Perozzo v. State

• Citation: 493 P.3d 233
• Decision Date: 09 July 2021
• Docket Number: Court of Appeals No. A-12967
• Court: Court of Appeals of Alaska
• Parties: James Henry PEROZZO, Appellant, v. STATE of Alaska, Appellee.

493 P.3d 233

James Henry PEROZZO, Appellant,

v.STATE of Alaska, Appellee.

Court of Appeals No. A-12967

Court of Appeals of Alaska.

July 9, 2021

Laurence Blakely, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.

Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.

OPINION

Judge WOLLENBERG.

This appeal presents the question of whether a law enforcement officer conducting a routine traffic stop may request identification from a passenger in the vehicle and then use that identification to run a warrants check on the passenger, absent any case-specific justification for doing so. Because we conclude that this conduct violates the Alaska Constitution, we reverse the trial court's denial of James Henry Perozzo's motion to suppress.

Underlying facts and proceedings

At approximately 5:40 p.m. on February 4, 2016, Anchorage Police Officer Michael Farr initiated a traffic stop at 15th Avenue near Sitka Street. The vehicle had an obscured license plate — i.e. , the rear license plate was not illuminated and it was dirty.¹ Perozzo was a passenger in the vehicle.

Officer Farr introduced himself and explained the reason for the stop. He then asked the driver for his driver's license, registration, and proof of insurance.

Farr also asked Perozzo for his identification: "Sir, do you mind if I see your I.D. real quick?" Perozzo asked why, stating that he was not doing anything wrong. Farr replied, "I'm just asking to see your I.D., that's all." At that point, Perozzo turned over his Alaska identification card.

Farr returned to his patrol car and ran both the driver's and Perozzo's names through the Alaska Public Safety Information Network (APSIN) database. Farr discovered that there was an outstanding search warrant for Perozzo's DNA. Farr called the detective who had issued the "locate" for Perozzo regarding the warrant, and the detective instructed Farr to detain Perozzo and take him to the police station, so that the detective could execute the warrant by obtaining buccal swabs of Perozzo's DNA.

Farr called for backup, and another officer, Anchorage Police Sergeant Shaun Henry, arrived on the scene. Both officers approached the vehicle in which Perozzo was sitting, and Farr ordered Perozzo to exit the vehicle.

According to Farr's later testimony, Perozzo then reached toward his waistband. Sergeant Henry took control of Perozzo, escorted him to the back of the car, and handcuffed him.

A pat-down search of Perozzo revealed an empty holster on Perozzo's right side, and the police found a handgun in between the driver and passenger seats of the vehicle. Perozzo acknowledged that the firearm was his, and he told Farr that he had removed the gun when he first got in the car because it was uncomfortable to wear along with the seatbelt. The police subsequently learned that Perozzo had a prior felony conviction.

Based on this conduct, a grand jury indicted Perozzo on one count of third-degree misconduct involving weapons (for being a felon in possession of a concealable firearm).² In addition, the State charged Perozzo by information with one count of fifth-degree misconduct involving weapons (for failing to immediately inform the police that he was armed).³

Prior to trial, Perozzo's attorney filed a motion to suppress the evidence seized as a result of the traffic stop. In this motion, Perozzo's attorney argued that Officer Farr had impermissibly expanded the scope of the traffic stop by asking Perozzo, a passenger, for his identification and then conducting a warrants check.⁴ Perozzo's attorney argued that these unlawful actions led directly to the detention of Perozzo and to the discovery of the firearm and holster.

Officer Farr was the sole witness at the evidentiary hearing. Farr acknowledged that his request for Perozzo's identification bore no relationship to the traffic stop. But he explained that, as a matter of routine practice, he regularly requests identification from both drivers and passengers during traffic stops. Farr testified that if a passenger refuses to provide identification, and if he (Farr) has no reason to believe that the passenger has committed a traffic infraction or a crime, he "let[s] it go." But he did not "let it go" in this case because Perozzo "never told me that he didn't want to give me his driver's license."

Following the evidentiary hearing, the trial court denied Perozzo's motion to suppress. The court found that Farr's request for Perozzo's identification did not impermissibly expand the traffic stop. The court concluded that Farr could properly ask Perozzo for his identification and that, in any event, Perozzo had voluntarily given it to him.

Perozzo's case proceeded to trial. Relying on testimony that neither Farr nor the driver had noticed a gun in the center console area until after Perozzo had been removed from the vehicle, the prosecutor argued that Perozzo possessed the firearm at the time of the traffic stop and that he only removed it from the holster when he was ordered out of the vehicle. The jury convicted Perozzo of both charged counts.

On appeal, Perozzo renews his argument that the police unlawfully exceeded the scope of the traffic stop, and that the evidence pertaining to the firearm should have been suppressed. For the reasons explained in this opinion, we agree.

Why we conclude that the police were precluded from requesting Perozzo's identification and using that identification to run a warrants check

Both the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Alaska Constitution prohibit unreasonable searches and seizures by the government.⁵ A seizure of a person occurs whenever a government officer engages in a show of official authority such that a reasonable person would not believe that he or she is free to leave.⁶

The United States Supreme Court has held that a traffic stop qualifies as a "seizure" of both the driver and any passengers, since even a passenger would conclude that an officer was "exercising control to the point that no one in the car was free to depart without police permission":⁷

A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver, diverting both from the stream of traffic to the side of the road, and the police activity that normally amounts to intrusion on "privacy and personal security" does not normally ... distinguish between passenger and driver.^{[8 ]}

Because traffic stops are considered "a species of investigative stop rather than a formal arrest,"⁹ they are generally evaluated under the principles enunciated by the United States Supreme Court in Terry v. Ohio and related cases.¹⁰ Under Terry , a traffic stop "must be temporary and [must] last no longer than is necessary to effectuate the purpose of the stop."¹¹ "The stop becomes unreasonable — and thus constitutionally invalid — if the duration, manner, or scope of the investigation" exceeds "the circumstances that justified the stop in the first place."¹²

The basic essentials of a traffic stop are relatively easy to discern with respect to the driver. When an officer stops a driver for a traffic violation, "the officer may ask the motorist to produce routine driving documents" — including the driver's license, proof of insurance, and vehicle registration.¹³ A police officer may run a computer check to verify the validity of the driver's documents — in order to ensure that the driver is authorized to continue driving — and doing so does not generally unreasonably extend the scope or duration of a valid traffic stop.¹⁴ Even a warrants check for the driver may reasonably be viewed as part of the traffic stop, "as long as this check [is] done expeditiously, so as not to significantly extend the duration of the stop."¹⁵

But the rationale for these "routine" checks is significantly diminished as to a passenger who has been seized solely by virtue of being present in a vehicle subject to a traffic stop — particularly for a minor equipment violation like a dirty or non-illuminated license plate.

It is undisputed in this case that Officer Farr did not suspect Perozzo of any wrongdoing when he requested his identification. Nor did Farr testify to any case-specific safety concerns or need to obtain Perozzo's identity. Rather, he testified that it was his regular practice to request identification from passengers.

The question we must therefore confront in this appeal is whether the Alaska Constitution permits an officer to request identification from a passenger and then use that identification to run a warrants check, absent any reasonable suspicion of wrongdoing by the passenger, or other particularized safety concerns or circumstances indicating a legitimate need to obtain a passenger's identification.

Neither the United States Supreme Court nor the Alaska courts have yet addressed whether an officer's request for a passenger's identification and a subsequent warrants check fall within the scope of a "routine" traffic stop, and therefore may be done without a reasonable suspicion of criminality or other particularized justification.¹⁶

But over time, the United States Supreme Court has expanded the authority of police officers over both drivers and passengers during routine traffic stops. For instance, the Supreme Court has held that police officers may inquire into matters unrelated to the stop — as long as the inquiry does not unreasonably extend the stop.¹⁷ The Court has also authorized officers to order both drivers and passengers to exit the vehicle, even absent a particularized safety concern.¹⁸

In line with this authority, all federal circuit courts to address the issue have concluded that officers may request a passenger's identification during a traffic stop and run a warrants check, even absent an independent basis...