John Murtagh

1101 West 7th Ave.

Anchorage Alaska, 99501

(907) 274-8664

Attorney for Mr.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA AT ANCHORAGE

UNITED STATES OF AMERICA,

Plaintiff,

vs. Case No.

xxxxxxxxxxxxxxxxxxxxxxxx,

Defendant.

DEFENDANT'S POST HEARING SUPPLEMENTAL

MEMO IN SUPPORT OF MOTION TO SUPPRESS

1. STATEMENT OF FACTS

1. INITIAL DETENTION OF MR. xxxxxxxxx

Testimony at the evidentiary hearing amplifies and modifies the facts briefly outlined in Mr. xxxxxxxxx's opening memoranda.

Officer Kirkley testified that on Monday February 10, 1997, just before 2:00 P.M. he went to 520 West 58th in response to a dispatch report that a man had been "occasionally nodding off' in a car parked in a parking lot since morning.

Officer Kirkley described the area as a parking lot surrounding a commercial office and warehouse complex housing numerous offices and warehouses. Doors for the public were in the front while in the back there was additional parking near large overhead doors and office doors for loading, shipping or alternative entrances.

Officer Kirkley testified the call was from a citizen which did not state any basis for the call. Nothing indicates Mr. xxxxxxxxx was the same person the caller observed earlier or if he had left and returned since that morning. Officer Kirkley testified it is not unusual for people to park either to take a nap or if they had been drinking.

When Officer Kirkley arrived he saw Mr. xxxxxxxxx's Oldsmobile, lawfully parked in the parking area. He observed Mr. xxxxxxxxx head lean forward against the steering wheel, with the engine racing. Officer xxxxxxxxx considered it unusual to be "nodding off' in a commercial lot but agreed on cross examination that since it was 25 degrees it was not unusual to keep the engine running and that old cars in cold weather often need to be given added gas to keep the engine running.

Officer Kirkley did not corroborate anything on arrival. He did not talk to anyone nor wait to observe Mr. xxxxxxxxx. He did not know what businesses were open or if space was available for rent. Instead Officer Kirkley parked his police car near Mr. xxxxxxxxx's car, exited and went to the passenger window of Mr. xxxxxxxxx's car. The window was open a few inches and thru it he saw suitcases and a brief case.

Officer Kirkley tapped on the passenger window and in a few seconds, Mr. xxxxxxxxx awoke and looked at Officer Kirkley. Officer Kirkley, without discussion ordered Mr. xxxxxxxxx to produce identification. Mr. xxxxxxxxx stated he had identification in his brief case and immediately reached for his brief case.

As xxxxxxxxx did so, Officer Kirkley circled to the driver's door and without asking for or obtaining permission, Officer Kirkley opened Mr. xxxxxxxxx's driver's door. Officer Kirkley testified he did this to obtain a better view as Mr. xxxxxxxxx opened his brief case. Mr. xxxxxxxxx quickly removed his passport from his brief case and gave it to Officer Kirkley. Officer Kirkley thought it unusual to provide a passport but agreed this complied with his request since he did not ask for a driver's license.

Officer Kirkley testified he did not give Mr. xxxxxxxxx a choice as to identification nor tell him he was free to leave. He testified that Mr. xxxxxxxxx was not free to leave. Nor did he ask why or how long Mr. xxxxxxxxx had been parked there.

Officer Kirkley testified he initially suspected Mr. xxxxxxxxx was "under the influence of something" but when asked for a basis could only articulate that xxxxxxxxx initially appeared "lethargic." Officer Kirkley testified there was never any smell of alcohol, that he did not appear to have been drinking and suggested no objective observations such as slurred speech or blood shot eyes that differed from being sleepy or awakened. Officer Kirkley testified he thought "nodding off ' was consistent with either being sleepy or heroin use but admitted he had no experience observing heroin symptoms and testified to no objective observations inconsistent from a person aroused from sleep.

Moreover, while Officer Kirkley initially thought Mr. xxxxxxxxx to be lethargic as he awoke, he did not testify Mr. xxxxxxxxx continued to act lethargic or that he continued to suspect anything as the detention progressed. To the contrary, Officer Kirkley testified Mr. xxxxxxxxx cooperated and produced identification within seconds. As illustrated below, Officer Kirkley testified Mr. xxxxxxxxx always quickly responded to orders and thus any initial "lethargic" conduct disappeared once Mr. xxxxxxxxx awoke.

2. FRISK & ARREST OF MR. xxxxxxxxx

As Officer Kirkley recorded information in his notebook, he ordered Mr. xxxxxxxxx to shut off his engine, to insure he did not drive off. Mr. xxxxxxxxx complied. It is clear Mr. xxxxxxxxx was not free to leave. Officer Kirkley testified that in fact Mr. xxxxxxxxx was not free to leave. He testified that throughout the contact Mr. xxxxxxxxx was calm and cooperative and did not seem upset.

After Officer Kirkley opened the door without permission, he glanced through the open door and observed a leather pouch protruding below Mr. xxxxxxxxx's jacket. He thought it might be the bottom of a holster. Fearing a gun, Officer Kirkley drew his weapon and ordered Mr. xxxxxxxxx to place his hands on the steering wheel. Officer Kirkley testified Mr. xxxxxxxxx immediately cooperated, and was aware of his drawn weapon.

When Mr. xxxxxxxxx put his hands on the wheel, Officer Kirkley reached inside the car, lifted up Mr. xxxxxxxxx's jacket and discovered a leatherman type tool holster and tool. The tool is similar to a Swiss army knife, containing multiple tools like screw drivers, scissors, etc. It was clear the tool holder did not contain a gun.

At this point, Officer Kirkley also observed a leather belly pack, around Mr. xxxxxxxxx's waist. Officer Kirkley testified to nothing objectively unusual about this belly pack. Officer Kirkley testified to nothing suggesting Mr. xxxxxxxxx was armed or dangerous. To the contrary he testified Mr. xxxxxxxxx was calm, and cooperative throughout. On cross examination Officer Kirkley agreed that belly or fanny packs of this nature are commonly worn by many including many tourists.

In spite of the lack of objective facts suggesting danger, Officer Kirkley ordered Mr. xxxxxxxxx to exit his car to search his belly pack because sometimes weapons may be inside them. Mr. xxxxxxxxx quickly complied. Officer Kirkley ordered Mr. xxxxxxxxx to place his hands behind his head with his fingers interlocked behind his neck. Officer Kirkley testified that Mr. xxxxxxxxx quickly complied.

Officer Kirkley used one hand to secure Mr. xxxxxxxxx's hands and with his other, reached around and searched the outside of Mr. xxxxxxxxx's fanny pack and felt a hard object inside. Officer Kirkley testified he asked Mr. xxxxxxxxx if the pack contained a gun and Mr. xxxxxxxxx stated it did. Officer Kirkley testified he did not give Mr. xxxxxxxxx Miranda warnings before questioning him as to his belly pack or the gun.

Officer Kirkley then handcuffed Mr. xxxxxxxxx and placed him under arrest for carrying a concealed weapon. Officer Kirkley then opened the belly pack and removed a pistol. As noted above, Officer Kirkley testified Mr. xxxxxxxxx was never free to leave during this period.

3. THE CUSTODIAL INTERROGATION & SEARCH OF MR. xxxxxxxxx

Officer Kirkley testified that at the time of the formal arrest of Mr. xxxxxxxxx, he did not know if Mr. xxxxxxxxx had a permit for his concealed weapon. Officer Kirkley conceded that it was sometime after Mr. xxxxxxxxx was formally arrested that he asked Mr. xxxxxxxxx whether he had a permit to lawfully conceal the weapon. Officer Kirkley testified that at the time he questioned Mr. xxxxxxxxx as to a permit for the concealed weapon, he still had not given Mr. xxxxxxxxx any Miranda warnings. Officer Kirkley testified that in response to his questions, Mr. xxxxxxxxx admitted that he did not have a permit to carry a concealed weapon.

Officer Kirkley then proceeded to frisk Mr. xxxxxxxxx. Officer Kirkley searched Mr. xxxxxxxxx's jacket pockets and removed two opaque paper "binders" which he believed were commonly used to contain drugs. At this point he did not open the binders or ask Mr. xxxxxxxxx what they contained.Officer Kirkley continued to search Mr. xxxxxxxxx, feeling a "large oblong object" in the lower edge of the jacket that was about 3/4 inches around and 5 inches long. He squeezed the bundle and it was soft. Office Kirkley testified he asked Mr. xxxxxxxxx if the larger packet contained drugs and Mr. xxxxxxxxx "nodded yes."

Officer Kirkley reached inside a tear in the jacket pocket and removed the larger bundle from the lining. The bundle contained two opaque envelopes. Officer Kirkley opened them and inside found plastic bags which he thought contained heroin and cocaine. Officer Kirkley asked Mr. xxxxxxxxx if he had any needles and Mr. xxxxxxxxx responded he had only been smoking drugs. Again no Miranda warnings were given prior to any of these questions relating to drugs.

Backup was called and field tests were positive. Mr. xxxxxxxxx was transported to the Anchorage Police Department and his car impounded and towed to the Anchorage Police Department. Mr. xxxxxxxxx was brought before a state Magistrate for controlled substance and weapons, and bail was set and posted.A warrant was later obtained to search the car which resulted in seizure of 5 lbs of cocaine and 4 ounces of heroin. It was stipulated that the warrant to search the car was the fruit of the initial detention, frisk, arrest and custodial questioning of Mr. xxxxxxxxx.

No federal authorities participated in the detention, frisk, search and arrest of Mr. xxxxxxxxx or search of his car. State police contacted federal authorities and federal agents decided to bring federal charges.

II. ARGUMENTS

I. THE INITIAL DETENTION WAS UNLAWFUL

The initial contact, detention, order to produce ID and opening of Mr. xxxxxxxxx's door violated the 4th amendment. It is clear that even minimal detentions under the 4^th Amendment require reasonable grounds. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395, 59 L.Ed.2d 660 (1979); Brown v. Texas 443 U.S. 47, 99 S.Ct. 2637; 61 L.Ed 2d 357 (1979); U.S. v Brignoni-Ponce 422 U.S. 873; 95 S.Ct. 2574, 45 L.Ed 2d 607 (1975); Terry v. Ohio 392 U.S. 1; 88 S.Ct. 1869 (1989); Sibron v New York 392 U.S. 40; 88 S.Ct. 1889 (1968); U.S. v. Thomas 863 F. 2d 622 (9th Cir. 1988); U.S. v.Hernandez- Alverado 891 F. 2d 1414 (9' Cir. 1989); Easyriders Freedom F.I.G.H.T. v. Hannigan 92 F.3d 1486 at 1496 (9th Cir. 1996).

When Officer Kirkley initially contacted Mr. xxxxxxxxx, he knew only that Mr. xxxxxxxxx had been "nodding off' in his lawfully parked car. Napping is not a crime. Nothing suggests a violation of any law and no crime was reported. Case law establishes Officer Kirkley had no grounds to knock on Mr. xxxxxxxxx's window, order him to put produce ID or open his car door without consent absent any reasonable grounds to think that criminal activity was afoot.

Officer Kirkley testified he had received information from dispatch that a citizen reported seeing someone "occasionally nodding off' in the parking lot since morning.

Again however this was not criminal. While Officer Kirkley thought it unusual to stay so long in an office lot, he also conceded that drivers often stop to take naps.. To someone who had driven overnight a four hour nap would not be abnormal. Officer Kirkley also agreed that Alaskan drivers often keep engines running in cold weather and that it is not unusual to race the engine of older cars to keep them from stalling in cold weather. Mr. xxxxxxxxx's observed conduct was not even that "unusual" let alone conduct denoting criminal activity as required under the above law.

Nor was it reasonable to detain Mr. xxxxxxxxx without investigation. Officer Kirkley did not observe Mr. xxxxxxxxx or talk to the person who called dispatch. It is not clear Mr. xxxxxxxxx was the same person that had been there that morning and even if he was it is possible he left and came back. Had Officer Kirkley discovered this it would have made Mr. xxxxxxxxx's clearly lawful conduct even less unusual./'

Nor was it reasonable to require Mr. xxxxxxxxx to produce ID or for the officer to open his car door without first taking the less intrusive approach of asking Mr. xxxxxxxxx what he was doing or how long he had been there. In the state bail hearing, Mr. xxxxxxxxx explained to the magistrate that he had been waiting in the parking lot to rent a vacant office space, had rented an office there in the past, and had talked to the landlord and intended to meet him there. This was a reasonable explanation. --Had Officer Kirkley inquired, Mr. xxxxxxxxx's explanation would have fully explained his presence.

Officer Kirkley testified that at the start of detention he suspected Mr. xxxxxxxxx might be under the influence of something, but this was based on the sole observation that when he first awoke, he appeared "lethargic." Officer Kirkley conceded there was no smell or symptoms of

alcohol and did not describe slurred speech or unusual eyes. Officer Kirkley did not even converse with Mr. xxxxxxxxx so as to evaluate his mental state. Officer Kirkley conceded he had

__________________

Given the vagueness of the tip received by dispatch, as well as the lack of indicia of reliability or first hand information and absent corroboration of how long Mr. xxxxxxxxx had been observed in the lot, the tip was of no value in supporting reasonable grounds. Illinois v. Gates 462 U.S. 213

no experience with symptoms of heroin and he could not explain how the "lethargic" conduct differed from being recently awakened.

Moreover Officer Kirkley did not testify that Mr. xxxxxxxxx continued to act lethargic or that he continued to suspect he was under the influence of anything once he fully awoke. To the contrary, Officer Kirkley's testified that Mr. xxxxxxxxx quickly cooperated by producing ID within seconds and immediately or quickly responded to all orders to exit the car, stand facing the trunk and put his hands behind his head. This testimony established that Mr. xxxxxxxxx responded quickly to all of the above orders and was fully cooperative.

With the above facts in mind, an examination of the controlling law establishes that there were no reasonable grounds to contact or detain Mr. xxxxxxxxx. In Delaware v. Prouse, sul2ra the Supreme Court held that stopping vehicles to check registration or ask for identification violates the 4th amendment absent reasonable grounds or probable cause stating;

... we hold that except in situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that the vehicle or occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment.

Delaware v. Prouse, supra at 663.

In Easyriders Freedom F.I.G.H.T. v. Hannigan 92 F.3d 1486 at 1496 (9th Cir. 1996) the 9th Circuit recently re-affirmed its earlier authority that even brief or minimal stops require reasonable suspicion that criminal activity is at play;

The Fourth Amendment's prohibition of unreasonable searches and seizures extends to the brief investigatory stop of a vehicle... An officer may not detain a motorist without a showing of "reasonable suspicion." ... This "objective basis or reasonable suspicion must consist of specific articulable facts which together with objective and reasonable inferences form the basis for suspecting that the particular person detained is engaged in criminal activity ...

Easyriders supra at 1496 citing U.S. v. Garcia Camacho 53 F.3rd 244 (9^th Cir 1995).

The above has been more fully articulated in the Ninth Circuit in the case of U.S. v. Thomas, supra where the 9' Circuit stated the applicable standard for a brief detention to be as follows;

The level of cause necessary to provide a sufficient basis for a brief investigatory stop was first outlined in Terry v. Ohio 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and further defined in United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). "An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, 449 U.S. at 417, 101 S.Ct. at 695. In evaluating the lawfulness of the stop, the "totality of the circumstances--the whole picture-- must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." Id. at 417-18, 101 S. Ct. at 694-95. Founded suspicion must exist at the time the officer initiates the stop.

Thomas, supra at 625

Moreover, an investigative stop under Terry is only reasonable if it employs the least intrusive means available. As the Ninth Circuit recently reaffirmed:

Of course investigatory stops that initially comply with the Fourth Amendment because they are supported by reasonable suspicion may violate the Fourth Amendment if they continue for a period of time beyond that which is necessary for brief investigation. Terry stops are constitutionally permissible only where the means utilized are the least intrusive reasonably available.

Easyriders, supra at 1498

In U.S. v. Hernandez- Alverado 891 F. 2d 1414 (9th Cir. 1989) the 9th Circuit found police lacked reasonable grounds to question a car's occupants though they acted nervous, reduced speed below the limit when they saw police, were Mexicans who lived near the border in a high drug area, had a large trunk and antenna common for dealers and tags showing the car was brought from a car dealer known to traffic drugs. Id @ 1418. The 9th Circuit in Hernandez- Alverado held these facts, though suspicious was too common for innocent people to justify even a minimal stop holding;

Considered jointly, these factors are insufficient to justify an investigatory stop. While they may allow certain inferences to be drawn, they describe too many individuals to create a reasonable suspicion that this particular defendant is engaged in criminal activity. For example while the car dealership has been associated with drug activity, many citizens with no connection to drug trafficking also have purchased family vehicles there. Likewise, many law-abiding motorists have twoway antennas on their cars, live near the Mexican border and reduce speed when being followed by a law enforcement vehicle. Thus these facts in combination do not constitute reasonable suspicion.U.S. v. Hernandez-Alverado, supra at 1418-1419

In U.S. v. Kerr 817 F.2d 1384 (9^th Cir. 1987) police observed a man loading boxes in a car in a neighborhood with many recent burglaries. When police blocked the drive, defendant exited his car to talk to police. Id at 1387 The short detention led to evidence of drugs. The 9th Circuit held loading boxes, though suspicious in a high burglary area, was objectively innocent and created only a hunch and not reasonable grounds of criminal activity to justify even the minimal stop. Id at 13 87

Under the above law, Mr. xxxxxxxxx's conduct of napping in his lawfully parked car in no way denotes criminal activity to justify the intrusions of ordering him to produce identification or opening his car door. Delaware v. Prouse, supra at 663.

By comparison to the above cases, Mr. xxxxxxxxx's conduct of napping in his lawfully parked car was not nearly as suspicious as the suspicious driving and circumstances viewed by the Ninth Circuit in Hemandez-Alverado or nearly as suspicious as the observed conduct of loading a car in a high burglary area as in U.S. v. Kerr. At least in these cases police had a hunch that defendants were related to known drug trafficking or string of burglaries. By contrast Officer Kirkley had not even a hunch that any criminal activity had taken place in that area, let alone grounds to think Mr. xxxxxxxxx's act of napping was somehow related to any known crime.

Similar to the above Ninth Circuit cases, Mr. xxxxxxxxx's napping in a lawfully parked car was innocuous and too common amongst innocent people to permit a detention. Just as the Ninth Circuit noted that too many innocent people drive nervously when followed by police or load cars in high crime areas to denote criminal conduct, so too napping in public is too common to denote criminal conduct.

Other 9^th Circuit cases agree that observations consistent with innocent conduct are not reasonable grounds to justify even short contacts under the 4" Amendment. Brown v. Texas, supra, (no reasonable suspicion based on two pedestrians meeting suspiciously in alley in high drug area); U.S. v Brignoni-Ponce, supra, (no reasonable grounds to stop Mexicans near border in spite of significant illegal immigration); U.S.

v.Carrizoza-Gaxiola 523 F. 2d 239 (9^th Cir. 1975) (no reasonable grounds to stop defendant, though driving new car similar to model targeted by car theft ring in area); Nicacio v United States I.N.S. 797 F.2d 700 (9th Cir. 1985); (suspicious dress and appearance insufficient to justify border stops); U.S. v. Roberts 874 F. 2d 701 (9^th Cir 1989) (suspicious driving & behavior, and large trunk capable not reasonable grounds.)

Moreover under the above Ninth Circuit cases, Officer Kirkley did not take the least intrusive means available by independently investigating or asking Mr. xxxxxxxxx for an explanation of his presence. Had he done so, he could have evaluated Mr. xxxxxxxxx's mental state and could have been satisfied with his explanation and thus no further detention would have been justified. Easyriders, supra at 1498

Under the above law the fact that Mr. xxxxxxxxx was napping in his lawfully parked car does not suggest criminal activity and nothing justified ordering him to produce ID or opening his door. But for this unlawful conduct Officer Kirkley would not have seen the tool or belly pack and would have had no plausible grounds to remove Mr. xxxxxxxxx from his car or frisk him. Thus all evidence seized from Mr. xxxxxxxxx or his car must be suppressed.

2. THE REMOVAL OF MR. xxxxxxxxx FROM HIS CAR,

AND FRISK & SEARCH WERE UNLAWFUL ABSENT

REASONABLE GROUNDS OR PROBABLE CAUSE

Even assuming arguendo the initial contact, order to produce ID or opening the car door were somehow valid, the subsequent ordering Mr. xxxxxxxxx from his car and frisking him was not. Terry v. Ohio 392 U.S. 1; 88 S.Ct. 1869 (1989); Sibron v New York 392 U.S. 40; 88 S.Ct. 1889 (1968); Pennsylvania v. Mimms, 434 U.S. 107, 98 S. Ct. 330 (1977); Michigan v. Long 463 U.S. 1032, 1049 (1983); Washington v. Lambert 98 F.2d 1181 (9^th Cir. 1996); U.S. v. Thomas 863 F.2d 622 (9th Cir. 1988); U.S. v. Ramirez- Sandoval 872 F. 2d 1392 (9th Cir. 1989); Easyriders Freedom F.I.G.H.T. v. Hannigan 92 F.3d 1486 at 1496 (9^th Cir. 1996).

The Ninth Circuit has made it clear that reasonable grounds for a stop will not automatically justify a frisk. In Thomas, supra, the 9"' Circuit stated the law as follows;

... we have determined that the stop was based on founded suspicion. But a so-called Terry stop is by its very nature of temporary duration and limited in its intrusiveness on the liberty of the suspect being investigated. A lawful frisk does not always flow from a justified stop. Each element, the stop and the frisk, must be analyzed separately; the reasonableness of each must be independently determined. The standard for justifying a frisk is whether a reasonably prudent person in the circumstances would be warranted in the belief that his or her safety or that of others was in danger. Terry v. Ohio ... If the stop is based on founded suspicion and the officer has reason to believe that the suspect is armed and dangerous, the officer may conduct a limited weapons search.

Thomas, supra at 628.

In Washington v. Lambert 98 F.2d II 81 (9t' Cir. 1996) the Ninth Circuit more recently re-affirmed that police may not presume a person is armed or dangerous every time they have reasonable grounds to effectuate a stop for a non- violent offense. In the context of a civil rights case based on an improper arrest the Ninth Circuit recently summarized;

In this nation, all people have a right to be free from the terrifying and humiliating experience of being pulled from their cars at gunpoint, handcuffed or made to lie face down on the pavement when insufficient reasons for such intrusive police conduct exists. The police may not employ such tactics every time they have an "articulable basis" for thinking that someone may be a suspect in a crime. The infringement on personal liberty resulting from so intrusive a type of investigatory stop is simply too great. Under ordinary circumstances, when police have only reasonable suspicion to make an investigatory stop, drawing weapons and using handcuffs and other restraints will violate the Fourth Amendment.

Washington v. Lambert, supra at 1187. Both Thomas, supra and Washington v. Lambert, supra establish that under the Temy reasonable grounds for a stop does not automatically create reasonable grounds for a frisk.

In Pennsylvania v. Mimms, 434 U.S. 107 (1977) police had valid grounds to stop a car for expired plates. Police asked the driver to step out of the car and to the side of the road due to the undisputed violation of law as well as concern of being hit by passing traffic. When the driver complied, police saw a large bulge under his coat at his belt that looked like a gun and frisked him and removed the gun. The Supreme Court upheld the removal from the car due to the violation of the law and concern of passing traffic and upheld the frisk only because the police observed a bulge that looked like a gun. 98 S.Ct at 334 In doing so the Supreme Court was clear to note its holding did not permit police to frisk occupants of all cars. Id at 333 n. 5 & 6. Rather the holding was limited to cases were the stop involved a clear violation of law and where a bulge that looked like a gun created a valid objective basis to fear a weapon. Id at 334.

By contrast to Pennsylvania v. Mimms, supra, Mr. xxxxxxxxx was lawfully parked in an area with no threat of passing cars and Officer Kirkley had no reasonable grounds to suspect a violation or crime. Nor did Officer Kirkley observe any bulge or factors that gave him an objective basis to conclude that Mr. xxxxxxxxx was armed, beyond the hypothetical possibility that all belly packs are large enough to contain weapons. By stark contrast to Mimms, supra, nothing justified removing or frisking Mr. xxxxxxxxx.

In Michigan v. Long, supra police approached a defendant who drove off the road and appeared intoxicated. As police approached they saw a knife on the car floor and thus frisked the defendant who was standing outside the car. While removing the knife they found drugs in plain view. The court affirmed that frisks conducted during traffic stops are limited under Terry to situations and areas where reasonable grounds

exist to suspect weapons. 463 U.S. at 1049

In Thomas, supra the 9th Circuit affirmed that Terry frisks violate the 4" amendment absent objectively reasonable belief of danger. In Thomas, dispatch reported two suspects were passing counterfeit bills at a given locale. Moments after hearing this, an officer stopped two suspects in a car at the stated locale who seemed to match the description as they exited the wrong way from a parking lot. The officer briefly questioned the driver when he exited the car and asked him if he had a weapon. When the driver did not respond, the officer frisked his jacket and felt a and removed a gun.

The 9th Circuit in Thomas, supra found that there were reasonable grounds for the initial stop, but that the frisk that followed was unlawful absent any objective basis to think the defendant was armed, ruling;

The scope of the inquiry following a stop and the detention is a fact-specific determination. Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983). The facts of this case indicate that the initial investigatory stop provided no basis for the subsequent detention and frisk. The events that transpired after the stop unreasonably interfered with Thomas' personal liberty and were violative of the Fourth Amendment.

Thomas, supra at 628. Even though there were two suspects to one officer, the defendant was large and the officer initially had grounds to suspect a crime, the Ninth Circuit in Thomas went on to explained that the officer had no objective basis for fearing the defendant was armed or dangerous, holding;

Nothing that occurred up to this point justified Officer Siegel's subsequent actions. ... Officer Siegel had no reason to continue the detention after he had asked his initial investigatory questions, and yet he asked Thomas whether he had any weapons. Under the circumstances of this case, the question concerning weapons was not prompted by Officer Siegel's reasonable belief that Thomas might be armed and presently dangerous, and therefore, the question was not justified... Nothing in the police dispatch suggested that either of the counterfeiting suspects was armed or dangerous. Nor were there any other circumstances that would lead to such a belief

Thomas, supra at 629. The Ninth Circuit rejected the government's argument that a frisk was necessary to protect the officer, holding ;

The government argues that once Officer Siegel made the stop, he could do nothing else but continue his investigation: "He surely couldn't turn his back and walk away. If it was reasonable for him to investigate further by asking questions, it was reasonable for him to pat-down the exterior of [Thomas'] clothing." The way that Officer Siegel conducted his investigation, however, cannot be used to bootstrap a justification for the detention and frisk of Thomas. "The 'narrow scope' of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked...... If we followed the government's logic, all investigatory stops would necessarily include a frisk. Without any reason whatsoever, a police officer could routinely ask about weapons and frisk the individual under suspicion. Such a result would not only destroy the necessary distinction between the stop and frisk, but would indiscriminately subject countless individuals to the humiliation and invasiveness of a bodily frisk. We cannot allow the protections afforded by the 4th Amendment to be tampered with so carelessly.

Thomas, supra at 630. Similar to Thomas, once Officer Kirkley saw the leather holder contained only a tool, he had no further grounds to continue the detention or frisk.

In U.S. v. Ramirez- Sandoval 872 F. 2d 1392 (9hCir. 1989) the 9^th Circuit held a valid stop did not justify questioning occupants of a van. Police stopped a van that reportedly had numerous people coming and exchanging money in a suspicious manner in a high drug area. The court held the stop was valid but that police did not have grounds to look at papers or questioning occupants in the van. Id at 1397

In.Sibron v. New York supra, Sibron was observed by an officer in the course of an evening to meet with as many as eleven known drug addicts. The officer contacted Sibron who was on foot and stated "you know what I am after"and when Sibron put his hand in his pocket, the Officer reached inside the pocket and grabbed envelopes of heroin. 88 S.Ct. at 1893 The Supreme Court held the officer did not have sufficient grounds to believe that Sibron might be armed or dangerous to justify a limited search. Id at 1905

Under the above law it is clear that there must be objective factors that create a threat to police to permit even a brief investigative frisk. In the instant case, there was no such threat to justify removing Mr. xxxxxxxxx from his car or frisking him. There was no report of a crime let alone violence. Mr. xxxxxxxxx was calm and cooperative. Once Officer Kirkley established that it was only a leatherrnan tool that he had observed and seized, there was no objective basis for suspecting Mr. xxxxxxxxx was armed.

By comparison to the above cases, Officer Kirkley had less objective grounds to conduct a frisk and his frisk of the belly pack was far more intrusive.

For example, by comparison to Thomas, the grounds to frisk Mr. xxxxxxxxx were much weaker since at least in Thomas, police knew a felony crime had taken place and initially had grounds to suspect defendants. By stark contrast napping in a lawfully parked car gave Officer Kirkley had no grounds to suspect any crime had occurred, let alone grounds to assume Mr. xxxxxxxxx was armed.

By comparison to Thomas, the level of intrusion in frisking Mr. xxxxxxxxx was far greater. The defendant in Thomas had already exited his car and the officer did a quick frisk of his jacket without moving. By comparison Officer Kirkley ordered Mr. xxxxxxxxx to produce ID, opened his car door without consent, drew his weapon, removed Mr. xxxxxxxxx from the car, moved him to the back of the car, ordered him to put his hands behind his neck and then physically restrained him while he frisked his belly pack. This was far more intrusive than the frisk in Thomas.

A comparison to Sibron, supra shows the same. At least in.Sibron, police had objective grounds to believe Sibron was involved in felony drug sales and again the level of intrusion in Sibron was small. Police asked Sibron to step out of a restaurant and quickly frisked his pocket. This was far less intrusive than Officer Kirkley's opening the door, drawing a weapon, ordering Mr. xxxxxxxxx out of and to the back of

the car, making him put up his hands, and physically restraining him during the frisk.

Indeed under the above cases Officer Kirkley had no objective basis for the frisk

at all. Officer Kirkley's sole basis for removing and frisking Mr. xxxxxxxxx was the observation that he wore a belly pack. Officer Kirkley however observed nothing objectively unusual about his belly pack. He observed nothing other than the ordinary pack commonly carried by many tourists. While Officer Kirkley testified that weapons are sometimes kept in fanny packs, the vast majority of people who wear fanny or belly packs do not carry weapons. A slight theoretical possibility that a fanny or belly pack might contain weapons is not reasonable grounds to frisk.

The defendant in Thomas was wearing a jacket which in fact did secrete a weapon without showing bulges as would many jackets. Still the 9^th Circuit did not permit the frisk of the jacket-even during a valid felony stop- absent objective facts suggesting weapons just because all jackets might hypothetically secrete weapons. Similarly the defendant in Sibron was clothed sufficiently to secrete a knife or gun. Still the Supreme Court did not permit the frisk of Sibron's pocket - even during a valid felony stop - just because most clothing might hypothetically secrete weapons.

In analogous situations, the Ninth Circuit has held that just because an area is hypothetically large enough to carry illegal aliens or large amounts of contraband - this does not supply reasonable grounds of criminal conduct - even when combined with suspicious or unusual behavior.

Thus in U.S. v. Hernandez- Alverado 891 F. 2d 1414 (9th Cir. 1989) the 9th Circuit held a large trunk capable of carrying large amounts of drugs was not grounds to denote a crime though police knew the car was bought from a dealer suspected of drug dealing, since too many innocent people had also done so. In U.S. v. Roberts 874 F. 2d 701 (9th Cir 1989) the 9th Circuit held a trunk hypothetically large enough to carry large amounts of contraband was not grounds to denote a crime even when combined with suspicious driving or acting nervous. By analogy, just because a belly pack is large enough to hold a gun is not objectively reasonable grounds to conclude that it does.

Officer Kirkley noted nothing unusual about Mr. xxxxxxxxx's belly pack. He did not see any bulge that looked like a gun. In every traffic stop a driver has access to glove compartments, floors, brief cases or coats that might hypothetically contain weapons. Indeed every person stopped in winter - even if not in a car - would have a coat and most females carry purses that might hypothetically secrete weapons. This possibility is not an objective justification to frisk everyone.

The 9^th Circuit in Lambert, supra warned that the Terry requirements are not mere technicalities since "... the security of one's privacy against arbitrary intrusion by the police - which is a the core of the Fourth Amendment - is basic to a free society." Id at 1183. Were the law so broad as to permit the frisk of every fanny pack, purse, or jacket, absent indication of criminal conduct, then nothing would stop police -from frisking anyone who was dressed, 100% contrary to the clear limits of Terry. As the Ninth Circuit warned in Thomas;

If we followed the government's logic, all investigatory stops would necessarily include a frisk. Without any reason whatsoever, a police officer could routinely ask about weapons and frisk the individual under suspicion. Such a result would not only destroy the necessary distinction between the stop and frisk, but would indiscriminately subject countless individuals to the humiliation and invasiveness of a bodily frisk. We cannot allow the protections afforded by the 4th Amendment to be tampered with so carelessly.

Thomas, supra at 630 Thus there were no objective grounds to justify the removal of Mr. xxxxxxxxx from his car or frisk of his belly pack and all evidence seized from Mr. xxxxxxxxx or his car must be suppressed /'ternatively, it is argued Officer Kirkley's conduct was so invasive as to require probable cause once he demanded Mr. xxxxxxxxx's ID, opened his door, ordered him to turn off his engine, drew his weapon, ordered him to put his hands on the wheel, exit the car, ordered him to stand at the back with his hands behind his head and physically restrained him while frisking. Lambert v. Washington supra at 1187.

3. THE CUSTODIAL INTERROGATION ABSENT MIRANDA WARNINGS WAS UNLAWFUL.

As an alternative argument, the Fifth Amendment also requires suppression of all evidence seized from Mr. xxxxxxxxx.

Mr. xxxxxxxxx was not given Miranda warnings until he was taken to the station. As soon as they were given, he asserted his right to remain silent. It is clear from the testimony that Officer Kirkley did not give Miranda warnings before he questioned Mr. xxxxxxxxx as to whether the belly pack contained a gun, whether Mr. xxxxxxxxx had a permit or whether the packets in the jacket contained drugs or a needle.

Absent Miranda warnings, , from the point that Mr. xxxxxxxxx was in custody, his answers and all fruits must be suppressed. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602@ 16 L.Ed.2d 694 (1966), at 444, 86 S.Ct. at 1612; Berkemer v. McCarty, 468 U.S. 4205 435-429 104 S.Ct. 3138,3147-529 82 L.Ed.2d 317 (1984).

Custodial interrogation, was defined in Miranda, supra to include "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id.

It is submitted that Mr. xxxxxxxxx was in custody well before he was asked whether his belly pack contained a weapon. The following undisputed facts establish that Mr. xxxxxxxxx was in custody when he was asked about the contents of his belly pack;

1. Officer Kirkley ordered Mr. xxxxxxxxx to produce ID and without consent opened his car door;

2. Officer Kirkley ordered Mr. xxxxxxxxx to turn of his car engine so that he could not drive away or leave;

3. Officer Kirkley drew his weapon and ordered Mr. xxxxxxxxx to put his hands on the steering wheel, searched under xxxxxxxxx's coat and seized his leatherman tool;

4. Officer Kirkley ordered Mr. xxxxxxxxx to exit the car, move to the back of the car, face the trunk and place his hands behind his neck and interlock his fingers;

5. Officer Kirkley physically restrained Mr. xxxxxxxxx by placing his hand over Mr. xxxxxxxxx's thus physically restraining his ability to move while he reached around with his other hand and frisked the belly pack;

The above conduct by Officer Kirkley clearly placed Mr. xxxxxxxxx in custody under Miranda. No reasonable person would feel free to walk away or ignore Officer Kirkley after he had been ordered to put his hands on the steering wheel at gunpoint, was ordered out of his car and was being physically restrained by Officer Kirkley.

It was at this point and after all of the custodial facts listed above that Officer Kirkley interrogated Mr. xxxxxxxxx as to the contents of his belly pack. Indeed at the time of the question, Mr. xxxxxxxxx was physically in custody and restrained by Officer Kirkley who was physically preventing him from moving let alone leaving. At the time of the questions, Officer Kirkley had clearly deprived Mr. xxxxxxxxx of his "freedom of action in any significant way." Miranda supra

The Supreme Court has held routine traffic stops are not usually "custodial" to require Miranda warnings. Berkemer v. McCarty, 468 U.S. 420, 435-42, 104 S.Ct. 3138, 3147-52, 82 L.Ed.2d 317 (1984) In Berkemer, however, police only asked questions and performed a sobriety test. Berkemer relied on the fact that routine stops are brief and do not impose coercive pressures to speak like interrogation at a police station does. Id. at 437-39

The court in Berkemer however distinguished routine stops from stops were defendants are questioned under custodial circumstances and rejected the argument that Miranda could be circumvented if police conducted coercive interrogations at gun point at a car rather than at a station, holding;

We are confident that the state of affairs projected by respondent [that defendants will be questioned at gunpoint during traffic stops to evade Miranda] will not come to pass. It is settled that the safeguards prescribed in Miranda become applicable as soon as a suspect's freedom of action is curtailed to a "degree associated with formal arrest....... If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him in "custody" for practical purposed he will be entitled to the full panoply of protections described by Miranda. See Oregon v. Mathiason 429 US 492, 495, 97 S.Ct. 71 1, 7149 50 L.Ed 2d 714 (1977)

Berkemer, sul2ra 468 U.S. at 440, 104 S.Ct. at 3150. Thus Berkemeyer establishes that while Miranda warnings are not required for routine stops, that once weapons are drawn or physical restraint imposed that Miranda warnings are required.

Under the above law the detention of Mr. xxxxxxxxx went well beyond a routine traffic stop for brief questions or a ticket. Once Officer Kirkley drew his weapon and ordered Mr. xxxxxxxxx to put his hands on the wheel there was nothing routine about the stop and the interrogation as to his belly pack occurred while Mr. xxxxxxxxx was being physically restrained by Officer Kirkley. This is exactly the type of case that Berkemeyer distinguished from a "routine stop" and exactly the type of custodial stop that requires Miranda warnings under Berkemeyer.

Moreover, it is undisputed that in addition to the above custodial conduct by Officer Kirkley, Mr. xxxxxxxxx was formally placed under arrest and handcuffed before Officer Kirkley asked him if he had a permit for the gun and whether the packets in his jacket contained drugs or needles. This was undisputably custodial interrogation and Mr. xxxxxxxxx's responses without Miranda warnings must also be suppressed.

Hence all statements by Mr. xxxxxxxxx must be suppressed. This includes Mr. xxxxxxxxx's statement that the belly pack contained a gun, the statement that he had no permit and any statements regarding drugs. Officer Kirkley only seized the gun and arrested Mr. xxxxxxxxx and seized drugs after he obtained these unlawful responses. As a result all statements must be suppressed and all evidence seized due to the statements also suppressed.

4. THE ARREST FOR CCW WAS UNLAWFUL The arrest for carrying a concealed weapon, was based on Mr. xxxxxxxxx's statement that his belly pack contained a gun. Following the arrest for CCW Officer Kirkley opened the belly pack and seized the gun. The unlawful obtaining of Mr. xxxxxxxxx's statement that his belly pack contained a gun and that he did not have a permit absent Miranda warnings is discussed above, and his arrest for CCW was the direct fruit of these unlawful statements.

However in the alternative, even with these unlawful statements, Officer Kirkley still did not have probable cause to arrest Mr. xxxxxxxxx or to seize his weapon at the time he did so. Under Alaska law it is not a crime to carry a concealed weapon if a person has a permit to do so. AS 1 1.61.220.

Inconsistent with the law, Officer Kirkley arrested Mr. xxxxxxxxx as soon as he discovered the gun and before he determined whether Mr. xxxxxxxxx had a permit to conceal it. Officer Kirkley did not ask about or learn whether Mr. xxxxxxxxx had a permit to carry a concealed weapon until after he arrested Mr. xxxxxxxxx for CCW and until after he searched the fanny pack and seized the gun.

Thus, Officer Kirkley did not have probable cause to arrest Mr. xxxxxxxxx or to seize the gun before he determined Mr. xxxxxxxxx had no permit to carry a concealed weapon and all fruits following the unlawful arrest must be suppressed.

5. THE WARRANTLESS SEIZURE &

OPENING OF ENVELOPES WAS UNLAWFUL

Even assuming arguendo that Officer Kirkley could remove Mr. xxxxxxxxx from the car and frisk him there were no grounds to seize and open the envelopes containing drugs. Minnesota v. Dickerson II 3 S. Ct. 213 0 (1993).

When Officer Kirkley frisked Mr. xxxxxxxxx, the small envelopes and larger bundle in his coat were soft and not shape the of a weapon. There was no possibility these packets contained weapons. Officer Kirkley thus had no grounds to remove them from the jacket. Once Officer Kirkley removed the packets he could see they were not weapons and there were no grounds to opening them without a warrant.

In Minnesota v. Dickerson I 1 3 S. Ct. 213 0, (1993) the Supreme Court required suppression of drugs improperly seized during a frisk, since the Officer could tell from the frisk that items seized were not weapons. The Supreme Court held;

.... Here the officer's continued exploration of respondent's pocket after having concluded that it contained no weapon was unrelated to the "sole justification of the search" [under Terry] ... It therefor amounted to the sort of evidentiary search that Terry expressly refused to authorize ... and that we have condemned in subsequent cases.Id at 2138-2139 Thus both the seizure and opening of all envelopes exceeded the limited scope of a frisk under Terry and the drugs must be suppressed.

6. THE DETENTION, REMOVAL, FRISK & CUSTODIAL

INTERROGATION VIOLATED STRICTER ALASKA STATE LAW

Suppression is required under federal law, alternatively, suppression is required under Alaska's Constitution which grants added protection for stops, frisks and interrogations, since this case involved state officers.

The Ninth Circuit, along with other circuits now generally applies federal and not state law in federal cases even if only state police are involved. U.S. v. ChavezVernaza 844 F.2d 1368 (9th Cir. 1987); U.S. v. Brady, 993 F.2d 177 at 179 (9th Cir 1993).

An obvious exception exists where federal law relies on or refers to state law. U.S. v. Butz 982 F.2d 1378 (9" Cir. 1993); U.S. v. Wanless, 882 F. 2d 1459 (9th Cir 1989); U.S. v. Mota 982 F.2d 1384 (9^th Cir. 1993); Pierce v. Multnomah County, Or.,76 F.3rd 1032 (9th Cir. 1996).

In U.S. v. Butz, supra, the Ninth Circuit recently joined other circuits in holding federal courts must apply state law to wiretaps since the federal wiretap statute permitted taps only in compliance with state and federal laws. Id at 1382

In U.S. v. Wanless, supra the Ninth Circuit held federal courts were required to look to state laws to determine the validity of a state inventory search since federal cases required that inventory searches be conducted in accordance with state or local law. Id at 1464.

More recently the 9th Circuit in U.S. v. Mota, supra held federal courts must apply state law to review state arrests and searches. In Mota, two brothers were arrested by state police for selling corn from a cart without a license. When state police searched them they found 40 counterfeit bills and later obtained confessions. When the brothers were charged in federal court with counterfeiting, they moved to suppress based on state law. While the arrest, search and confessions complied with federal law, a California statute classified the license offense as an infraction and allowed police to only issue summons and did not permit arrests. The 9th Circuit held that the federal court had to apply to the more restrictive California law, and heed the arrest illegal holding;

Similarly whether an officer is authorized to make an arrest will ordinarily depend in the first instance on state law. Michigan v DeFillippo 443 U.S. 31, 36,99 S. Ct. 2627, 2631, 61 L.Ed. 343 (1979). .... In United States v Di Re 332 U.S. 581, 68 U.S. 222, 92 L.Ed 2d 210 (1948) for example the Supreme Court reversed a conviction based on evidence seized during a search incident to arrest. The Court held that the search incident to arrest was unlawful since the arresting officers had no authority to arrest under state law .... In Welsh v. Wisconsin 466 U.S. 7401 104 S.Ct. 2091, 80 L.Ed 2d 732 (1984) for instance the Court addressed the circumstances under which the Fourth Amendment prohibits police from making a warrantless arrest... The Court held that the reasonableness of such an arrest is to be determined in light of the state's assessment of the gravity of the offense justifying the arrest as expressed by the state's classification .... We similarly hold that in evaluating a custodial arrest executed by state officials, federal courts must determine the reasonableness of the arrest in reference to state law governing the arrest. U.S. v. Mota at 1387 - 1388.

This holding of Mota, supra was more recently re-affirmed by the Ninth Circuit in Pierce v. Multinomah County, Or. 76 F. 3d 1032, at 1038 (9^th Cir. 1996). Thus, Alaska law controls the legality of Officer Kirkley's detention, frisk, arrests and searches of Mr. xxxxxxxxx, to the extent that Alaska law provides added protections.

Article I section 14 and 22 of Alaska's Constitution grants broader protections to Alaskans then the 4' amendment in numerous areas. Article I section 22 of Alaska's Constitution creates a constitutional right to privacy not contained in the federal constitution. See Glass v. State 583 P.2d 872 (Ak. 1978)( added warrant requirement for wiretaps with single party consent); Daniel v. State 667 F.2d 783(9th Cir. 1982); State v. Jones 706 P.2d 317 (Ak. 1985); (1983);(rejection of totality of circumstance test in favor of more protective Aguilar-Spenelli test for hearsay tips.)

Particularly relevant to the instant case, the Alaska Constitution grants greater protections to Alaskans than the fourth amendment regarding Terry stops and frisks. Hays v. State 850 P.2d 651 (Ak App. 1993); Mix v. State 893 P.2d 1270 (Ak. App 1995); Ozhuwan v. State 786 P.2d 918 (Ak. App 1990); Coleman v. State 553 P.2d 40 (Ak 1976); Ebona v. State 577 P.2d 698 (1978); Ozenna v. State 619 P.2d 477 (Ak. App 1970).

The Alaska Supreme and Appeals Courts have consistently held that under Alaska's Constitution, Te stops are permitted only if police suspect "... imminent public danger exists or serious harm to persons or property has recently occurred ..." and that Terry stops are permitted in Alaska only where the stop is required "as a matter of practical necessity." Coleman. supra 43, Ebona, supra at 700. Ozenna, supra, 479, Ozhuwan sul2ra 920-92 1.

Thus under unlike federal law and the fourth amendment, Terry stops under the Alaska Constitution are not permitted for minor crimes that do not pose imminent public danger or even for past minor crimes that did not cause serious harm. In Ozenna, supra, the Alaska Supreme Court explained the distinction between federal and state Terry standards as follows;

However we have stated in Coleman that the Terry rule would apply as a matter of Alaska constitutional law only "when the police officer has a reasonable suspicion that imminent public danger exists or serious harm to persons or property has recently occurred ... In imposing this limitation we noted in n. 17 of the Coleman opinion our agreement with the view expressed by Justice Brennan's dissent in Adams v. Williams ... Justice Brennen quoting Judge Friendly distinguished possessory offenses from serious crimes and stated that Terry should only apply to the latter .... [Terry] was meant for he serious cases of imminent danger or of harm recently perpetrated to persons or property, no to the conventional ones of possessory offenses.

Ozenna v. State, sul2ra at 479

In Ozhuwan v. State 786 P.2d 918 (Ak. App 1990) the Alaska Appeals Court re-affirmed this more restrictive version of Terry to find an investigative stop improper in a case similar to Mr. xxxxxxxxx's. In Ozhuwan, an officer saw two cars in a camp ground with their lights out late at night. While lawfully parked, the officer found this suspicious since she knew minors frequently parked there to consume alcohol. Id at 920 The officer activated lights, shined his flashlight through the window of Ozhuwan's car, and saw Ozhuwan grab something. The officer ordered Ozhuwan to drop the object and when she complied saw cocaine, seized it and arrested Ozhuwan.

The Alaska Appeals Court in Ozhuwan held that a driver of a vehicle is "seized" whenever police conduct "...would lead a reasonable person to believe that the person was not free to leave ..." Id at 920-921 The Court in Ozhuwan found the above investigative stop unlawful under Alaska's more protective Constitution holding that "unusual conduct" even when coupled with an area reputed for criminal activity was not reasonable grounds since this did not establish "... articulable facts creating a reasonable suspicion that imminent public danger existed or that serous harm to persons or property had recently occurred." Id at 921 Of particular relevance to the instant case the Court in Ozhuwan noted that "unusual conduct" of a parked car- was not reasonable grounds to denote criminal conduct;

Similarly the mere fact that an occurrence is unusual will not support a reasonable suspicion unless the occurrence is somehow indicative of criminality ... although Pickerel may well have been justified in believing the campground was frequented by minors seeking a place to consume alcohol he had no reason to believe all people in the campground at night were minors looking for a place to drink and his observation of the two parked cars provided no particularize information to support the conclusion that their occupants might be engaged in criminal activity ... there is nothing to indicate that the unusual location of the cars ... tended in any way to support an inference of criminality as opposed to innocent conduct .... To find a reasonable suspicion of criminality under the circumstances of this case would in effect allow the police the authority to conduct investigative stops in all cases involving cars lawfully parked at night in any "high crime area" or other unusual locations. Under the circumstances we are unable to conclude that an investigative stop was required "as a matter of practical necessity."Ozhuwan. supra at 92 1.

Under Alaska law, Officer Kirkley did not have reasonable grounds to detain or frisk Mr. xxxxxxxxx since there was no "imminent public danger." Under Alaska law even if Officer Kirkley believed napping for hours in a business lot was "unusual" this type of "unusual conduct" did not denote criminal conduct and more critically did not supply "... articulable facts creating a reasonable suspicion that imminent public danger existed."

The language in Ozhuwan, also is relevant to refute Officer Kirkley's sole rationale for frisking the belly pack. Similar to the instant case, the officer in Ozhuwan relied on a hypothetical possibility that kids were drinking in the parked cars since the officer knew this was common at that location. The Alaska Appeals court however held that under Alaska's Constitution this "hypothetical possibility" even when coupled with unusual conduct was not sufficient since it did not separate the many innocent people who also lawfully parked at night. Similar to Ozhuwan, the fact that a few people may carry guns in belly packs does not create articulable reasonable grounds to conclude that everyone has a gun in his belly pack.

In Hays v. State 850 P.2d 651 the requirement of 'practical necessity" is illustrated as a second critical distinction between state and federal law. In Hays, an officer received a dispatch of theft of gas from a 7-11 where a driver left without paying. Fifteen minutes later the officer stopped a truck of the same type and color described but after the stop noticed the occupants and license number were not an exact match. The officer thus briefly asked Hays, if he had come from the 7-11 , asked for ID and discovered an expired license. The Alaska Appeals Court reversed the conviction for driving with an expired license holding that even this minimal stop was improper under Alaska's Constitution, since there was no "imminent threat to public safety" Id at 653 and no "practical necessity" since the officer failed to take the less intrusive course of following the truck long enough to determine if the occupants and license number matched the dispatch description, before making the stop holding;

There is no indication in the record that anything prevented [officer] Santora from simply following Hays' truck on the highway to determine the number of occupants and if this license number matched ... Had Santora done this instead of stopping the truck as soon as she saw it, she would presumably have realized that the variance between Hays' truck and the reported description made it unreasonable to suspect Hays of the gas theft ... When we review investigative stops "the fundamental inquiry in each case is whether 'a prompt investigation was required ... as a matter of practical necessity.' ...In this case the record discloses no practical necessity for Santora's immediate stop of the Hays' vehicle.

Id at 653 Under the above Alaska requirement of "practical necessity" Officer Kirkley also did not come upon an imminent public danger that required an immediate response and thus nothing prevented him from taking the less intrusive approaches of talking to the person who called dispatch for details, observing Mr. Kirkley for a period or at least asking Mr. xxxxxxxxx what he was doing. Had Officer Kirkley permitted Mr. xxxxxxxxx to explain he was waiting for his landlord, this would have been a perfectly reasonable response which would have obviated any need to detain or frisk him. If Officer Kirkley doubted Mr. xxxxxxxxx's explanation, no imminent public danger prevented him from calling the landlord to corroborate his explanation, again obviating any need to detain or frisk Mr. xxxxxxxxx.

Thus under Alaska's Constitution and the above Alaska law the lack of any "imminent public danger" and the absence of any "practical necessity" stand as grounds to suppress in addition to the federal arguments made above.

In Mix v. State, 893 P.2d 1270 (Ak App 1995) a third critical distinction is illustrated between federal and Alaska State law, since under Alaska's Constitution, the hearsay tip described by dispatch could not support reasonable grounds. The Alaska Supreme Court has rejected the more liberal "totality of the circumstance" test of Illinois v. Gates 462 U.S. 213 and still requires that tips establish a basis for reliable and first hand information under the older Aguilar-Spinelli test. State v. Jones 706 P.2d 317 (Ak.1985); State v. Mix, supra.

In Mix an officer received notice from dispatch that someone had reported a drunk driver. The caller gave the location and described the car and license number. Only 30 seconds later the officer saw the exact car described at the described location and stopped and arrested the driver for drunk driving. The Alaska Appeals Court in Mix found the stop unlawful since under Alaska's constitution, the hearsay tip stated no basis for reliability or first hand information, holding;

In this case [Officer] Hoffman had absolutely no information about the circumstances leading to the "locate" broadcast by the AST dispatcher. He confirmed the presence of the car in its reported location. Standing alone however this provided him with no reasonable basis to suspect the driver was intoxicated ... In this case in which the officer making the stop had no indication that the "locate" was based on reliable firsthand information ... we cannot find that the stop was supported by a reasonable suspicion of imminent public danger....Mix, supra at 1272-273

In the instant case the dispatch report indicated someone had reported a person nodding off in his car since early that morning. Aside from the fact that this does not denote criminal conduct, the dispatch did not indicate that the caller was basing the report on first hand observation or that the caller was reliable. The caller could have been passing on hearsay, or could have speculated the person had been there all morning and not seen the person leave and return. Under Alaska law this hearsay tip can not justify the detention or frisk of Mr. xxxxxxxxx.

Thus while arguments in the first part of this memo establish the dispatch tip was inadequate even under federal law since it was vague, uncorroborated and since napping in a lawfully parked car does not denote criminal conduct, it is thus clear that under the Alaska Constitution there are added grounds why Officer Kirkley could not rely on the hearsay tip to dispatch as grounds to detain or frisk Mr. xxxxxxxxx.

Finally, a potential distinction between Federal and Alaska state law applies to the Miranda arguments made above. In several cases, the Alaska Appeals Court has adopted the cautionary language of Berkemer v.McCarty, 468U.S.420,435-42,104 S.Ct. 3138, 3147-52, 82 L.Ed.2d 317 (1984) which as discussed above permits brief questioning during routine traffic stops, but would require Miranda warnings once the custodial level escalated beyond brief and routine questions.

In Blake v. State 763 P.2d 511,515 (Ak. App 1988) and Silvemail v. State 777 P2d 1169, 1177-1179 (Ak.App. 1989) the Alaska Appeals Court adopted the reasoning of Berkemer only after noting it narrowly interpreted Berkemer to require Miranda warnings once the level of police conduct went beyond a routine stop. As the Alaska Appeals Court has warned in adopting the Berkemer;

In reaching this conclusion, however, it is important to stress a limitation suggested in Berkemer. If a motorist is detained under circumstances substantially more coercive than the typical traffic stop, and that coercion actually impairs the free exercise of the privilege against self-incrimination, Miranda warnings would be required. Berkemer. 468 U.S. at 440, 104 S.Ct. at 3150.

Blake v. State, supra at 515. Under both federal and Alaska State law under Berkemer, Mr. xxxxxxxxx was in custody and should have been given Miranda warnings once Officer Kirkley ordered ID, drew his gun, ordered him to put his hands on the wheel, ordered him to turn off his engine so he could not leave, ordered to stand at the back of the car with his hands behind his head and physically restrained him as he was questioned him.

In sum, the above Alaska State law stands as added grounds for finding the detention, frisk and statements of Mr. xxxxxxxxx as to the gun or drugs to be unlawful and the above Alaska law stands as additional grounds to require the suppression of all evidence and statements and their fruits.

III. CONCLUSION

The detention of Mr. xxxxxxxxx was unlawful. Officer Kirkley had no grounds to demand ID or open his car door. Napping in a lawfully parked car is not criminal. Officer Kirkley articulated no facts suggesting Mr. xxxxxxxxx was under the influence. While he seemed lethargic at first once he awoke he responded quickly to all orders.

Alternatively, even if the initial detention were permissible, once Officer Kirkley discovered a leather holder contained only a tool, there were no reasonable grounds to remove Mr. xxxxxxxxx from the car and frisk his belly pack. Officer Kirkley articulated no facts suggesting Mr. xxxxxxxxx was armed. He was calm and cooperative and there was nothing unusual about his belly pack. The hypothetical possibility that all belly packs might contain guns is not reasonable grounds.

Alternatively, Officer Kirkley improperly questioned Mr. xxxxxxxxx as to his belly pack and gun without Miranda warnings. At the time Mr. xxxxxxxxx was in custody since Officer Kirkley had ordered him to produce ID, opened his door, ordered him to turn off his engine to prevent his leaving, drawn his gun, ordered him to put his hands on the wheel, ordered to stand at behind the car with his hands behind his head and physically restrained him as he frisked his belly pack. The questions as to the permit and drugs following the formal arrest, were undisputedly custodial and also unlawful.

Alternatively the arrest for CCW was unlawful since at the time of arrest, Officer Kirkley did not know if Mr. xxxxxxxxx had a permit and the seizure and opening of the packets in Mr. xxxxxxxxx's jacket without a warrant was unlawful since Officer Kirkley could feel they contained no weapons.

Finally recent Ninth Circuit law requires that this court apply both federal and the more protective Alaska State law to Officer Kirkley's conduct. In addition to federal arguments, this court should thus apply Alaska's more restrictive requirements of "imminent public danger" and "practical necessity" to the detention and risk of Mr. xxxxxxxxx and must apply Alaska's more restrictive law as to the hearsay value of the dispatch report and Alaska's stringent requirement that Miranda warnings be given for any questions beyond a routine traffic stop.

Based on all the arguments made above, it is submitted that Officer Kirkley's conduct was unlawful under both Federal Constitutions and Alaska's more protective Constitution. But for the above unlawful conduct by Officer Kirkley, there would have been no grounds to frisk, search or arrest Mr. xxxxxxxxx. Thus all evidence seized and all statements made from Mr. xxxxxxxxx or his car must be suppressed.

Respectfully submitted

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