Brown v. State, 7358

• Decision Date: 15 June 1984
• Docket Number: No. 7358,7358
• Parties: Charles L. BROWN, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 874

684 P.2d 874

Charles L. BROWN, Appellant, v. STATE of Alaska, Appellee.

No. 7358.

Court of Appeals of Alaska.

June 15, 1984.

Susan Orlansky, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant.

Richard W. Maki, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

SINGLETON, Judge.

Charles Brown entered a no contest plea to an indictment charging him with theft by receiving in the second degree, a class C felony. AS 11.46.130(a)(1); AS 11.46.190(a). He appeals under reservation of right in conformity with Oveson v. Anchorage, 574 P.2d 801 (Alaska 1978), and Cooksey v. State, 524 P.2d 1251 (Alaska 1974). We therefore have jurisdiction over this appeal.

Brown contends that the trial court erred in denying his motion to suppress evidence seized from his person and from his hotel room. We affirm.

STATEMENT OF FACTS

In March of 1982, Officer Stevens of the Anchorage Police Department went to the Inlet Inn to investigate a "voucher fraud." Apparently, people were using vouchers with false names to pay for rooms. As Stevens was talking with hotel administrators, he saw Charles Brown carrying a portable television set. Stevens said he thought it was "kind of interesting" that a person would have a portable television in a hotel that already had a television in each room.

Stevens asked Brown if the television belonged to him, and Brown replied that it was not his. Stevens asked Brown where it came from, and Brown replied that a man he did not know gave it to him. Stevens asked for a description of this person. Brown said he had gotten the television from a white man in room 122. The officer then asked Brown for identification, and Brown said he did not have any. Stevens proceeded to frisk Brown "because of the answers of the questions that he gave me didn't relieve ... [me]--of fear."

Brown originally stated that his name was James Black. When the officer conducted the pat-down search he discovered a wallet. He asked Brown to pull out the wallet and show some identification. As Brown was flipping through it, Stevens noticed a social security card with the name "Charles Brown" on it. At first Brown claimed that Charles Brown was his brother's name, but when the officer pointed out that it is unusual for brothers to have different last names, the defendant admitted that he was Charles Brown.

Stevens asked for picture identification, which Brown said he did not have. Stevens then asked Brown how he had paid for his room. Stevens had noticed the names "James Black" and "Charles Brown" on his list of voucher frauds. Brown replied that he had bought his voucher for $25 for seven nights from a man possibly named "Mike" staying in room 122.

Stevens then asked Brown where he was staying and Brown replied that he was staying in room 8, but that his clothes were in room 122. Stevens said, "Well, let's go to room 8." Stevens testified that he made the suggestion because he wanted to see if Brown had a key to room 8. Stevens also testified that he wanted to verify Brown's identity, and to obtain further information about the television. Brown walked up to the door of room 8 with Stevens right behind him. Brown opened the door and Stevens followed him into the room.

Stevens noticed computer equipment stacked on the floor. He testified that he thought it was odd for a person with expensive appearing computer equipment to be using a cheap voucher to stay in a hotel. The fact that Officer Stevens had come across some computer equipment was relayed to Anchorage Police Officer Kasper, who was investigating a nearby burglary involving a theft of computer equipment. Stevens and Brown were standing in the hallway outside room 8 when Officer Kasper arrived. Kasper asked where the equipment was. Brown produced a key, opened the door to room 8 and motioned for him to come in. Officer Kasper had the impression that Brown was just "a cooperative citizen that had found the computer equipment." Stevens informed Kasper privately of what had just occurred. Both officers then reentered the room, advised Brown of his rights, and asked if they could conduct a more thorough search. Brown was told that he had a right not to have the room searched. Brown signed a waiver form.

The computer equipment and television had recently been stolen. After he was indicted for theft by receiving in the second degree, Brown moved to suppress the evidence of the television and the computer equipment on the grounds that he was arrested without probable cause and that his room was illegally searched. Judge Moody denied the motion.

THE SEIZURE OF BROWN

In Howard v. State, 664 P.2d 603, 608 (Alaska App.1983), we said:

There are essentially three types of contact between the police and private citizens which have received attention in the reported cases: (1) A generalized request for information, for example, questions put to bystanders during an on-the-scene investigation of a crime. (2) An investigatory stop, supported by articulable suspicion that a person has committed or is about to commit a crime. (3) Finally, an arrest, based upon facts and circumstances which would lead a prudent person to believe that a crime had been committed and that the person arrested had committed it.

....

An inquiry of someone at the scene is not necessarily a fourth amendment seizure. An investigatory stop and an arrest are fourth amendment seizures. [Citations omitted.]

Brown argues that he was seized when Officer Stevens approached him and began asking questions. Alternatively, Brown contends that he was seized when he was asked for identification. The state argues that Stevens' investigation did not constitute an investigatory stop until he frisked Brown for weapons.

A person is seized when a reasonable person in his position would not feel free to leave. Florida v. Royer, 460 U.S. 491, ----, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229, 239 (1983); Waring v. State, 670 P.2d 357, 364 (Alaska 1983). The question of when a seizure occurs is factual; a trial court's finding of fact should be overturned only if clearly erroneous. 670 P.2d at 364 n. 15. In this case Judge Moody did not specifically determine the point at which Brown was seized or whether he was seized at all prior to his arrest. Judge Moody did decide, however, that the questions initially put to Brown by Stevens and the request for identification did not constitute a seizure.

In Waring, the court expressly declined to decide whether a request for identification standing alone is a seizure. Id. at 364 n. 16. The court noted, however, that retention of a person's identification beyond the time necessary for a cursory check could be construed as evidence that a seizure had taken place. Id. at 364 n. 17. In Waring, the supreme court specifically rejected the contention that any contact between a uniformed police officer and a suspect was so apparently coercive that a seizure should be found. Rather the court concluded that the question is whether the officer's behavior was conduct which "a reasonable person 'would view as threatening or offensive even if coming from another private citizen.' " Id. at 364 (citing 3 W. LaFave, Search & Seizure § 9.2, at 53-54 (1978)). Officer Stevens asked Brown for identification in the course of general questioning about the television. Stevens had a right to be where he was and to ask questions about what was going on around him. G.R. v. State, 638 P.2d 191, 195 (Alaska App.1981), rev'd on other grounds, Waring v. State, 670 P.2d 357 (Alaska 1983). Under the totality of the circumstances, Judge Moody did not err in concluding that Brown was free to leave during the initial questioning. Compare Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357, 361 (1979) ("When the officers detained appellant for the purpose of requiring him to identify himself, they performed a seizure of his person subject to the requirements of the Fourth Amendment.")

The state argues that when Officer Stevens began the pat-down search of Brown, Brown was seized for fourth amendment purposes. We agree. At that point, on-the-scene questioning had evolved into a full-blown investigatory stop. See Howard v. State, 664 P.2d at 608. Certainly, a search of Brown's person was a restraint that he was not free to ignore or to walk away from. It was also conduct which would be threatening if performed by a private citizen.

Brown argues that Stevens never had an articulable suspicion that Brown had committed or was about to commit a crime. Brown also contends that even if Stevens did have an articulable suspicion that a crime had been committed, it was not a crime involving imminent public danger or serious harm to persons or property. See Coleman v. State, 553 P.2d 40, 46 (Alaska 1976). We reject Brown's arguments based upon our reading of Coleman.

There are two steps to the Coleman test. First, the officer's suspicion must be reasonable:

[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.... And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search "warrant a man of reasonable caution in the belief" that the action taken was appropriate?

553 P.2d at 45 (quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968)). Second, the officer's reasonable suspicion must involve an imminent public danger or the recent infliction of serious harm to persons or property. Id. at 46. The state does not argue, nor does Stevens' testimony imply that Stevens perceived Brown as an imminent danger to the public. The state does argue, however, that Stevens reasonably suspected that Brown was either the...