Opinion
Court of Appeals No. A-10753.
May 18, 2011.
Appeal from the District Court, Third Judicial District, Glennallen, Daniel Schally, Judge, Trial Court No. 3GL-08-091 Cr.
Kenneth L. Covell, Fairbanks, for the Appellant. Trina Sears, Assistant District Attorney, Palmer, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
Shortly after midnight on June 21, 2008, on the Richardson Highway near Glennallen, a state trooper performed a traffic stop of a vehicle driven by Russell W. Bonar. The trooper stopped Bonar's vehicle because Bonar was pulling a trailer without its taillights on: the trooper believed that Bonar was violating 13 AAC 04.010(a)(1), which requires that vehicles be driven with their lights on beginning 30 minutes after sunset, continuing until 30 minutes before sunrise.
As a result of this traffic stop, the trooper observed evidence that Bonar was intoxicated, and Bonar was ultimately convicted of driving under the influence. In this appeal, Bonar argues that all evidence of his intoxication should be suppressed on the basis that the initial traffic stop was unlawful.
After Bonar filed a motion to suppress this evidence, District Court Judge Daniel Schally held an evidentiary hearing to investigate Bonar's claim. At that hearing, the State presented evidence that Bonar was stopped at approximately 12:23 a.m. on June 21, 2008. With the parties' consent, Judge Schally took judicial notice that the immediately previous sunset at Glennallen, Alaska — that is, the sunset on June 20, 2008 — occurred at 11:37 p.m. Alaska Daylight Time. Thus, Bonar was stopped approximately 46 minutes after sunset, and his failure to have his lights on constituted a violation of 13 AAC 04.010.
The problem in this case arises from the fact that the trooper who stopped Bonar — Trooper Jesse Lee Darby — testified that when he made his traffic stop of Bonar's vehicle, he did not know exactly when the sun had set.
Trooper Darby stated that he made the traffic stop because "it was very late at night, it was dark, [and] it was hard to see stuff at a distance". Darby also said that he, himself, already had his vehicle lights on, as did other vehicles traveling on the highway. On cross-examination, Darby conceded that it was not "pitch-black", but he asserted that the lighting conditions were "darker than normal daylight hours", and that he could not "remember any sunlight whatsoever".
Bonar took the stand at the evidentiary hearing and contradicted Darby's testimony. He testified that it was light outside at the time of the traffic stop, and that visibility was unlimited.
Based on the testimony presented at the hearing, Judge Schally found that Trooper Darby had a reasonable belief, based on his observations of the lighting conditions at the time of the stop ( i.e., the degree of darkness), that it was sufficiently after sunset for illuminated taillights to be required by law.
Following Judge Schally's decision, Bonar pleaded no contest to driving under the influence, preserving his right to challenge Judge Schally's ruling on the suppression motion.
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Bonar argues that Trooper Darby lacked probable cause to believe that it was 30 minutes or more after sunset — because (according to Bonar) it was "broad daylight", and because Darby admitted that he did not know exactly what time the sun had set. Bonar points out that Judge Schally never expressly found that it was dark outside at the time of the stop, and Bonar argues that Darby's testimony that it was dark outside was not credible.
Probable cause exists if the information known to the officer, viewed objectively, would "warrant a person of reasonable caution [in believing] that an offense has been or is being committed."
State v. Campbell, 198 P.3d 1170, 1173 (Alaska App. 2008). See Beauvois v. State, 837 P.2d 1118, 1121 n. 1 (Alaska App. 1992); State v. Kendall, 794 P.2d 114, 117 (Alaska App. 1990).
Bonar argues that Trooper Darby's belief that it was at least one half hour after sunset was not objectively reasonable — that "there [was] simply no way to tell whether it [was] 16 minutes past sunset or 46 minutes past sunset" at the time and place of the stop (June 21, 2008 in Glennallen).
Bonar argues that his case is analogous to the facts of State v. Campbell, 198 P.3d 1170 (Alaska App. 2008). The defendant in Campbell was also the subject of a traffic stop for driving without his vehicle lights illuminated. This Court held that the police officer who initiated the stop did not have probable cause to believe that it was at least 30 minutes after sunset.
The officer in Campbell initiated the traffic stop on June 4th after his dispatcher mistakenly told him that the sun had set at 10:26 p.m. — when, in fact, the sunset did not occur until one hour later (11:25 p.m.) — about the same time as the traffic stop. The trial court judge concluded that, even if the officer believed his dispatcher's report that the sun had set one hour previously, that belief was not reasonable. The officer himself testified that the evening was "very nice", and that the streetlights had not yet been turned on. Moreover, this Court took judicial notice that, on the night of the stop, it had been almost four weeks since the sun had set as early as 10:26 p.m. in Anchorage.
[ Campbell, 198 P.2d at 1173.
Ibid.
We conclude that Bonar's case is distinguishable from Campbell. Trooper Darby stopped Bonar on an overcast night about 45 minutes after the sunset. Darby testified that he initiated the stop because "it was very late at night", and because it was sufficiently dark that "it was hard to see stuff at a distance". Darby testified that he had already turned on his vehicle lights at the time of the stop, and that the other vehicles he passed on the highway likewise had their lights on.
As we noted earlier, Bonar testified that there was still sufficient light for good visibility, and Bonar claims that his testimony is corroborated by the trooper's video recording of the stop — which does, indeed, show reasonably good visibility on the highway. But Trooper Darby testified that the video of the stop did not accurately depict the lighting conditions at the time of the stop — that it was actually darker outside than what appeared on the video.
When we review the decision of a trial court on a motion to suppress evidence, we must view the evidence in the light most favorable to the trial court's ruling. Judge Schally was entitled to disregard Bonar's testimony if he found that Darby's testimony was more credible. Moreover, the question before Judge Schally was not whether Darby knew to a certainty that it was at least 30 minutes after sunset; rather, the question w as whether Darby had probable cause to believe this. And probable cause "requires only a fair probability or substantial chance of criminal activity, not an actual showing that such activity occurred."
Ibid.
State v. Joubert, 20 P.3d 1115, 1119 (Alaska 2001) (quoting Van Sandt v. Brown, 944 P.2d 449, 452 (Alaska 1997)).
Here, Judge Schally found that Darby's observations of the degree of darkness provided Darby with a good-faith and objective basis for concluding that it was at least 30 minutes after sunset. And, although this is not dispositive, it turned out that Darby was right: it was actually 45 minutes after sunset.
In a footnote to his opening brief, Bonar argues that a vehicle like his — that is, a vehicle equipped with daytime running lights that are illuminated all the time — is exempt from the taillight requirement if visibility is greater than 1000 feet. This claim is waived for inadequate briefing.
In any event, it appears that Bonar has misread the pertinent regulations. Bonar relies on 13 AAC 04.025(d), which states that if a vehicle is equipped with illuminated daytime running lights that meet federal standards, the vehicle is "exempt from illuminating taillights when daytime running lamps are permitted to be used under this chapter." But chapter 4 of 13 AAC does not provide that daytime running lights are a complete substitute for normal vehicle lights. Rather, the chapter provides that daytime running lights are permitted in lieu of normal headlights on roadways where posted signs require the daytime use of headlights — unless it is between one half hour after sunset and one half hour before sunrise, or unless persons or vehicles on the highway are not clearly discernible at a distance of 1000 feet. In those two instances, daytime running lights alone are insufficient, and normal headlights and taillights are required.
13 AAC 04.010(a)(1)-(2), (c), and (d).
For these reasons, the judgement of the district court is AFFIRMED.