dissenting.
Under Alaska law, a police officer who has reason to believe that a person is driving while intoxicated can stop the motorist to investigate. In Ebona v. State1, the supreme court held that this investigative stop is justified because a person who is driving while intoxicated presents an "imminent public danger". The question in this case is whether an investigative stop remains justified even after the motorist parks the car, turns off the engine, and walks away, with no indication that the motorist intends to resume driving. I conclude that, under such *341cireumstances, there is no imminent public danger, and so an investigative stop is not allowed.
Underlying facts
Police Officer Anthony Provost saw Daniel Shearer driving erratically just after midnight on January 20, 1999. Shearer concedes that his erratic driving gave Provost a reasonable basis to suspect that Shearer was driving while intoxicated. Because of this reasonable suspicion, Provost would have been justified in stopping Shearer's vehicle to investigate this potential crime.2 But the traffic stop would have been difficult because Provost was off-duty: he was dressed in civilian clothes, and he was driving a private vehicle without emergency lights or a siren. So instead of performing a traffic stop, Provost followed Shearer. He called for a backup officer, and he also asked police dispatch to run a check on Shearer's vehicle registration.
The dispatcher told Provost that Shearer lived on Kantishna Drive in Eagle River. With Provost behind him, Shearer drove to the Kantishna Drive address, turned into the driveway, and parked his car. Provost parked his own vehicle on the street. As Provost watched, Shearer used a remote control to open his garage door. He then walked toward the house, preparing to enter through the garage.
At this point, Provost called out to Shearer and asked him to come back down the driveway. Shearer did not know that Provost was a police officer; he assumed that Provost was a motorist who was either lost or was having car trouble. But as soon as Shearer walked up to Provost, Provost displayed his badge. He directed Shearer to perform field sobriety tests. Based on Shearer's performance, Provost arrested him for driving while intoxicated.
The Municipality of Anchorage concedes that, before Shearer performed the field sobriety tests, Provost had only a reasonable suspicion that Shearer was under the influence rather than probable cause to make an arrest. The Municipality further concedes that Provost coerced Shearer to perform the field sobriety tests through a display of authority. For his part, Shearer concedes that, by the end of the field sobriety tests, Provost had obtained enough information about Shearer's level of intoxication to justify an arrest. That is, by the end of the field sobriety tests, Provost had probable cause to believe that Shearer was under the influence. The problem is the manner in which Provost obtained this information.
Shearer voluntarily walked down the driveway to speak to Provost. Had Provost merely engaged in conversation with Shearer, the officer conceivably could have gleaned sufficient information from Shearer's speech, demeanor, and balance to establish probable cause to make an arrest. But Provost immediately displayed his badge and directed Shearer to perform field sobriety tests. These actions constituted an investigative stop-a seizure for Fourth Amendment purposes. The question is whether this seizure was legal.
The requirement of "imminent public dang e 7, 79
In Coleman v. State3, the Alaska Supreme Court was asked to decide whether the Alaska Constitution permits a police officer to conduct an investigative stop based on reasonable suspicion (i.e., less than probable cause). The court ruled that investigative stops based on reasonable suspicion are permitted in two instances: when the officer has reason to believe that "imminent public danger exists", or when the officer has reason to believe that "serious harm to persons or property has recently occurred".4
Shearer's case points out a erucial distinction between these two categories. If an investigative stop is justified because there is reason to believe that "serious harm ... has recently occurred", it does not matter whether the crime is continuing or has been completed. In either case, Coleman authorizes the investigative stop. But if the investiga*342tive stop is justified because there is reason to believe that "imminent public danger exists", then the government must establish reason to believe that the crime is ongoing or that the crime has set events in motion that will endanger the public-unless the crime is revealed or the events interrupted.
Neither the supreme court nor this court has ever decided whether the crime of driving while intoxicated falls within Coleman's second category of "serious harm to persons or property".5 But in Ebona v. State6, the supreme court held that a motorist who drives while intoxicated constitutes an "imminent public danger". Thus, when a police officer sees a person driving a motor vehicle and the officer has reason to believe that the driver is intoxicated, the officer is authorized to conduct a traffic stop and investigate.7
But Shearer's case is different: Shearer was no longer driving a motor vehicle when Provost performed the investigative stop. Shearer had reached his residence, he had parked his car and turned off the engine, and he was entering his house. Shearer contends that Provost violated Coleman when he performed the investigative stop at the foot of Shearer's driveway because, by the time Provost conducted the stop, Shearer no longer posed an imminent danger to the public safety or welfare. Shearer points out that his act of driving was over, and he argues that there was no reason to believe that he would resume driving in the near future.
The Municipality of Anchorage offers two answers to Shearer's argument.
First, the Municipality asserts that driving while intoxicated falls within Coleman's see-ond category-that this offense constitutes "serious harm to persons or property". If so, then Provost would have been justified in performing an investigative stop even though Shearer's offense was over. '
But the Municipality did not raise this argument in the trial court, and the district court did not decide this issue. Rather, the district court ruled that the investigative stop was justified under Coleman's first category (imminent public danger). Moreover, the Municipality did not raise this issue in its brief to this court. Instead, the Municipality raised this issue for the first time during oral argument. Given these circumstances, the Municipality has waived its contention that DWI falls within Coleman's second category.8
The Municipality's remaining contention is that, even though Shearer had stopped driving, he continued to pose a danger to the public. The district court upheld the investigative stop on this basis. The court ruled that, even though Shearer had parked his car and was on his way into the house, it was at least possible that Shearer might shortly return to his car and begin driving again.
Why I conclude that the Municipality failed to establish a reasonable suspicion that Shearer posed an imminent public danger
It is the government's burden to justify any warrantless seizure. An investigative stop must be based on reasonable suspi-clon-"specific and articulable facts which, taken together with [the] rationale inferences from those facts, reasonably warrant the intrusion."9 Because Coleman's first prong requires proof of imminent public danger, we must ask the following question: When Officer Provost performed the investigative stop at the foot of Shearer's driveway, was he aware of specific and articulable facts indicating that Shearer posed an imminent danger to the public? Or, to rephrase this question with reference to the particular facts of this case: Did Provost have specific and articula-ble reasons for believing that Shearer would leave his house and resume driving before he regained sobriety?
*343The majority believes that the answer is supplied by Romo v. Anchorage.10 In Romo, a police officer followed the defendant's pickup truck because he recognized the woman passenger as a known prostitute. Romo pulled into the parking lot of his apartment building and stopped his truck. The officer stopped his patrol car some forty to fifty feet away, but he did not attempt to make contact with Romo.11 After a few moments, Romo got out of his truck and walked back to the patrol car to engage in conversation with the officer. During that conversation, the officer smelled alcoholic beverages on Romo's breath, and Romo admitted that he had been drinking. When Romo failed various field sobriety tests, the officer arrested him for driving while intoxicated.12
One of Romo's arguments on appeal was that, even after the officer observed signs of his intoxication, the officer had no authority to ask Romo to perform the field sobriety tests or to take any other action amounting to an investigative stop. Romo contended that, because he stopped his truck in the parking lot of his apartment building, and because he got out of his car to talk to the officer, there was no longer an "imminent public danger" as required by Coleman. This court rejected Romo's argument:
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 [intoxicated] condition. At the time of the encounter, Romo retained possession of his car and it remained immediately accessible for him to drive. Under these cireumstances{,] there was a sufficient risk of imminent public danger to warrant an investigative stop.
Romo, 697 P.2d at 1069-1070.
My colleagues interpret Romo to mean that, even after a suspected intoxicated driver stops driving, a police officer will always be authorized to conduct an investigative stop because there is always some conceivable possibility that the motorist will resume driving. This is stretching Romo too far.
In Romo, the officer could reasonably conclude that Romo had merely interrupted his driving in order to talk with the officer. Romo stopped his vehicle and walked over to the officer's patrol car, but he gave no indication that he had reached his final destination or that he intended to stop driving. As this court stressed, "Romo retained possession of his car and it remained immediately accessible for him to drive."
The majority concedes that Shearer's case is different. Shearer parked his car in his driveway, he turned off the engine, and he was proceeding into his house when Officer Provost called him back. The hour was midnight-a time when people ordinarily return home for the night. Nevertheless, the majority concludes that Officer Provost had a specific, articulable basis for believing that Shearer continued to pose an imminent danger to the public safety.
The district judge who upheld the investigative stop reasoned that Shearer might conceivably have been going home just to retrieve more alcoholic beverages and then resume driving. One can also imagine other scenarios in which Shearer might resume driving even though he initially intended to remain at home-for example, if his children demanded that he take them out for a midnight snack, or if Shearer's wife threw him out of the house, forcing him to seek new lodgings.
These (and other) speculative possibilities can not be ruled out. But Coleman and Terry v. Ohio require more than speculative possibilities. To justify the investigative seizure in this case, the government must point to specific and articulable facts that would lead a reasonable person to believe that Shearer intended to return to his car and resume driving while he was still intoxicated. In the absence of an affirmative reason to suspect that Shearer would resume driving, the investigative stop is illegal.
*344Romo does not alter this rule of law. Rather, the result in Romo rests on application of this rule to the particular facts of Romo's case. This becomes clearer if we consider a slight variation of the facts in Shearer's case.
Suppose that Officer Provost, unsure of how to proceed, had simply watched while Shearer entered his garage, walked into his house, and closed the garage door behind him. - After waiting several minutes for Shearer to re-emerge, Officer Provost contacts a police supervisor and asks for advice. The supervisor tells Provost to knock on Shearer's front door and see if Shearer will come outside to talk. By now, twenty minutes have gone by, and Shearer's house is dark. Provost knocks for several minutes. At length, Shearer answers the door. He is dressed in pajamas, he is barefoot, and he has a toothbrush in his hand. He is obviously preparing for bed.
Under these hypothetical facts, there is no specific, articulable reason to believe that Shearer would resume driving. Thus, even if there was reason to believe that Shearer was intoxicated, there would be no reason to believe that he presented an "imminent public danger", and so a Coleman investigatory stop would not be permitted.
Concededly, the actual facts of Shearer's case do not so clearly prove Shearer's lack of intent to resume driving. But it is not Shearer's burden to negate all speculative possibility that he might decide to leave his house and begin driving again. Rather, it is the Municipality's burden to come forward with specific, articulable facts that affirmatively indicate that Shearer might resume driving. There are no such facts in this case.
Accordingly, Provost's investigative stop of Shearer was unlawful, and the evidence obtained during that investigative stop should have been suppressed. I would reverse Shearer's conviction.
. 577 P.2d 698, 700-701 (Alaska 1978).
. See Ebona, 577 P.2d at 700-701.
. 553 P.2d 40 (Alaska 1976).
. Id. at 46.
. See Romo v. Anchorage, 697 P.2d 1065, 1070 n. 2 (Alaska App.1985).
. 577 P.2d at 700-701.
. Ebona, 577 P.2d at 701.
. Petersen v. Mutual Life Ins. Co., 803 P.2d 406, 411 n. 8 (Alaska 1990) (issues not briefed are waived).
. Coleman, 553 P.2d at 45 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968)).
. 697 P.2d 1065 (Alaska App.1985).
. Seeid.
. Seeid.