State v. G.B.

769 P.2d 452, 1989 Alas. App. LEXIS 25
Court of Appeals of Alaska·Decided March 3, 1989·No. No. A-2598·Published·Cited by 31 cases

Opinion

OPINION

BRYNER, Chief Judge.

In this case, the State of Alaska petitioned for review of an order entered by Superior Court Judge Mark C. Rowland, suppressing certain evidence obtained in the course of an investigative stop of G.B., a minor. We granted review and ordered briefing because the case presents an important and unresolved question of law which involves a substantial public interest that might be compromised in the absence of immediate review. See Alaska R.App.P. 402(b)(2). We reverse the superior court’s suppression order.

The facts in this case are undisputed. At about noon on February 17, 1988, an employee of a video rental store in Wasilla saw a young man behind the counter of the store and confronted him. The young man ran from the store. The employee called the police, reported a suspected theft, and described the suspect.

A police dispatcher relayed this information to Alaska State Trooper Michael Dek-reon, who was in the area of the store. Almost as soon as the dispatch was completed, Dekreon spotted a young man on foot who matched the description given in [454] the dispatch. Dekreon asked the man to enter his patrol car. Once inside the car, the young man identified himself as G.B. Dekreon recognized the name in connection with a trespass into another business establishment several weeks earlier.

Dekreon proceeded to conduct a patdown search for weapons. In the course of the patdown, he observed a cash register tape on G.B.’s person. When asked about the tape, G.B. made incriminating statements that eventually led Dekreon to more than $800 in cash that G.B. had stolen from the video rental store and hidden nearby.

A delinquency petition was eventually filed against G.B., alleging conduct amounting to theft in the second degree. G.B. moved to suppress all evidence resulting from his stop by Trooper Dekreon. He contended that the stop violated the standard established for investigative stops by Coleman v. State, 553 P.2d 40 (Alaska 1976). G.B. argued that, in stopping him, Dekreon had reasonable suspicion to believe only that a minor theft had occurred. According to G.B., Dekreon’s suspicion of a minor theft did not justify an investigative stop, because Coleman held investigative stops to be permissible only in “cases where the police officer has a reasonable suspicion that imminent public danger exists or serious harm to persons or property has recently occurred....” Coleman, 553 P.2d at 46.

Following an evidentiary hearing, Judge Rowland granted G.B.’s suppression motion. The judge found, as a factual matter, that the information reported to Dekreon gave rise only to a reasonable suspicion that shoplifting or some other minor theft from a commercial business had been committed. The judge concluded that such a theft was insufficient to constitute serious harm to property, as contemplated by Coleman. Although Judge Rowland emphasized that Dekreon’s response to the situation had been reasonable and appropriate under the circumstances, he felt constrained to rule that the investigative stop was impermissible under the Coleman standard.

In its petition for review, the state does not seriously contest the superior court's factual findings. Rather, the state urges us to adopt a broader view of the Coleman standard than that adopted below. In response, G.B. contends that the superior court properly construed and applied the Coleman standard. We are thus called upon to decide whether Coleman’s requirement of “serious harm to persons or property,” precludes a police officer who is responding to a report of a recently committed minor theft from conducting an investigative stop in the immediate vicinity of the crime scene.

Our decision must be guided, at the outset, by recognition of the concern that prompted the Coleman rule. Coleman’s requirement that a police officer have “a reasonable suspicion that imminent public danger exists or serious harm to persons or property has recently occurred” derives from Justice Brennan’s dissenting opinion in Adams v. Williams, 407 U.S. 143, 153, 92 S.Ct. 1921, 1926, 32 L.Ed.2d 612 (1972). See Coleman, 553 P.2d at 45-46 n. 17. Adopting Justice Brennan’s view in Adams, the Coleman court noted, “that the doctrine of stop and frisk ... should not be extended beyond situations requiring immediate police response to protect the public in serious cases where there is likelihood of imminent danger about to occur or where serious harm has recently been perpetrated to persons or property.” Coleman, 553 P.2d at 46 n. 17.

Justice Brennan’s primary concern in Adams, however, was with potential abuses in cases involving possessory crimes. In such cases, Justice Brennan perceived a high risk that stops based on something less than probable cause might simply be used as a pretext to conduct searches for evidence. Justice Brennan perceived a danger in such cases that the reasonable suspicion requirement, unless restricted, would “[open] the sluicegates for serious and unintended erosion of the protection of the Fourth Amendment.” Adams, 407 U.S. at 153, 92 S.Ct. at 1927.

Coleman’s requirement of imminent public danger or recently committed serious [455] harm to persons or property has remained intact since it was originally adopted. Applying the Coleman rule, the Alaska Supreme Court and this court have uniformly held that various property and drug-related felonies qualify as offenses involving serious harm to persons or property. See, e.g., Ozenna v. State, 619 P.2d 477 (Alaska 1980); Free v. State, 614 P.2d 1374 (Alaska 1980); Pooley v. State, 705 P.2d 1293 (Alaska App.1985); and Hubert v. State, 638 P.2d 677 (Alaska App.1981). We have also held that misdemeanor offenses such as driving while intoxicated and driving while license suspended are sufficiently serious to pose an imminent danger to public safety. See, e.g., Ebona v. State, 577 P.2d 698 (Alaska 1978); Smith v. State, 756 P.2d 913 (Alaska App.1988).

When no reasonable suspicion existed to believe that any particular crime had been committed or that imminent public danger existed, this court has found the Coleman rule to be violated. See Metzker v. State, 658 P.2d 147 (Alaska App.1983). We know of no case, however, in which an investigative stop has been invalidated solely because the stop did not relate to a crime posing an imminent danger to public safety or causing serious harm to persons or property.

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State v. G.B., 769 P.2d 452, 1989 Alas. App. LEXIS 25 (Ala. Ct. App. 1989).

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