*1 g74 assumption
Whether fundamental not, failed or does not claim she did Sherrie Indeed, her not make a deliberate choice. affidavit would seem to make it clear that very her choice was deliberate. filed Sherrie’s modification motion was after the decree of dissolution months entered, remarried, year after she eight after she last lived and six to months family residence. The mo- in the former specific aspect modify tion seeks rights par- distribution respecting finality ties. The rule judgments ought enforced cases such this, long parties as have so conduct- where agreements ed their affairs under terms of voluntarily excep- into. This is no entered
tional case. It is bad law.
If the decided on the record case us, I conclude that the trial before granting court abused its discretion any relief. The correct resolution Sherrie is to remand for a determination of the facts. BROWN, Appellant, L.
Charles Alaska, Appellee. STATE of No. 7358. Appeals Court of of Alaska. June 1984. *2 Defender, Orlansky,
Susan Asst. Public Defender, Fabe, and Dana Public Anchor- age, appellant. Maki, Gen., Atty.
Richard W. Asst. An- Gorsuch, chorage, Atty. and Norman C. Gen., Juneau, appellee. BRYNER, C.J.,
Before and COATS and SINGLETON, JJ.
OPINION
SINGLETON, Judge. plea a no
Charles Brown entered
contest
charging him
theft
to an indictment
degree,
by receiving in the second
a class C
11.46.130(a)(1);
felony. AS
AS 11.46.-
190(a).
appeals
He
reservation of
under
right
conformity
v. Anchor
with Oveson
(Alaska 1978),
age,
Brown contends denying suppress evidence his motion to hotel seized from his and from his room. affirm. We FACTS STATEMENT OF March of Anchorage Department went to the Police investigate key had a to room 8. Inlet Inn to a “voucher fraud.” Brown Stevens also Apparently, people using verify were vouchers testified that he wanted to pay identity, As with false names to for rooms. and to obtain further information talking Stevens was with hotel administra- up about the television. Brown walked tors, Charles Brown he saw the door room 8 with Stevens portable television set. Stevens said he opened the behind him. Brown door and *3 thought interesting” it was “kind of that a him into the Stevens followed room. person in portable would have a television computer equipment Stevens noticed already in a hotel that had a television each stacked on the floor. He testified that he room. thought person expen- it a was odd for Stevens asked Brown if the television appearing computer equipment sive to be him, belonged replied to and Brown that it using cheap stay a voucher hotel. a was not his. asked Brown where Stevens The fact that Officer Stevens had come from, replied it came and Brown that a computer equipment across some was re- gave he it to him. man did not know Ste- layed Anchorage Kasper, Police Officer person. description vens asked for a of this investigating nearby burglary who was a gotten the television Brown said had computer equipment. a theft of from a white man in room 122. The officer standing Stevens and Brown were identification, then asked Brown for hallway outside room 8 when Officer Kas- any. Brown said he did not have per Kasper arrived. asked where the proceeded to frisk Brown “because of the equipment produced key, was. Brown questions gave that he answers of me opened the door to room 8 and motioned didn’t relieve ... fear.” [me] Kasper —of for him to come in. had impression just coopera- that Brown was “a originally Brown stated that his name computer tive citizen that had found the Black. James When the officer con- equipment.” Kasper pri- Stevens informed ducted the search he discovered a vately just of what had occurred. Both pull wallet. He asked Brown to out the officers then reentered advised wallet and show some identification. As rights, they Brown of his and asked if it, flipping through thorough conduct more could search. security noticed a social card with the name was told that he had a Brown not to “Charles Brown” on it. At first Brown signed the room searched. claimed that Charles Brown was his broth- name, form. pointed er’s when the out waiver but officer is unusual for brothers to have computer equipment and television names, different last the defendant admit- recently had been stolen. After he was ted that he was Charles Brown. by receiving indicted for theft in the second identification, picture
Stevens asked for degree, suppress moved the evi- which Brown said he did not have. Stevens computer dence of the television paid then asked Brown how he had for his equipment grounds on the that he was ar- room. Stevens had noticed the names probable rested without cause and that his Black” “James and “Charles Brown” on his illegally Judge room was Moody searched. replied list of voucher frauds. Brown denied the motion. bought
he had his voucher for for $25 THE SEIZURE OF BROWN nights possibly seven from a man named staying “Mike” room 122. In Howard v. (Alaska App.1983), we said:
Stevens then asked Brown where he was
essentially
There
staying
replied
types
are
three
that he was
staying
police
private
in room
that his clothes were
contact between the
but
said, “Well,
go
room 122. Stevens
let’s
citizens which have received attention in
reported
(1)
to room
generalized
8.” Stevens testified that he made
cases:
A
suggestion
quest
information,
because he
to see if
example, ques-
wanted
uniformed
officer and a
during
between a
put
an on-the-
bystanders
tions
(2) An
a crime.
investigation
apparently
suspect
scene
was so
coercive
by articula-
investigatory stop, supported
found. Rather
seizure should be
person has commit-
suspicion that a
ble
question
is whether the
concluded that
(3)
crime.
to commit a
ted or is about
which “a
officer’s behavior
conduct
arrest,
upon facts
Finally, an
based
person
threaten-
reasonable
‘would view as
pru-
would lead
circumstances which
ing
coming
from anoth-
or offensive even
”
that a crime had
dent
to believe
Id.
(citing
private
er
citizen.’
person ar-
and that
been committed
9.2, at 53-54
Search & Seizure
it.
rested had committed
(1978)).
Brown for
Officer Stevens asked
general ques-
the course of
at the scene is not
inquiry
An
of someone
tioning
had a
about the television. Stevens
seizure.
necessarily
fourth amendment
ques-
right to be where he was and to ask
are
investigatory stop and an arrest
An
going on around him.
tions about what was
*4
amendment seizures.
fourth
[Citations
State,
(Alaska
v.
G.R.
195
omitted.]
grounds,
rev’d on other
War-
App.1981),
seized when
argues
that
was
ing
(Alaska 1983).
v.
We need not
whether investiga-
reject
decide
to
claim
that Stevens could
receiving
concealing
tions of
suspicion
stolen
not have had an articulable
that a
property,
abstract,
involving
all
crime
property
serious harm to
justify
investigative stop
instances
un-
had been committed. While Stevens did
upon
suspicion
burglary
place,
had taken
that he has
not know that a
commit-
suspicion
ted,
he had reasonable
to believe that
committing,
or was about
to
stolen and that
it was
the television was
type
commit a
of crime for which the
burglary.
stolen in a
Televisions do not
armed,
likely
offender would
whether
shoplifting
other
lend themselves
or
cas-
weapon
actually
would be used to
reasonably
ual theft. A
officer could
crime,
escape
commit
if
any
was taken
believe that
stolen television
awry,
protection
scheme went
for
during
burglary.
We therefore conclude
against
the victim or others involved.
suspicion
had a reasonable
suspected
This includes such
offenses as
engaged in recent
that Brown had
criminal
robbery, burglary,
rape, assault with
danger
proper-
conduct
serious
weapons,
dealing
large quantities
ty
place.
at the
the seizure took
time
of narcotics.
dispositive
This conclusion is not
Search &
3 W.
Seizure
9.4
argument,
for as we
of Brown’s
(footnotes omitted).
noted in Howard v.
78,
(1968).
versation and leave the officer’s any subsequent fendant to the ence, Brown could also have refused to findings consent would be tainted. Similar accompany the officer to Room 8 or once required suppres- in this case would have open there could have refused to sion of the evidence found in room 8. testimony door to the room. There no Hav- is evidence, however, ing reviewed the which would indicate that the officer re- we say quested open cannot that the defendant the door requested reaching contrary entry into the room. mistaken conclusion voluntarily denying suppress. the motion to Tem- accompanied alone, custody, standing key, porary does not removed the opened subsequent the door invalidate consent to a and entered the room Search & Sei- search. 2 W. with the officer behind him. § 8.2(b) zure at 643. Brown was not ar- addition, Judge Moody found that handcuffed, gunpoint, rested at or sur- voluntarily permitted Officer Kas- by police rounded officers. He dealt with a per to enter the room after Stevens indi- single appears officer in what to have been computer equipment cated that there was low-key conversation and then returned Finally, Judge Moody it. noted that the high- to room 8 with Officer It Stevens. is officers told Brown that he need not con- ly significant that Officer Stevens never being given sent to a search and that after authority claimed to enter room 8 nor did this information he executed a written con- specifically he ask to enter the room. In- sent to search. stead, merely followed Brown when expec Brown had a reasonable him through Brown walked ahead of privacy protect tation of in his hotel room At express any door. no time did Brown ed the Fourth Amendment United objection, verbally through either non- See Robinson v. States Constitution. conduct, entry verbal to Stevens’ into the 142-43 appar- room. Brown was a mature man in legally could not enter the room possession ent of his faculties. There is no without a search warrant unless there was suggestion mentally that he is or emotion- applicable exception to the warrant re ally ill or that he was under the influence quirement. Judge Moody found that drugs. of alcohol or Under these circum- sup consented. If this stances, Judge Moody’s finding we affirm ported by evidence, substantial then the that Brown consented entering to Stevens entry was consistent with the fourth Guidry the room. consent, amendment. order to establish (Alaska 1983); Robinson v. carry showing the state must the burden of *7 State, 141, 578 P.2d 144 Cf. “unequivocal, that Brown’s consent was Chrisman, Washington 1, 7, 455 U.S. intelligently given, and not the 812, 817, 778, 102 S.Ct. 70 L.Ed.2d product of duress or coercion.” Pierce v. (1982) (it is not for a unreasonable State, 211, (Alaska App.1981) 627 P.2d 216 accompany lawfully officer to arrested State, Phillips v. (quoting 816, 625 P.2d purpose individual into his room for the (Alaska 1980)). assessing 817 whether a obtaining identification). generally voluntary, surrounding consent was all the Search and Seizure 8.2 circumstances must be considered. (1978). Bustamonte, Schneckloth v. 218, judgment superior The 2041, 2049, AFFIRMED. Since ruled favor, state’s the evidence must be con BRYNER, Judge, dissenting. Chief light strued most favorable to the Gray state. 596 P.2d I dissent. case, wallet,
The evidence when con- identification from his light most go sidered favorable to complied told to to his room. He state, stopped by indicates that Brown was nothing the order. There is in the record Anchorage Police Officer Stevens to indicate that reasonably Brown could Department because he was longer have believed that was no under hallway portable television in the of his support detention. Nor does the record weapons hotel. Brown was frisked for given inference that Brown was a realistic identify ordered to himself. The state con- choice when Officer Stevens told him to custody cedes that Brown was reduced “go to room 8.” point. requiring at this After Brown to obligation This court’s to construe the identification, produce light evidence in the most favorable to the questioned him about the location of his prevailing party should not serve as a basis paid room and the manner in which he had approval for automatic judge’s of a trial for it. Brown was not advised of his Here, factual determinations. the trial rights. When Brown indicated that he was court’s of a consent to search is told, “Well, staying in room he was let’s unsupported by the evidence and is there- go complied. there.” Brown He unlocked fore erroneous. The trial court’s the door to his room and was followed conclusion that Brown was free to disre- inside Officer Stevens. gard “go the command to to room 8” sim- justify In order to Officer Stevens’s war- ply be cannot reconciled with the state’s entry rantless state subjected concession that Brown had been required prove, by preponderance stop. to a custodial On the factual record evidence, that Brown’s consent was majority’s willingness in this “unequivocal, specific intelligently giv- accept findings the trial court’s seems to en, product and not the of duress or coer- requirement stand the consent on its head. Phillips cion.” majority’s The decision effect holds that (Alaska 1980); Pierce v. any person subjected by police to custodial (Alaska App.1981). Certainly, detention must risk forfeiture of fourth individual’s consent to a warrantless search rights amendment if he does not resist or expressly given may need not be expressly object potentially unlawful or- totality inferred from the circum- ders. surrounding stances the search. Yet I see “unequivo- no circumstances from which an
cal, specific intelligent” may consent inferred in this case. stop and frisk to which Brown was
subjected unquestionably custodial in immediately being nature. Almost after detained, produce frisked and ordered to