Nease v. State

• Decision Date: 28 January 2005
• Docket Number: No. A-8560.,A-8560.
• Citation: 105 P.3d 1145
• Parties: Peter NEASE, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

105 P.3d 1145

Peter NEASE, Appellant, v. STATE of Alaska, Appellee.

No. A-8560.

Court of Appeals of Alaska.

January 28, 2005.

Rehearing Denied February 24, 2005.

Eric Hedland, Assistant Public Defender, Juneau, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.

Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.

Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

OPINION

COATS, Chief Judge.

A Juneau police officer stopped Peter Nease after he observed that the passenger-side brake light on Nease's pickup truck did not light up when he stopped at a traffic light.¹ When the officer contacted Nease, he observed signs that Nease was driving while intoxicated, and ultimately arrested Nease for that offense.² Nease argues that the evidence of his intoxication should have been suppressed because the police officer used his malfunctioning brake light as a pretext to stop him for driving while intoxicated. For the reasons below, we reject this claim and affirm Nease's conviction.

Facts and proceedings

While on patrol early on the morning of February 3, 2002, Juneau Police Officer Matt Torok saw Nease having a drink at Marlintini's bar. Officer Torok recognized Nease and his red pickup truck from an incident several days earlier. During that earlier incident, Officer Torok had observed Nease speeding 75 miles per hour in snowy conditions. But by the time Officer Torok caught up with Nease, Nease was no longer in his truck and denied that he had been driving. Nease "could barely walk" and "reeked of alcohol." Officer Torok suspected that he had been driving while intoxicated. But Officer Torok did not arrest Nease because he could not identify him as the driver. Officer Torok told Nease that "the next time he drove drunk... [he] was going to get him."

After seeing Nease at Marlintini's bar on February 3, Officer Torok continued his patrol. About an hour later, Officer Torok spotted Nease's truck parked at the nearby Valley Restaurant. By the time Officer Torok turned his patrol car around, Nease was pulling his truck out of the restaurant parking lot and onto the Glacier Highway. Officer Torok followed Nease, observing no problems with his driving. But when Nease stopped at a traffic light, Officer Torok saw that one of his brake lights was not working. Officer Torok activated his emergency lights and pulled Nease over. After determining that Nease was intoxicated, Officer Torok arrested him for driving while intoxicated.

Nease filed a motion to suppress the evidence seized as a result of this stop. He argued that the stop was illegal because his alleged broken brake light was a pretext to investigate him for drunk driving. After an evidentiary hearing, District Court Judge Peter B. Froehlich granted Nease's motion and suppressed the evidence. Judge Froehlich found that, but for the incident several days earlier, Officer Torok would not have stopped Nease for the broken brake light.

The State filed a petition for review in superior court, arguing that the district court had applied the wrong standard in assessing the legality of Nease's stop. The State argued that an officer's subjective intent for a traffic stop is irrelevant to the assessment of whether that traffic stop was justified. Superior Court Judge Larry R. Weeks agreed and remanded the case. Judge Weeks, quoting Beauvois v. State,³ directed the district court to determine "whether, under the facts known to the police officer, the stop of the car was objectively justified."⁴

The parties presented no additional evidence on remand. After hearing argument, Judge Froehlich found that Officer Torok did not have reasonable suspicion to stop Nease, and he reaffirmed his order granting Nease's motion to suppress. Judge Froehlich recalled that Officer Torok had testified that Nease's brake light might have been "alternating" or "flickering." He concluded that this testimony had not established a "clear [traffic] infraction," and that the State had thus not "met its burden of showing by a preponderance of the evidence that there was any reason for stopping Mr. Nease other than to check him to see if he was driving under the influence of alcohol."

The State again petitioned for review, arguing that Judge Froehlich had again erred in considering the subjective intent of the officer in assessing the legality of the stop. The State also argued that Judge Froehlich had clearly erred in finding that there was too little evidence of a brake light malfunction to justify the traffic stop. Judge Weeks reversed the district court a second time, and ordered that the matter be set for trial. Nease then entered a Cooksey plea in district court, preserving his right to appeal the denial of his motion to suppress.⁵

Why we conclude that Nease's stop was not an illegal pretext stop

Nease asks us to uphold the district court's factual finding that there was too little evidence of a broken brake light to justify his stop. He also asks us to affirm the district court's ruling that his stop was a pretext to investigate him for drunk driving.

Judge Froehlich concluded that Officer Torok did not have reasonable suspicion to stop Nease for a broken brake light. But normally an officer who directly observes a violation of the traffic code has probable cause for a traffic stop.⁶ Probable cause is therefore the appropriate standard to apply in evaluating the stop in this case.

Whether probable cause for a traffic stop exists is a mixed question of fact and law.⁷ We view the evidence in the light most favorable to the district court's ruling,⁸ overturning its factual findings only if they are clearly erroneous.⁹ Whether those facts justify a finding of probable cause is an issue subject to de novo review.¹⁰

The State argues that the district court clearly erred in finding on remand that the State had not met its burden of showing that Officer Torok had observed a traffic violation. We agree. Officer Torok testified that he was driving directly behind Nease when he saw that the passenger side brake light on Nease's pickup truck "did not light up" when Nease stopped at the light. Nease offered no evidence to contradict this testimony and, immediately after hearing this testimony, Judge Froehlich concluded that the facts of the stop were undisputed. Some two months later, when the case was on remand from the superior court, Judge Froehlich's memory had apparently faded; he found that there had been no "clear [traffic] infraction" — that Nease's brake light may have been "alternating" or "flickering." There is no evidence to support a finding that Nease's brake light "alternated" or "flickered" — Officer Torok's uncontradicted testimony was that the brake light "did not light up." Because 13 AAC 04.035(c) requires rear brake lights to "be illuminated by application of the service or foot brake," this observation gave Officer Torok probable cause to stop Nease for violating the traffic code.

Nease argues that his stop was nevertheless illegal because Officer Torok's real reason for stopping him was not the broken brake light but his suspicions that Nease might be driving while intoxicated. Nease argues that the Alaska Constitution forbids the police from using a traffic infraction as a pretext to stop a motorist for an offense for which the police do not have enough individualized suspicion to justify a stop. Nease acknowledges that under the United States Supreme Court's decision in Whren v. United States,¹¹ Officer Torok's motivations for the stop are irrelevant — under Whren, a traffic stop comports with the Fourth Amendment as long as all the circumstances, viewed objectively, give the police probable cause for the stop.¹² But Nease argues that we should reject Whren as a matter of state law and adopt a subjective test similar to that employed by the Washington Supreme Court in State v. Ladson.¹³

In Ladson, the Washington high court held that a traffic infraction may not be used as a pretext for a search, or even as a pretext "to stop to investigate for a sufficient reason to search even further."¹⁴ To determine if a stop is pretextual under this standard, Washington courts look at the totality of the circumstances, "including both the subjective intent of the officer as well as the objective reasonableness of the officer's behavior."¹⁵

We conclude that it is unnecessary in this case to decide whether to adopt Whren or, conversely, to adopt Ladson as a matter of state law. We reach this conclusion because Nease failed to allege sufficient facts to bring the traffic stop within the doctrine of pretext stops.

As Professor LaFave explains in his work on search and seizure,¹⁶ the fact that a police officer may have an ulterior motive for enforcing the law is irrelevant for Fourth Amendment purposes — even under the doctrine of pretext searches — unless the defendant proves that this ulterior motive prompted the officer to depart from reasonable police practices:

[The officers'] underlying intent or motivation ... does not require suppression [if] the Fourth Amendment activity undertaken [by the officers] is precisely the same

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