Opinion
Court of Appeals No. A-9329.
March 7, 2007.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Niesje J. Steinkruger, Judge, Trial Court No. 4FA-04-3911 Cr.
Marcia E. Holland, Assistant Public Defender, Fairbanks, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Samuel R. Horner pleaded no contest to importing alcoholic beverages into a local option community, preserving his right to argue on appeal that the police obtained the evidence against him illegally.
AS 04.11.499.
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
For the reasons explained here, we conclude that we must remand Horner's case to the superior court for findings on the question of whether Horner was subjected to an investigative stop.
Underlying facts
On November 7, 2004, the Alaska State Troopers received an anonymous tip that three unidentified people had booked a flight to the village of Shugnak that afternoon through Ken's Air Service, and that they would be transporting alcoholic beverages to Shugnak on this flight. The troopers passed this tip along to the State Airport Police at the Fairbanks airport.
Based on this tip, Airport Police Officer Nicholas Zito contacted the owner of Ken's Air Service and learned that three people were scheduled to take a flight to Shugnak that afternoon, and that the flight would be leaving between 12:30 and 1:30 p.m. The owner of Ken's Air Service said that he would contact the airport police if the three people actually showed up for the flight.
At approximately 12:45 p.m., the owner of Ken's Air Service called the airport police and notified them that the three people had shown up for the chartered flight to Shugnak. Officer Zito and Officer Craig Persson drove in separate cars to the east ramp of the Fairbanks airport, where Ken's Air Service was located. While the two officers were en route, the dispatcher in the airport tower informed them that three men were walking back and forth between the plane and a truck parked next to the plane, although the dispatcher apparently could not see what these men were carrying to the plane.
Zito and Persson parked their patrol vehicles about 100 to 200 feet away from the plane, and they approached the men on foot. The officers were in uniform, but they did not activate the overhead lights on their patrol cars or make any other visible show of authority.
As the officers approached the men, they observed several unmarked packing boxes sitting next to the plane. Zito walked up to the men and engaged Horner in the following conversation:
Zito: Hey, guys, how's it going? How's it going? Yeah, I just need to talk to you guys real quick. So — have you got ID? Everybody got an ID? Identification? Identification?
Horner: Yeah. We were just waiting for a (indisernible).
Zito: Okay. I need your IDs. These are boxes that you guys are dropping off?
Horner: It is. We're leaving for (indiscernible).
Zito: You guys were just bringing boxes over to the plane. Yeah, you were. I followed you; you were just (indiscernible) with them. . . . Okay, I want you to be straight up with me right now, okay? Right now, I know you just brought those boxes over (indiscernible), we were just watching you guys. So are you going to be straight up with me, or are you going to start out by not being truthful?
Horner: I don't (indiscernible) to what you're doing, so . . .
Zito: We already know where you three are going. Now from here on out, if you want to help yourself, you need to be honest with us. That sound fair enough?
Horner: Okay.
Zito: I'm Nick; this is Craig. We're officers with the State Airport Police out of Fairbanks. What's your name, sir?
Horner: Sam.
Zito: Sam, [do] you know why we're here?
Horner: Uh-huh [affirmative].
Zito: Okay. What's going on today?
Horner: Well, I was just trying to import.
Zito: Trying to import?
Horner: Yeah.
Zito: What are you importing?
Horner: Alcohol.
Zito: Alcohol?
Horner: Yeah.
. . .
Zito: Do you realize it's illegal to import alcohol [into Shugnak]? Not legal?
Horner: Yep.
Zito: How much alcohol are you importing? About three cases' worth?
Horner: More than that. . . . [We have] R R . . . and a little bit of Bacardi.
Zito: Okay. How much [are] you selling it for, out there?
Horner: One [hundred] fifty [dollars] for R R. . . .
Zito: You can actually go — well, I'm going to probably let you end up taking this plane home [ i.e., home to Shugnak] today. Will you give consent for us to search your boxes?
Horner: Yeah, you can (indiscernible).
After Horner gave his consent, Zito searched the boxes that were located next to the plane. In these boxes, Zito found seventy-six 750-ml. bottles of R R whisky, as well as two 750-ml. bottles of Bacardi rum. Zito then contacted the district attorney's office. Following his consultation with the district attorney, Zito arrested Horner.
After Horner was indicted, he asked the superior court to suppress the evidence against him. Horner argued that the airport police unlawfully subjected him to an investigative stop when they had no reasonable suspicion of criminal activity. The State argued that the officers' approach to Horner did not constitute an investigative stop, but rather merely a "citizen contact", and thus the officers had not needed any particular justification for asking Horner questions. The State also argued, in the alternative, that if Horner was subjected to an investigative stop, the police had had sufficient suspicion of criminal activity to justify the stop.
Superior Court Judge Niesje J. Steinkruger ruled (1) that Horner had been subjected to an investigative stop, but (2) that this stop was justified by a reasonable suspicion of criminal activity. Judge Steinkruger therefore denied Horner's motion to suppress. Following the judge's ruling, Horner entered a Cooksey plea, reserving his right to litigate the suppression issue on appeal.
Why we conclude that we must remand Horner's case to the superior court
In his brief to this Court, Horner again argues that he was unlawfully subjected to an investigative stop by police officers who had no reasonable suspicion that he was engaged in criminal activity. The State, for its part, does not attempt to defend Judge Steinkruger's ruling that the police had reasonable suspicion of criminal activity when they approached Horner. Rather, the State argues that no reasonable suspicion was necessary — because the police did not subject Horner to an investigative stop.
Alaska law recognizes the difference between investigative stops (which constitute "seizures" for constitutional purposes) and police-citizen contacts in which the police are merely seeking information without engaging in a show of authority. Whether an encounter between a police officer and a citizen constitutes an "investigative stop" or merely a "contact" will, of course, hinge on the facts of the case. But the ultimate question is a legal one: whether, under the totality of the circumstances, the officer's conduct would lead a reasonable person to believe that they were not free to leave.
Reichel v. State, 101 P.3d 197, 199 (Alaska App. 2004); Howard v. State, 664 P.2d 603, 608 (Alaska App. 1983).
Reichel, 101 P.3d at 199; Martin v. State, 797 P.2d 1209, 1214 (Alaska App. 1990).
Waring v. State, 670 P.2d 357, 364 (Alaska 1983); Ozhuwan v. State, 786 P.2d 918, 920 (Alaska App. 1990); Romo v. Anchorage, 697 P.2d 1065, 1068 (Alaska App. 1985).
In Horner's case, the parties actively litigated the issue of whether Horner was subjected to an investigative stop, and yet Judge Steinkruger addressed this issue in a single conclusory sentence: "This court finds that when Officer Zito made contact with Mr. Horner[,] his actions constituted an investigative stop." Judge Steinkruger did not offer a further explanation of this finding.
Judge Steinkruger may have thought that the issue merited no more attention because, as explained above, she also concluded that the police officers had a reasonable suspicion of criminal activity. However, the State has now conceded that there was no reasonable suspicion to support an investigative stop. Consequently, Horner's case now turns on the issue of whether Zito's approach to Horner constituted an investigative stop or merely a police-citizen contact.
Under Alaska Criminal Rule 12(d), when the decision of a suppression motion hinges on factual issues, "the court shall state its essential findings [of fact] on the record". In Horner's case, this mandate was not followed. Accordingly, we must remand Horner's case to the superior court for more explicit findings as to why, in Judge Steinkruger's view, the encounter between Zito and Horner constituted an investigative stop.
The State urges us to decide this issue based on the testimony already presented at the evidentiary hearing in the superior court. The State implicitly argues that, even if we view that testimony in the light most favorable to Horner, the evidence presented to the superior court does not support a finding that Horner was subjected to an investigative stop — and that we should therefore uphold Judge Steinkruger's decision on this basis, even though she herself concluded that an investigative stop had occurred.
We rejected a similar invitation in Martin v. State, 797 P.2d 1209 (Alaska App. 1990):
There are essentially three types of contact between police and private citizens: (1) a generalized request for information, such as questions asked to bystanders at the scene of a crime; (2) an investigatory stop supported by an articulable suspicion that an individual has committed or is about to commit a crime; and (3) an arrest based upon probable cause, i.e., facts and circumstances which would lead a reasonable person to believe a crime had been committed by the individual being arrested. Howard v. State, 664 P.2d 603, 608 (Alaska App. 1983). In determining which kind of contact occurred under the applicable law, the trial court must first make factual findings concerning what actually occurred. In arguing that this court can uphold the stop and subsequent arrest [on the present record], the state asks us to accept [the police officer's] testimony, at least where the officer was not directly contradicted by [the defendant]. Assuming for the sake of argument that we could uphold [the superior court's] denial of [the] suppression motion in this matter, we conclude that it would be improper for us to do so. Trial courts are much better equipped to determine questions of fact. This court is in no position to resolve questions of credibility from a transcript. It would be improper for us to attempt to resolve this question along the lines which the state suggests. We accordingly remand the suppression issue to the trial court for reconsideration and express findings.
Martin, 797 P.2d at 1214.
Conclusion
We REMAND Horner's case to the superior court for express findings of fact regarding the question of whether the encounter between Zito and Horner constituted an investigative stop. The superior court may make its findings based on the testimony already presented or, in its discretion, the court may accept further testimony.
The superior court shall transmit its findings to this Court on or before Monday, May 7, 2007.
After the superior court issues its supplemental findings, the parties shall have 30 days to file memoranda responding to these findings (if they wish).
After this Court has received the superior court's supplemental findings, as well as any memoranda filed by the parties, we will resume our consideration of Horner's appeal.