Dorris v. State
| Decision Date | 30 December 1982 |
| Docket Number | No. 5947,5947 |
| Parties | Terry R. DORRIS, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Court of Appeals |
Before BRYNER, C.J., SINGLETON, J., and CARLSON, Superior Court Judge. *
On November 21, 1979, a grand jury in Fairbanks returned a fifty-six count indictment against Terry Dorris. Twenty-eight counts charged separate residential burglaries, the remaining counts charged related crimes. Dorris pled no contest to nine of the burglary counts and to a separate count charging malicious destruction of property. In return, the state dismissed the remaining counts and stipulated that Dorris could appeal an order denying his motion to suppress certain evidence. The state concedes that if Dorris prevails on appeal, all charges will have to be dismissed. We therefore have jurisdiction to consider this appeal. Oveson v. Anchorage, 574 P.2d 801 (Alaska 1978); Cooksey v. State, 524 P.2d 1251 (Alaska 1974).
Dorris makes three arguments on appeal: (1) that Dorris was stopped by state troopers without reasonable cause; (2) that affidavits for search warrants contained material misrepresentations; and (3) that the court improperly ordered restitution and impermissibly increased Dorris' sentence by imposing a fine after the sentence had become final. We affirm the conviction.
On November 6, 1979, Terry Dorris was driving along a highway near Fairbanks, in his black, 1977, Chevrolet pickup truck, accompanied by his black Labrador retriever. He pulled to the side of the road and exited his vehicle. Alaska State Troopers Samuel Barnard and James McCann were following Dorris in an unmarked police vehicle. They stopped directly behind him, activated their flashing lights, exited their vehicles, and with weapons drawn faced Dorris as he exited his vehicle.
The following facts explain the troopers reasons for stopping Dorris. Between October 30, and November 6, 1979, six residential burglaries which had a number of common characteristics were reported to the state troopers in Fairbanks. Each burglary occurred in a small area northwest of the city bordering the campus of the University of Alaska. Each of the burglaries occurred on work days during daylight hours. At each residence the burglar took guns and, most significantly, used a truck with wide tires arranged in a distinctive pattern. Three tires had an identical tread design, but the left rear tire had a dissimilar tread design. Tire tracks with this distinctive pattern were found at each of the burgled residences. On one occasion, the burglar repeatedly discharged a firearm inside a burgled residence without apparent explanation.
Inspector Steven Heckman was dispatched to the area in question to investigate the sixth burglary on November 5, 1979. While at the scene, Heckman learned that Denise Johnstone, a neighbor, might have seen the burglar's vehicle. He went to her residence and interviewed her. Ms. Johnstone told Heckman that she observed a short-bed pickup truck suspiciously enter her driveway, turn around, and leave somewhere between 10:00 a.m. and 2:00 p.m. on November 5, 1979. She described the vehicle as a black Ford or GMC pickup truck with little chrome, no noticeable damage, and no camper shell. She was not sure whether it was four-wheel drive though she thought it was set high off the ground.
Ms. Johnstone did not notice the truck's tires but when Heckman went to the place in Johnstone's driveway where she said the truck had turned around, he found tire tracks in the snow exhibiting the distinctive pattern found at the site of each of the six burglaries.
Johnstone was not able to see clearly into the cab of the truck. She did notice a "real large" dog, weighing about 100 pounds, which she described as dark brown with short hair, short pointed ears, and a square muzzle, in the cab on the passenger side. She did not get a good look at the driver but, based on his size, believed he was a man with hair that bushed out from under a stocking cap. She did not know his race.
Heckman repeated Johnstone's comments at a morning briefing at the Fairbanks detachment of the state troopers on November 6, 1979. Those present were notified of Johnstone's report, including her description of the suspect, the vehicle, and the dog. They were also advised of the burglar's method of operation, the distinctive pattern of tire treads, the common theft of firearms, and the burglar's use of firearms to "shoot up" one of the burgled houses. The troopers determined to place the area in which the burglaries occurred under surveillance. Individual troopers were assigned to designated surveillance areas in northwest Fairbanks with instructions to be on the lookout for the suspect vehicle.
After attending a class at the University of Alaska on November 6, 1979, Troopers Barnard and McCann drove a short distance to a golf course parking lot at the intersection of Yankovitch and Ballaine Roads, within the area under surveillance, where they took up a position. Shortly before noon, after waiting approximately an hour and a half, they spotted a dark-colored pickup truck traveling west on Farmer's Loop Road; there was a large dog in the back of the truck. This was the first vehicle they had seen that matched Johnstone's description. While the troopers did not know Dorris or his vehicle at that time, Dorris was driving the pickup truck. The troopers followed the truck through the University area and on to the Old Nenana Highway. Approximately one mile beyond Ship Creek Road, the troopers lost sight of Dorris' vehicle. As they passed a private residence, later identified as the Palczer residence, they noticed the subject vehicle parked in the driveway. The driver was gone but the large dog remained in the back of the truck. Barnard and McCann drove 200 yards up the road and parked along the side of the road so that they could survey the driveway. They waited for five to ten minutes and then drove past the driveway, observing that the truck remained parked in the driveway. Barnard and McCann waited an additional five minutes and then drove past the driveway again and saw that the truck was gone. Since the truck had not traveled toward them, they proceeded in the opposite direction along the Old Nenana Highway and spotted it traveling west.
When Barnard and McCann first noticed Dorris parked in the driveway of the Palczer residence, they thought he might be a resident home for lunch or, since they spotted a for sale sign at the foot of the driveway, that he might be a real estate agent checking the premises. During his observations, Barnard concluded that the driver did not live there. He relied on the following factors in arriving at this conclusion. First, he thought fifteen minutes was an unusually short time for lunch, but too long for a brief stop to retrieve a forgotten article. Second, he noticed that the dog remained in the truck while it was parked. He reasoned that the owner would have let the dog out if he lived there. Finally, he concluded that the truck was not parked in front of the garage where one would expect an owner or visitor to park, but some twenty feet away from the house. By this time Barnard felt he had located the burglar and, by implication, that the Palczer house was being burglarized.
Barnard therefore radioed Investigator Heckman to go to the Palczer residence and determine whether it had been burglarized. Heckman did so and confirmed that the vehicle observed in the Palczer driveway left tracks matching those found at the burglarized residences. Heckman's radio malfunctioned, however, preventing him from communicating this information to Barnard. Heckman initially found no evidence of forced entry and did not confirm that a burglary in fact took place until he had consulted with other troopers and entered the residence through an unlocked door, approximately forty minutes later. By the time Heckman confirmed that a burglary had occurred, Dorris had already been arrested.
In the meantime, Barnard and McCann followed Dorris as he drove along the Old Nenana and Parks Highways. Eventually, Dorris drove around a corner and then abruptly pulled to the side of the road. Barnard testified that Dorris' actions created a quandry. He believed Dorris had discovered that McCann and Barnard were following him. Barnard therefore had three options:
I can drive on by the vehicle, hoping that he doesn't know I'm a policeman ... stop behind the vehicle ... it would be a pretense to see if he had problems with his vehicle .... Or I could stop him and approach him with the attitude that I thought that he was responsible for some crime, which I thought he did.
McCann and Barnard pulled over behind Dorris, engaging in the conduct which Dorris challenges in this appeal. Barnard examined the truck tires and observed that they were very, very similar to the diagrams of the suspect vehicle he had seen that morning. Barnard then walked to the front of the driver's truck and peered through the window. He observed various items of personal property inside the cab. At the troopers' request, Dorris showed them his driver's license, and was advised of his Miranda rights. In response to questioning about his activities that morning, Dorris said that he had been at home and was going to cut firewood. He omitted any mention of a stop at the Palczer home. When Barnard asked Dorris why he was parked in the driveway of the residence on the Old Nenana Highway, Dorris requested to speak to an attorney. Barnard then formally told Dorris he was under arrest for burglary.
Dorris had voluntarily stopped and exited his vehicle. The act of the troopers in drawing and pointing their weapons at him as he...
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