted in common sense and practicality, and that
courts must evaluate the risk that an investigative stop based on
mere suspicion may be used as a pretext to conduct a search for
evidence. As indicated in Coleman, the fundamental inquiry in
each case is whether a prompt investigation [was] required . . .
as a matter of practical necessity. 50
Here, there is no indication that the purpose of the
investigative stop was to conduct a search for evidence that
Miller was driving under the influence nor that Officer
Mickelsons suspicion of domestic violence was a mere pretext.
There is, however, ample evidence that a prompt investigation by
Officer Mickelson was required as a matter of practical necessity
in order to ascertain whether a domestic violence incident had
occurred, or to prevent a domestic dispute from escalating into
domestic violence.
On each of the four factors that a court must consider
in determining the legality of an investigative stop the
seriousness of the alleged crime, the immediacy of the alleged
crime to the investigative stop, the strength of the officers
reasonable suspicion, and the intrusiveness of the stop51 the
facts of the present case support the legality of the stop at
least as strongly, if not more strongly, than the facts at issue
in G.B. where the court of appeals reversed the trial courts
suppression order and allowed the admission of evidence gathered
through an investigative stop.52 First, the alleged crime in G.B.
was an unspecified theft from a video store,53 a property crime,
whereas here the alleged crime involved potential domestic
violence, a crime against persons. Second, in both G.B. and the
present case, the officers made their respective investigative
stops almost immediately after receiving the police dispatch.54
In G.B., however, the suspect was on foot,55 and therefore likely
to remain in the area,56 whereas in the present case the suspect
had entered his vehicle and was leaving the scene at the time the
officer made the stop. Third, on the question of the officers
reasonable suspicion, in G.B. the officer stopped the suspect
based on a physical description relayed by the police dispatcher
and the suspects presence in the general vicinity of the reported
crime.57 Here, the officer was given a description of the
individuals involved in the argument, their vehicle, and their
location in the parking lot, thus essentially eliminating the
possibility that he would stop the wrong person. Fourth, on the
intrusiveness of the stop, in G.B. the officer asked the suspect
to enter his patrol car and, after recognizing the suspects name
as being associated with a recent trespass into another business,
conducted a patdown search.58 Here, the officer allowed the
suspect to remain in his own vehicle while he asked two brief
questions through the Subarus open window, and only initiated the
arrest when confronted with the drivers bloodshot, watery eyes
and the odor of alcohol. This favorable comparison between the
facts of the two cases is further strengthened by the posture of
the respective cases on appeal: the court of appeals in G.B.
overturned the factual findings of the trial court,59 while our
decision today affirms the trial courts decision, including its
factual findings.
Officer Mickelson was confronted with a difficult
decision when he arrived at the scene and observed the
individuals reported to have been involved in a domestic dispute
leaving the vicinity in a vehicle. We hold that the trial court
did not err in concluding that Officer Mickelson acted
appropriately in taking the necessary and minimally intrusive
step of stopping the vehicle based on his reasonable suspicion
that there was a substantial possibility that the crime of
domestic violence involving assault in the fourth degree had
occurred, was occurring, or was about to occur.60
V. CONCLUSION
We REVERSE the judgment of the court of appeals and
REINSTATE Millers conviction.
MATTHEWS, Justice, with whom FABE, Chief Justice, joins,
dissenting.
The court of appeals applied a legal precept derived
from its decision in Jones v. State.1 The precept is that an
argument, even a loud one, standing alone does not justify an
investigative stop.2 Under the Alaska Constitution,
investigative stops are only permitted if the officer who makes
the stop has reasonable suspicion that a serious crime is
imminent or has recently been committed.3 The court of appeals
principle seems well justified. Arguments are not crimes, much
less serious ones, nor, absent sights or sounds indicating
physical violence, are they closely associated with past recent
or imminent future crimes. Loud and heated arguments are not
infrequent in our society. Sometimes they break out between
strangers. More often they involve acquaintances, couples, or
parents and their children. But only rarely do they degenerate
into physical assaults.
This case seems particularly apt for application of the
court of appeals precept. As the court observed:
Officer Mickelsen, like the officer in Jones,
had no objective basis for believing that a
crime had occurred or that one was
imminent. . . . 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.[4
]
I would add that when Officer Mickelsen arrived at the place
where the argument had taken place he could see that there were
three adults (two women and a man) getting into the white Subaru,
rather than two as had been reported. An imminent domestic
assault was particularly unlikely to spring from such a grouping,
for experience tells us that domestic assaults between adults are
most frequently one-on-one events.
The ongoing case law development process of the court
of appeals should, over time, give concrete meaning to Alaskas
constitutional search and seizure guarantees. In my view, todays
opinion needlessly interferes with this process and fails to give
sufficient weight to our constitutional protections. For these
reasons I would either dismiss the States petition as
improvidently granted or affirm the decision of the court of
appeals.
_______________________________
1 Cooksey v. State, 524 P.2d 1251 (Alaska 1974); see also
Miles v. State,
825 P.2d 904 (Alaska App. 1992).
2 Miller v. State, 145 P.3d 627, 628, 630 (Alaska App.
2006).
3 Id. at 630.
4 State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001)
(citing Castillo v. State, 614 P.2d 756, 765-66 (Alaska 1980)).
5 Id. (citing Chilton v. State, 611 P.2d 53, 55 (Alaska
1980)).
6 Id. (citing Troyer v. State, 614 P.2d 313, 318 (Alaska
1980)).
7 Miller, 145 P.3d at 629.
8 553 P.2d 40 (Alaska 1976).
9 Id. at 46.
10 McQuade v. State, 130 P.3d 973, 976-77 (Alaska App.
2006) (quoting In the Matter of J.A., 962 P.2d 173, 176 (Alaska
1998)).
11 Id. (quoting In the Matter of J.A., 962 P.2d at 176).
12 Id. (quoting Waring v. State, 670 P.2d 357, 365 (Alaska
1983)); see also Gutierres v. State, 793 P.2d 1078, 1080 (Alaska
App. 1990) (citing United States v. Sokolow, 490 U.S. 1, 8
(1989)).
13 769 P.2d 452, 455-56 (Alaska App. 1989).
14 Id. at 456.
15 Id. (citing Coleman v. State, 553 P.2d 40 (Alaska
1976)).
16 Id. at 455.
17 Id. at 456 (holding that degree and imminence of threat
to public safety must be balanced against strength of officers
reasonable suspicion and actual intrusiveness of investigative
stop).
18 State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001).
19 Id. at 1118 (citing Chilton v. State, 611 P.2d 53, 55
(Alaska 1980)).
20 Miller v. State, 145 P.3d 627, 630 (Alaska App. 2006).
21 Violence Policy Center, When Men Murder Women: An
Analysis of 2003 Homicide Data 5 (2005),
www.vpc.org/studies/wmmw2005.pdf.
22 Id. at 3.
23 Miller, 145 P.3d at 630.
24 Miller emphasizes that [t]he caller acknowledged to the
dispatcher that she did not know what relationship existed
between the man and woman and that [t]he state never produced any
evidence that the man and woman were in any sort of domestic
relationship. Because the standard being applied here is
reasonable suspicion, (see Coleman v. State, 553 P.2d 40, 46
(Alaska 1976)) the actual relationship between the man and the
woman matters less than the apparent relationship. The
description provided by the caller could fit a number of the
types of relationships whose members are defined as household
member[s] under AS 18.66.990(5).
25 See AS 18.66.990(3), (5); AS 11.41.230(a)(3).
26 State v. Huletz, 838 P.2d 1257, 1261 (Alaska App.
1992); see also Pickard v. State, 965 P.2d 755, 761 (Alaska App.
1998) (Both the Alaska Legislature and this court have recognized
that domestic violence . . . represents a serious danger to its
victims and a significant harm to society at large.).
27 See State v. Alex, 1JU-06-848 CR (Juneau Super. Ct.
2006) and State v. Smathers, 1JU-06-849 CR (Juneau Super. Ct.
2006) (domestic violence between couple in moving automobile led
to head-on collision with second automobile, killing driver of
second automobile). Empirical studies show that domestic
violence calls consistently rank high in rate of injuries to
responding officers. See, e.g., Desmond Ellis, Alfred Choi, and
Chris Blaus, Injuries to Police Officers Attending Domestic
Distrubances: An Empirical Study, 35 Canadian Journal of
Criminology, 149-68 (1993) (ranking domestic disturbance calls
third in rate of injuries to responding police officers, after
robbery and arresting/controlling/transporting suspects and
prisoners). See also J. David Hirschel, Charles W. Dean, and
Richard C. Lumb, The Relative Contribution of Domestic Violence
to Assault and Injury of Police Officers, 11 Justice Quarterly 99-
117 (1994) (ranking domestic disturbance fourth among ten
categories of police work in ratio of assaults to calls for
service).
28 11 P.3d 998 (Alaska App. 2000).
29 Id. at 1000.
30 Id. at 999.
31 Id.
32 Id.
33 Id. at 1000.
34 Coleman v. State, 553 P.2d 40, 46 n.19 (Alaska 1976).
35 McQuade v. State, 130 P.3d 973, 976-77 (Alaska App.
2006) (quoting In the Matter of J.A., 962 P.2d 173, 176 (Alaska
1998)).
36 Id. (quoting In the Matter of J.A., 962 P.2d at 176).
37 Id. (quoting Waring v. State, 670 P.2d 357, 365 (Alaska
1983)); see also Gutierres v. State, 793 P.2d 1078, 1080 (Alaska
App. 1990) (citing United States v. Sokolow, 490 U.S. 1, 8
(1989)).
38 State v. Moran, 667 P.2d 734, 735-36 (Alaska App. 1983)
(emphasis in original).
39 State v. Prater, 958 P.2d 1110, 1110 (Alaska App.
1998).
40 See Gutierres, 793 P.2d at 1080 (A reasonable suspicion
is one that has some factual foundation in the totality of the
circumstances observed by the officer in light of the officer's
knowledge.).
41 See State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001)
(We review a denial of a motion to suppress in the light most
favorable to upholding the trial courts ruling.); see also Moran,
667 P.2d at 735-36 (stating that substantial possibility that
criminal conduct has occurred, is occurring, or is about to occur
is sufficient to justify investigative stop) (emphasis in
original).
42 Allen v. State, 781 P.2d 992, 993-94 (Alaska App.
1989).
43 Effenbeck v. State, 700 P.2d 811, 812 (Alaska App.
1985).
44 See Joubert, 20 P.3d at 1118.
45 See State v. Prater, 958 P.2d 1110, 1110 (Alaska App.
1998) ([R]elevant information known to a police dispatcher may be
imputed to a police officer who conducts an investigative stop
and so may be considered for purposes of evaluating whether the
stop was supported by a reasonable suspicion.).
46 Miller v. State, 145 P.3d 627, 630 (Alaska App. 2006).
47 Id. at 629.
48 Coleman v. State, 553 P.2d 40, 45 (Alaska 1976)
(quoting Adams v. Williams, 407 U.S. 143, 146 (1972)).
49 See AS 18.66.990(3) (stating that domestic violence
includes the commission or attempted commission by a household
member against another household member of a crime against the
person under AS 11.41); AS 11.41.230(a)(3) (stating that a person
commits the class A misdemeanor of assault in the fourth degree
when by words or other conduct that person recklessly places
another person in fear of imminent physical injury). As for the
persons to whom the domestic violence statutes apply, see AS
18.66.990(5) (defining household members for the purpose of
domestic violence legislation as including adults or minors who
live together or who have lived together, who are dating or who
have dated, who are engaged in or who have engaged in a sexual
relationship, or who are related to each other up to the fourth
degree of consanguity).
50 State v. G.B., 769 P.2d 452, 456 (Alaska App. 1989)
(quoting Coleman, 553 P.2d at 46).
51 See id.
52 Id. at 457.
53 Id. at 453.
54 Id.
55 Id. at 453-54.
56 See supra n.34 and accompanying text.
57 G.B., 769 P.2d at 453-54.
58 Id. at 454.
59 Id.
60 See State v. Moran, 667 P.2d 734, 735-36 (Alaska App.
1983).
1 See Miller v. State, 145 P.3d 627, 629-30 (Alaska App.
2006) (citing Jones v. State, 11 P.3d 998 (Alaska App. 2000)).
2 There is case law in other jurisdictions supporting
this principle. See Van Patten v. State, 697 S.W.2d 919, 920-21
(Ark. App. 1985) (holding officer violated a defendants Fourth
Amendment rights by stopping a vehicle based on a report of a
loud party disturbance). Other cases involving arguments that
had not yet escalated to physical violence have included
aggravating facts supporting a conclusion that reasonable
suspicion existed. See, e.g., Nelson v. State, 556 S.E.2d 527,
529-30 (Ga. App. 2001) (holding a stop was appropriate where a
police officer saw the driver and passenger of a moving car
fighting in a manner suggesting that blows were about to be
struck and causing the vehicle to drift[] in its lane, creating a
danger to the public); People v. Williams, 159 A.D.2d 946, 947
(N.Y. App. 1990) (holding there was reasonable suspicion to
support a stop where the police observed a man and woman arguing
and had received a report that the man had a gun); Commonwealth
v. Shine, 784 A.2d 167, 172-73 (Pa. Super. 2001) (holding stop
was justified where police officer arrived on the scene of what
he perceived to be an escalating violent situation after
receiving a report that two men were on the highway with guns).
3 Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).
4 Miller, 145 P.3d at 630.
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