TOBY SEXTON v. STATE OF ALASKA (2010)

NOTICE Memorandum decisions of this court do not create legal precedent.  See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3).  Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT

Toby J. Sexton was charged with driving under the influence and refusal to submit to a chemical test.   The State dismissed the DUI charge, and based on stipulated facts, the trial court convicted him of refusal to submit to a chemical test.¹  Sexton appeals the denial of his motion to suppress evidence.

Sexton argues that he was illegally seized when Alaska State Trooper Albert Bell contacted him.   But we conclude Trooper Bell's initial contact with Sexton was not a seizure, and by the time the contact became a seizure, Trooper Bell had reasonable suspicion to justify the detention.   We affirm the judgment of the district court.

Facts and proceedings

On June 13, 2008, Trooper Bell was driving on the Old Steese Highway in Fairbanks near Trainor Gate Road at about 2 a.m. He saw a car driving in the parking lot of the Club Alaskan Bar that stopped right before entering the street.   Trooper Bell saw the driver get out of the car, open the rear door of the vehicle, and yell at someone inside the car.   Trooper Bell was concerned that there was an altercation occurring, so he stopped his vehicle nearby without activating his emergency lights and approached on foot.   Trooper Bell walked up to the driver, Sexton, to inquire if everything was all right.

Immediately upon contacting Sexton, Trooper Bell smelled an odor of alcohol on Sexton's breath, and he saw that Sexton had bloodshot, watery eyes and slurred speech.   These observations and the way Sexton was standing led Trooper Bell to conclude that Sexton was intoxicated.   Trooper Bell ordered Sexton to get into the car, for officer safety reasons, and then commenced a DUI investigation.   Based on the evidence he gathered, the trooper charged Sexton with driving under the influence.²  Sexton later refused to submit to a chemical test.³

Sexton filed a motion to dismiss, claiming the trooper illegally seized him when he initially approached his vehicle, and that all evidence subsequent to the contact should be suppressed.   District Court Judge Winston S. Burbank denied Sexton's motion.

Pursuant to an agreement, the State dismissed the DUI charge, and based on stipulated facts, the court convicted Sexton of refusal to submit to a chemical test.

Discussion

Sexton argues that Judge Burbank erred when he denied Sexton's motion to suppress.   Sexton claims he was detained when Trooper Bell initially approached him and that the trooper did not have reasonable suspicion to seize him at that time.

In ruling on Sexton's motion to suppress, Judge Burbank held an evidentiary hearing and, based on the testimony at the hearing, made factual findings.   When reviewing the denial of a motion to suppress, we review the record in the light most favorable to the trial court's ruling and we accept the trial court's findings unless they are clearly erroneous.⁴  Judge Burbank's findings are supported by the record and are not clearly erroneous.

We conclude Trooper Bell did not seize Sexton when initially making contact

Based on the district court's findings, Trooper Bell's initial contact with Sexton was not a seizure.⁵  Sexton had been driving in a parking lot and stopped his vehicle before entering the street.   Trooper Bell stopped his patrol car nearby, with the front of his car facing the driver's side of Sexton's vehicle.   The trooper did not turn on his overhead lights or block Sexton in.   After he got out of his vehicle, Trooper Bell walked up to Sexton to inquire if everything was all right.

Based on this record, we conclude the trooper's act of making contact with Sexton did not constitute a seizure.   There is no Fourth Amendment seizure when an officer merely approaches a parked car on the street or in another public place and puts a question to the driver.⁶  A Fourth Amendment seizure “exists ‘[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.’ ” ⁷  A “show of authority” is defined as “a circumstance under which a reasonable person, in view of the objective facts surrounding the incident, would believe that he is not free to leave.” ⁸  The critical inquiry is whether the officer, although perhaps making inquiries a private citizen would not be expected to make, otherwise has conducted himself in a manner consistent with what would be viewed as a nonoffensive contact if occurring between two ordinary citizens.⁹  Under the circumstances in this case, we are satisfied Sexton was not subjected to an investigatory stop when Trooper Bell stopped his car nearby, did not turn on his overhead lights, and approached Sexton on foot to ask if everything was all right.

After he made contact with Sexton, Trooper Bell had reasonable suspicion for an investigatory stop

The contact may have turned into a seizure when Trooper Bell instructed Sexton to get back into his vehicle and requested that he produce identification.   But even if Trooper Bell seized Sexton at this point, he already had reasonable suspicion to investigate Sexton for DUI.

In Romo v. Anchorage, we concluded an officer had reasonable suspicion to investigate where the officer had seen Romo driving, had smelled the odor of alcohol, and had heard Romo admit he had been drinking.   We held that under those circumstances, the officer was justified in performing an investigatory stop.¹⁰

In Sexton's case, Trooper Bell saw Sexton driving at approximately 2 a.m. in a bar parking lot.   Sexton stopped his car before entering the street, got out, and started yelling at a passenger in his vehicle.   Once he made contact with Sexton, Trooper Bell observed that Sexton had a strong odor of alcohol, bloodshot, watery eyes, and slurred speech.   Trooper Bell suspected from these observations, and from the way Sexton was standing, that Sexton was intoxicated.   Based on this evidence, Trooper Bell had reasonable suspicion to investigate Sexton for the crime of driving under the influence.   Therefore, Trooper Bell was justified in seizing Sexton for the purpose of investigating whether Sexton was driving under the influence.

Conclusion

The judgment of the district court is AFFIRMED.

FOOTNOTES

FN1. AS 28.35.032(a)..  FN1. AS 28.35.032(a).

FN2. AS 28.35.030(a)..  FN2. AS 28.35.030(a).

FN3. AS 28.35.032(a)..  FN3. AS 28.35.032(a).

FN4. State v. Wagar, 79 P.3d 644, 650 (Alaska 2003)..  FN4. State v. Wagar, 79 P.3d 644, 650 (Alaska 2003).

FN5. See Torrey v. Hamilton, 872 P.2d 186, 188 (Alaska 1994) (stating that we may affirm a judgment on any grounds the record supports, even if not relied on by the trial court);  Millman v. State, 841 P.2d 190, 195 (Alaska App.1992)..  FN5. See Torrey v. Hamilton, 872 P.2d 186, 188 (Alaska 1994) (stating that we may affirm a judgment on any grounds the record supports, even if not relied on by the trial court);  Millman v. State, 841 P.2d 190, 195 (Alaska App.1992).

FN6. Waring v. State, 670 P.2d 357, 363 (Alaska 1983) (citing Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983));  Barrows v. State, 814 P.2d 1376, 1378-79 (Alaska App.1991)..  FN6. Waring v. State, 670 P.2d 357, 363 (Alaska 1983) (citing Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983));  Barrows v. State, 814 P.2d 1376, 1378-79 (Alaska App.1991).

FN7. Romo v. Anchorage, 697 P.2d 1065, 1068 (Alaska App.1985) (quoting Waring, 670 P.2d at 363)..  FN7. Romo v. Anchorage, 697 P.2d 1065, 1068 (Alaska App.1985) (quoting Waring, 670 P.2d at 363).

FN8. Id. (citing Waring, 670 P.2d at 363-64)..  FN8. Id. (citing Waring, 670 P.2d at 363-64).

FN9. Waring, 670 P.2d at 364..  FN9. Waring, 670 P.2d at 364.

FN10. Romo, 697 P.2d at 1069..  FN10. Romo, 697 P.2d at 1069.

COATS, Chief Judge.