Court limits police power

Imminent public danger warrants investigative stop

Posted: Wednesday, November 17, 2004

ANCHORAGE A court ruling is preserving Alaskans' constitutional rights at a time when government and police powers are being expanded because of terrorism, a public defender said Tuesday.

The Court of Appeals decision stands out for what it says won't be allowed in Alaska even given the increased need for public safety, said Barbara Brink, an Anchorage lawyer.

''We are entitled to be free of government hassle in Alaska, thank goodness,'' Brink said. The court's reasoning is particularly gratifying when ''civil liberties are going out the window,'' she said.

The case involved Steven Reichel, 40, of Homer, who was stopped by police on Oct. 28, 2001, outside Alice's Champagne Palace in Homer. Officers doing a ''bar check'' suspected Reichel was violating probation by drinking.

At the time, Reichel was on parole for driving while intoxicated and was not supposed to drink alcohol or be where it was sold.

Homer police Sgt. William Hutt, who was acquainted with Reichel from previous probation violation arrests, spotted him in the bar. Reichel got up and left a short time later.

Hutt and the other officers stopped Reichel outside the bar and held him there while they contacted his parole officer. The parole officer instructed police to arrest Reichel. Police searched Reichel and found a small amount of cocaine in his pocket.

Reichel was charged with felony misconduct involving a controlled substance. He later pleaded no contest with the understanding an appeal would be filed and, if he won, the state's case would disappear along with the drug conviction.

The Superior Court refused to suppress the drug evidence. But Reichel successfully argued on appeal that if the stop was illegal, than anything obtained from it could not be used as evidence, said Kenai public defender Joe Montague.

The Alaska Constitution provides greater protections than many other states and federal law against illegal police stops, Montague said.

''If they bought the state's argument, anybody convicted in a prior offense could be stopped and harassed,'' he said.

Under state law, police may conduct an investigative stop if there is imminent public danger or recent serious harm to people or property.

The appeals court found that the facts of this case did not support the stop. The court said, ''Wait, there is no evidence this guy was going to drive. There's no evidence he even was drunk,'' Montague said.

The state also tried to argue that police had not conducted an investigative stop but had ''merely approached Reichel outside the bar and asked if they could speak to him.''

But both the lower court and the appeals court found that officers had conducted an investigatory stop, showing authority in order to get information they wanted.

''A stop like that is unwarranted. It is unconstitutional,'' Brink said. ''Investigative stops require reasonable suspicion.''

The state also argued that the stop was necessary because officers believed that Reichel was about to drive while intoxicated.

However, the appeals court found that testimony in the case strongly supported that Reichel did not intend to drive and had a taxi cab waiting about 10 feet away when he was arrested.

''They were just hassling this poor guy,'' Brink said.

The state also argued that the officers didn't know for certain that Reichel would take the cab and, even if he did, he could have been driven to another vehicle he intended to drive.

''But an investigative stop can not be grounded on a police officer's lack of knowledge as to whether a person might commit an offense, or an officer's speculation about a person's proclivity to commit a future offense,'' the appeals court said.

The court concluded that under the state's reasoning police would have the authority to stop any person with a prior DWI based merely on suspicion that the person had consumed some amount of alcohol at a social gathering.

In fact, police would be allowed to stop anyone whose driver's license was suspended if they were spotted walking near a parking lot, the court said.

''This would be an unwarranted and unconstitutional expansion of police authority to conduct investigative stops,'' the ruling said.

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