KYLE JACKOVICH v. STATE OF ALASKA (2011)

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

Kyle M. Jackovich appeals his conviction for felony driving while under the influence.   He claims that the superior court should have granted his motion to suppress the evidence of his intoxication because a state trooper lacked probable cause to stop him for a traffic violation.   For the reasons set out here, we conclude that there was probable cause for the stop and we therefore affirm Jackovich's conviction.

Background

On December 12, 2009, at 10:40 p.m., Jackovich was operating a snowmobile and traveling in a southerly direction in the ditch area running alongside Badger Road. He was heading toward Lions Road. Badger Road is a major two-lane road in the Fairbanks area, serving a number of subdivisions between Fort Wainwright and North Pole. Alaska State Trooper John Ryan was driving his patrol vehicle on Badger Road, and he followed Jackovich for approximately a mile prior to Jackovich reaching Lions Road. Ryan saw Jackovich turn onto Lions Road and watched as he, without stopping, proceeded to the Speedway Lounge, a business that is located a relatively short distance from the intersection of Badger Road and Lions Road.

While following Jackovich, Ryan watched Jackovich cross a number of what Ryan reasonably believed were public side roads as well as some private driveways.   After Jackovich turned onto Lions Road, Ryan followed him as he drove a short distance on Lions Road to reach the parking lot of the Speedway Lounge.   Ryan contacted Jackovich because he believed that Jackovich had committed traffic violations by not coming to a complete stop before he crossed these public roadways.   He also testified that Jackovich had operated his snowmobile on a public roadway—Lions Road. Ryan testified that this was a separate violation of the Alaska Administrative Code.

Upon contacting Jackovich, Ryan noticed signs that he was intoxicated.   Ultimately, Ryan arrested Jackovich for driving while under the influence.   Testing later showed that Jackovich's breath alcohol content was .166 percent.   Because Jackovich had two or more prior qualifying convictions for driving under the influence, he was charged with felony DUI.¹ He was convicted after a bench trial based on stipulated facts.

Prior to trial, Jackovich moved to suppress the evidence obtained from this traffic stop.   He claimed that the traffic stop was unlawful because Ryan had not observed Jackovich committing any traffic offenses.   In particular, Jackovich argued that he had no duty to completely stop before entering Lions Road;  instead, he claimed that under the code, all he was required to do was to yield the right of way to any approaching vehicle.   Jackovich's argument was based on 13 AAC 02.135(b), which is not applicable to snowmobiles.

Superior Court Judge Douglas L. Blankenship held a hearing;  Ryan was the only witness.   Afterwards, Judge Blankenship issued a written decision.   Judge Blankenship denied Jackovich's motion, finding that based on “the facts known to Trooper Ryan,” Ryan reasonably believed that Jackovich had, in violation of 13 AAC 02.455(f)(2), crossed public roads without stopping before he crossed.   Jackovich now appeals.

Discussion

Jackovich argues that Judge Blankenship erred when he found that the State had presented an adequate justification for the traffic stop because Jackovich failed to stop before crossing the side roads.   He asserts that Ryan did not actually rely on this theory when making the stop.   But here, Trooper Ryan's only mistake was that when he cited Jackovich, he referred to the wrong provision of the traffic code—13 AAC 02.257—which regulates vehicles entering roadways from alleys, buildings, private roads, or driveways.   Judge Blankenship found that 13 AAC 02.257 did not apply, but that another provision—13 AAC 02.455—did apply.

Despite listing the wrong regulation in the citation he wrote, Trooper Ryan did not stop Jackovich for entering a roadway improperly from an alley, building, private road, or driveway.   Rather, he testified that he stopped Jackovich for unlawfully crossing public roadways without stopping.   Ryan testified that he was familiar with that area of Badger Road because he patrolled it often.   He said that he was aware that it was a violation for a snowmobile driver to cross roadways without stopping, and that he had written several citations for this offense in the past.

Ryan admitted that the roads in that area are small, but he was certain that Jackovich had crossed them without stopping.   He knew that Lions Road was a roadway, and he said that Jackovich did not stop before he drove on it.   He testified that Jackovich also committed a separate offense when he operated his snowmobile on Lions Road. Ryan said he did not issue citations for every violation he witnessed.

Probable cause to conduct a traffic stop “exists if the facts and circumstances known to an officer would support a reasonable belief that an offense has been or is being committed” by the person subjected to the stop.²  “Probable cause is determined objectively and ‘requires only a fair probability or substantial chance of criminal activity, not an actual showing that such activity occurred.’ ” ³

Whether probable cause exists is a mixed question of law and fact.⁴  Absent clear error, this Court must accept the facts as the lower court finds them.⁵

Judge Blankenship gave two reasons for finding that Ryan had probable cause to stop Jackovich.   The first was that Ryan had a reasonable belief that at least some of the roadways that Jackovich crossed were public ways, and that Jackovich was required to stop his snowmobile before crossing them.   The second reason was that Ryan saw Jackovich violate the traffic code when Jackovich drove his snowmobile onto Lions Road without stopping.

Jackovich argues that the “roads” Ryan saw him cross without stopping were all private driveways.   But this argument is not supported by the record.   There was no evidence that all of the roadways that Jackovich crossed were private drives.   Ryan testified that he regularly patrols that area of Badger Road, that he was familiar with the area, and that from the time he first saw Jackovich until Jackovich reached Lions Road, he saw Jackovich cross public roadways without stopping.

To have probable cause for a traffic stop, a police officer need not observe facts from which the officer could conclusively determine that a violation had occurred.⁶  The test for probable cause does not require police to have knowledge of facts that would be sufficient to sustain a conviction.⁷  Probable cause can exist “even though the facts known to the officer [can] also be reconciled with [the suspect's] innocence.” ⁸

Applying this test to Jackovich's case, it was not necessary for Ryan's observations to conclusively establish that Jackovich drove his snowmobile across public roadways without stopping.   Instead, the question is whether Ryan's observations would warrant a person of reasonable caution in believing that Jackovich had committed this traffic infraction.⁹  Based on the evidence presented to him, Judge Blankenship could conclude that Ryan's observations and knowledge of the area warranted a person of reasonable caution in believing that Jackovich had committed traffic violations by crossing public roadways along Badger Road with his snowmobile without stopping.

Conclusion

We AFFIRM the judgment of the superior court.

FOOTNOTES

FN1. AS 28.35.030(n)..  FN1. AS 28.35.030(n).

FN2. Crawford v. Kemp, 139 P.3d 1249, 1253 (quoting State v. Joubert, 20 P.3d 1115, 1118–19 (Alaska 2001))..  FN2. Crawford v. Kemp, 139 P.3d 1249, 1253 (quoting State v. Joubert, 20 P.3d 1115, 1118–19 (Alaska 2001)).

FN3. Id. (quoting Joubert, 20 P.3d at 1119)..  FN3. Id. (quoting Joubert, 20 P.3d at 1119).

FN4. See Saucier v. State, 869 P.2d 483, 484 (Alaska App.1994)..  FN4. See Saucier v. State, 869 P.2d 483, 484 (Alaska App.1994).

FN5. Id..  FN5. Id.

FN6. See McCoy v. State, 491 P.2d 127, 130 (Alaska 1971)..  FN6. See McCoy v. State, 491 P.2d 127, 130 (Alaska 1971).

FN7. Id..  FN7. Id.

FN8. State v. Grier, 791 P.2d 627, 632 n.3 (Alaska App.1990)..  FN8. State v. Grier, 791 P.2d 627, 632 n.3 (Alaska App.1990).

FN9. State v. Campbell, 198 P.3d 1170, 1173 (Alaska App.2008)..  FN9. State v. Campbell, 198 P.3d 1170, 1173 (Alaska App.2008).

BOLGER, Judge.