Shearer v. Municipality of Anchorage

0 P I N I O N

COATS, Chief Judge.

Daniel Shearer was charged with one count of driving while intoxicated (DWI).1 Shearer moved to suppress evidence on the grounds that an off-duty police officer's encounter with Shearer in his driveway constituted an invalid investigatory stop. After District Court Judge Sigurd E. Murphy denied the motion, Shearer pled no contest to, and was found guilty of, DWI.2 Shearer appeals, claiming that Judge Murphy erred in denying the motion to suppress ewdence We affirm. 4

On January 20, 1999, just after midnight, Anchorage Police Officer Anthony Provost was driving toward the northbound Glenn Highway exit on Muldoon Road when he observed a black Jeep Cherokee pull out of a strip mall and partially obstruct the oncoming lane of traffic. Provost did not attempt to stop the Jeep because he was already committed to the Glenn Highway. Provost had just finished his shift and was on his way home to Eagle River. He was driving an unmarked Ford Aerostar van.

Provost was driving in the right hand lane on the Glenn Highway when he noticed a vehicle similar to the Jeep he had just seen pass him in the left lane at a "high rate of speed." Provost then observed the Jeep slow down to a speed of 55 miles per hour as it approached two other vehicles. The Jeep pulled over to the right hand lane and passed those vehicles. Provost testified that he watched the Jeep move back and forth between lanes, generally without signaling first (although at times the driver would signal after he entered a new lane). At one point, Provost observed the Jeep move into the right lane with its left signal on.

Provost testified that based on his training; his 20 years of experience as a police officer, and the "speeding, the slowing, the passing, the lane changes, the movement ... from one lane to another and then the signal comes on and then back into the first lane," his impression was that the driver of the Jeep was intoxicated. Provost characterized the Jeep's movement as "gross weaving" over several lanes of the Glenn Highway. After observing the Jeep for several minutes, Provost telephoned Anchorage Police Department (APD) dispatch and advised them that he suspected that the driver of the Jeep was intoxicated. Provost asked APD to run a check on the Jeep's license plates and eventually called for assistance. f

According to Provost, the Jeep took the Highland Road exit and traveled at an excessive rate of speed as it proceeded down the Loop Road toward Eagle River. Provost *338noted in his report that the Jeep moved from the right into the left lane and then back into the right lane traveling faster than the posted speed limit down the Loop Road. As the Jeep (and Provost) approached Kantishna Drive on the Loop Road, dispatch reported to Provost the address to which the vehicle was registered. Provost advised dispatch that the driver appeared to be headed to that address. The Jeep turned left on Kantishna Drive and spun out, turning 270 degrees. The driver corrected the turn and continued to his residence.

Although the driver of the Jeep used his remote control to open the garage door, he parked the Jeep in his driveway. Provost testified that he contacted the driver of the Jeep (Daniel Shearer) as he stepped out of the vehicle. Provost identified himself as a detective with the APD and asked Shearer to step away from the vehicle. Provost conducted a pat down search and obtained Shearer's identification. - Provost testified that he detected the odor of alcoholic beverages on Shearer's person. Provost asked Shearer to perform the balance and alphabet field sobriety tests. The alcohol odor and Shearer's difficulty in performing the field sobriety tests, confirmed Provost's initial impression that Shearer was intoxicated.

Shearer had a different account of his initial contact with Provost in the driveway. Shearer testified that he got out of his car and walked up the driveway to enter his home through the basement garage. He had just entered the garage, when he heard someone call out "hey buddy." Shearer turned around and saw a man in civilian clothes signaling at him. Shearer testified that he thought the man was in trouble and needed help, so he walked out of the garage and approached the man. When Shearer got to the end of the driveway, the man identified himself as a police officer.

Shearer was arrested and transported to the Eagle River police substation for an In-toximeter test. Shearer submitted a breath sample, with a resulting .172 blood aleohol level. Shearer was subsequently charged with DWI, in violation of AMC 9.28.020. Shearer moved to suppress the evidence obtained after his initial contact with Provost. Following an evidentiary hearing, Judge Murphy denied the motion. Shearer subsequently pled no contest to DWI.

The question before us is whether the reasonable suspicion standard for an investigatory stop, adopted by the supreme court in Coleman v. State,3 was satisfied in this case. Under Coleman, an investigatory stop is only permitted in situations where the police officer has "a reasonable suspicion that imminent public danger exists or serious harm to persons or property has recently occurred."4 Shearer admits that he "arguably posed an imminent public danger" when he was driving home. Nevertheless, Shearer claims that because he parked his Jeep in his driveway, exited the vehicle and was headed towards his home when Provost contacted him, Provost had no basis to reasonably suspect that Shearer continued to pose an imminent danger to the motoring public. Judge Murphy disagreed.

In addressing the question of reasonable suspicion, Judge Murphy found that Provost had enough information, based on his observations of Shearer's driving, to reasonably believe that Shearer was driving while intoxicated. Judge Murphy next addressed what happened once Shearer arrived home and found that there was nothing to prevent Shearer from getting back into his vehicle and driving again that night. Thus, Judge Murphy concluded that Shearer continued to pose a potential imminent danger to the driving public, even though he had parked his car in his driveway.

Judge Murphy's findings are consistent with prior decisions of this court and the supreme court that have applied the Coleman standard to investigatory stops. As Shearer concedes, it is well established that the crime of driving while intoxicated poses significant dangers to the public.5 In addi*339tion, a DWI suspect does not have to actually be driving the vehicle in order to pose imminent danger to the public.6 Nevertheless, Shearer claims that Judge Murphy's finding that he posed a continuing danger to the motoring public is not supported by the record because there is no evidence that he would have driven again that night. We rejected similar arguments in Larson v. State7 and Romo v. Anchorage.8

In Larson, a police officer observed the defendant's car stopped in the middle of a dirt road, with the defendant behind the wheel. The officer watched as the defendant pulled up next to two pedestrians, talked to them and then drove north on the wrong side of the road.9 The officer decided to follow the defendant and he subsequently witnessed several instances of suspicious driving by the defendant. Finally, the officer saw the defendant pull over next to two pedestrians. One of them got into the driver's seat and the defendant slid into the passenger seat.10 The new driver proceeded to drive down the road and was stopped by the officer. The officer went immediately to the passenger side, contacted the defendant and arrested him for DWI.11

The primary issue on appeal in Larson was whether the officer made a valid investigatory stop. We agreed with the trial court's finding that the officer had reasonable suspicion (based on his observations of the defendant's driving) that the defendant's driving posed an imminent danger to public safety and that the stop was justified.12 But, we also addressed the defendant's argument that the "requisite element of danger terminated when [the defendant] allowed an apparent stranger to drive the car in his place."13 We upheld the trial judge's finding that the defendant would have resumed driving at a later point and that the officer was not unreasonable in believing that the change in drivers did not eliminate the need to make an investigatory stop.14

Similarly, in this case Judge Murphy found that Provost had reasonable suspicion, based on his observations of Shearer's driving, that Shearer posed an imminent danger to public safety. Judge Murphy recognized that the element of danger did not terminate when Shearer exited his vehicle. Although Shearer claims he was home for the night, Judge Murphy found that there was nothing to prevent Shearer from going inside his house, coming back out, and driving again. We agree that the imminent danger Shearer posed to the driving public did not cease simply because Shearer pulled into his driveway and exited his vehicle. Our conclusion is supported by our decision in Romo.

In Romo, a police officer decided to follow the defendant after recognizing a prostitute in the front seat of his vehicle. The officer saw no indication from defendant's driving that he was intoxicated. The defendant pulled into a parking lot. The officer followed, but did not activate his lights.15 The defendant voluntarily got out of his vehicle and approached the officer, who then noticed the odor of alcohol on the defendant. In response to questioning from the officer, the defendant admitted that he had been drinking. The officer then asked the defendant to perform field sobriety tests, which he failed.16

Based on the above facts, we found that the police officer had "sufficient reasonable suspicion" that the defendant in Romo was driving while intoxicated. We thus conclud*340ed that the officer was justified in performing an investigatory stop in order to administer field sobriety tests.17 We also rejected the defendant's contention that since he stopped his car in his apartment parking lot and exited his car, the officer could not reasonably believe, as required by Coleman, that "imminent public danger" existed any longer from his driving:

In the instant case, Judge Finn made no specific finding as to the likelihood of Romo's driving again or the reasonableness of Officer Plummer's belief of imminent public danger. We are satisfied as a matter of law that an investigatory stop was proper in this case. The fact that Romo was driving just prior to his encounter with Officer Plummer demonstrated Romo's willingness to drive in his current condition. At the time of the encounter, Romo retained possession of his car and it remained immediately accessible for him to drive. Under these circumstances there was a sufficient risk of imminent public danger to warrant an investigatory stop.18

We believe that our reasoning in Romo is also applicable to this case. Provost's observations of several miles of suspicious driving by Shearer provided him with a particularized and objective basis to suspect that Shearer was driving while intoxicated. Judge Murphy found that the fact that Shearer had exited his vehicle and was headed towards his home did not eliminate the risk that Shearer would get back in his vehicle and resume driving. We do not believe that this finding is clearly erroneous. The fact that Shearer drove his Jeep just prior to his encounter with Provost demonstrated his willingness to drive while intoxicated. Further, at the time of Shearer's encounter with Provost, Shearer retained possession of the vehicle and it remained "immediately accessible" for him to drive. We conclude that, under Romo, there was a sufficient risk of imminent public danger in this case to warrant an investigatory stop.19

Shearer attempts to distinguish Romo by arguing that the encounter in Romo did not become an investigatory stop until after the officer asked the defendant to perform field sobriety tests, and that in this case, the encounter was an investigatory stop as soon as Provost made contact with Shearer. We believe that this distinction is immaterial. The ultimate issue in this case-whether Provost could reasonably believe that "imminent public danger" continued to exist after Shearer exited his vehicle-is answered affirmatively by Romo.20 Shearer also argues that the officer in Romo didn't know the defendant lived in the apartment complex next to the parking lot, nor did the defendant start walking towards his house. However, this distinction does not change the fact that, like the defendant in Romo, Shearer still had access to his car at the time of the encounter with Provost. Further, Shearer had just demonstrated his willingness to drive while intoxicated. Thus, Provost could reasonably believe that there was a sufficient risk of imminent public danger to justify an investigatory stop.21

For the reasons discussed above, we conclude that Judge Murphy properly denied Shearer's motion to suppress evidence. The judgment of the district court is AFFIRMED.

. AMC 9.28.020.

. Shearer preserved for appeal, pursuant to Cooksey v. State, 524 P.2d 1251 (Alaska 1974), the question of whether the district court erred in denying his motion to suppress evidence.

. 553 P.2d 40 (Alaska 1976).

. Id. at 46.

. See Ebona v. State, 577 P.2d 698, 701 (Alaska 1978); State v. Moran, 667 P.2d 734, 735 (Alaska App.1983).

. See Jacobson v. State, 551 P.2d 935, 938 (Alaska 1976) ("An intoxicated person seated behind the steering wheel of a motor vehicle [that is not moving] is a threat to the safety and welfare of the public) (citations omitted). See also State, Department of Public Safety v. Conley, 754 P.2d 232, 236 (Alaska 1988); Lathan v. State, 707 P.2d 941, 943 (Alaska App.1985).

. 669 P.2d 1334 (Alaska App.1983).

. 697 P.2d 1065 (Alaska App.1985).

. 669 P.2d at 1335.

. Id. at 1336.

. Id.

. Id.

. Id. at 1337.

. Id.

. 697 P.2d at 1067.

. Id.

. Id. at 1069.

. Id. at 1069-1070.

. Id.

. Id.

. Id.