Free v. State
614 P.2d 1374
Alaska
1980
Check Treatment

*1 for Pioneer on issue of its

indemnity against any Moduline for dam- FREE, Appellant, James ages that Pioneer suffer as a result litigation. We of held: Alaska, Appellee. STATE of

[Wjhere is required, indemnification given proper indemnitor has been no- No. 4056. pending tice litigation and an ade- quate opportunity duty to undertake its Supreme Court of Alaska. defend, the indemnitee is entitled Aug. 1980. recover full fees attorney’s costs and the expenses of its successful defense of giving action rise to the claim for

indemnity. (footnote omitted).31

Id. at 1067

Here Moses contends that he has not been opportunity against an

given to defend an

indemnity claim. He states that others hierarchy Corpora-

within the of the Aleut

tion be at fault for the invalid finan- soliciting

cial proxies. contents of the letter

Regardless of the trial or our court’s views being

as to the likelihood Moses success- claim,

ful in indemnity the defense of an day

is entitled to court. It was error

to award Aleut indemnification its costs brought by

and fees suit defense

shareholders. conclusion, part we affirm in

court’s award of costs and fees in favor of against

Aleut Moses for the shareholders’

costs against and fees We assessed Aleut.32

hold, however, court erred in Moses;

awarding full against fees in includ

ing in the award the Attorneys fees of Taylor;

Smith and and in ordering Moses to

indemnify Aleut for its costs and fees in

curred in defense the action. part,

AFFIRMED in REVERSED in

part, and REMANDED. MATTHEWS,

CONNER and JJ. Manson-Osberg 31. See also Attorney Co. v. dered DuBrock. When counsel (Alaska 1976), involving express fees, P.2d request attorney an other than on based indemnity clause. 82(a)(1), schedule set forth in Rule accurate expended records of the hours scription and a brief de- court, superior remand, 32. The should re- of the services reflected those quire pay Moses to Aleut the shareholders’ hours should be submitted. against and, costs assessed Aleut under Rule 82, a reasonable amount for the services reñ- *2 Asst. Public De- Paquette,

Deborah A. Defender, fender, Shortell, Public Brian Anchorage, appellant. Jenicek, Scukanec, Asst. A. Monica

John Balfe, Atty., Dist. Joseph D. Attys., Dist. Gross, Gen., Atty. M. Anchorage, Avrum Juneau, appellee. RABINOWITZ, J„C. and CON-

Before NOR, BOOCHEVER, and MAT- BURKE THEWS, JJ. money

OPINION told him he needed and intended to commit an robbery BURKE, Justice. View Mountain area. The native male also sell, said he had some appeals finding James Free from the gave informant Feichtinger the location of superior court the warrantless *3 a house in guns Mountain View where the permissi- search of his was valid as a were to be The sold.1 address was close to investigative stop ble and frisk under Qwik store, Stop grocery one of two busi- U.S. 88 S.Ct. L.Ed.2d open ness establishments known to remain (1968). We affirm. night logical late at in that area and a suspect James Free was a in a burglary target robbery. for an armed He contacted early morning which occurred in the hours Marrs with this information and told him Among of December 1977. the items it might something that have to do with the handguns. Trooper taken were two Mi- Free burglary investigation. investigated burglary, chael Marrs the night, Feichtinger That and several other M.C., that afternoon interviewed a seven- Qwik troopers Stop using staked out the year teen old Alaska native male whom the patrol two unmarked cars.2 car parked One of the suspected having owner residence store; other, Feichting- near the the which any committed the crime. M.C. denied in- occupied, parked away er several blocks incident, volvement in the and accused an- m., from it. At approximately 1:00 a. native, Free, other Alaska James of the Feichtinger four leave observed individuals burglary. day, The spoke briefly next M.C. Qwik Stop, split house near the into with Marrs Eric Feichtinger, another pairs. pair two One went in the direction trooper Feichtinger who knew James Free. store, troopers patrol and the in the has been help asked Marrs to locate car nearest the store followed them. The day, Free. Later that M.C. admitted to pair second walked in the direction of Marrs that he was involved in the burglary vehicle, Feichtinger’s but turned off into a with Free. He trooper also told the that side actually reaching pa- street before the attempted Free had to contact him to sell trol car. Feichtinger partner and his decid- guns burglary, taken in the and that if investigators ed to assist the by going to get he could touch with he Qwik but, so, Stop, doing before drove get be able to them back. At the conclu- past pair the second to see “if in fact either interview, sion of this M.C. asked to be of these two individuals were taken to the Mountain View area of An- troopers James Free.” past, As the drove chorage where he apparently thought he Feichtinger recognized one the pair as could contact James Free. other, contact, Free. upon turned out Desiring to be M.C. question to Free re- Sometime between p. 11:00 and 11:30 m. garding troopers exited night, that same Trooper Feichtinger re- vehicle, their identified themselves as ceived a call from a confidential informant officers, stop, the two per- ordered to who, Feichtinger testified, later had fur- pat formed a persons.3 brief search of their nished reliable prior information on three occasions. The Feichtinger informant told Handguns plastic bags sealed inside were that a native approached male had him and found on both Free Although and M.C. Trooper Feichtinger 1. The informant apparently sold, told that were the officers guns, individual wanted to sell two a .22 decided not to stake it out. revolver, calibre and a .38 or .357 revolver. 3.Trooper Feichtinger gave following expla- These were of the same calibre as those taken why approached burglary. nation for he Free as he did. up Troop- I went to him because I knew that 2. The other question establishment known to remain er Marrs wanted to him reference a open gas station, late burglary. at was a probably but since it And that he would was some distance burglary. Trooper from the location where the arrested for the Marrs (1968). pled Free then nolo unloaded, were in L.Ed.2d 889 cartridges gun was Free’s charge and M.C. were burglary Both Free before bag with it. contendere to weapons carrying Kalamarides, concealed arrested for re- judge, Peter J. another trooper they would be taken and told Judge Lewis’s right appeal taining the regarding questioning headquarters issue. We ruling on subsequently were burglary. plea such a requirements established as those taken by Trooper Marrs identified Anchorage, 574 Municipality of in Oveson v. burglary. Both 16th December 1978), we (Alaska where said Free of his Feichtinger and Marrs informed “explicitly conditioned plea must be headquarters, whereup- rights” “Miranda appeal” reserved upon [the] to com- agreed to talk and confessed with the trial court’s stipulated have parties mitting with M.C. appeal the issues reserved approval case.” the entire Id. “dispositive are *4 indicted for subsequently Free was criteria. has met these Appellant 803 n. 4. dwelling in violation of burglary in a AS 1251 Cooksey v. also See Free filed a motion to dismiss 11.20.080.4 1974). (Alaska indictment, Rules pursuant to Criminal the upon his conten 6(q), 6(r), 26(g),5 and based appeal issue in this is The central confession that his arrest and later tion investigatory stop and frisk of whether search and illegal the result of an were rights against un James Free violated Lewis refused to dis Judge Eben seizure. guaran reasonable searches and seizures indictment, finding that the search miss the of the by the fourth amendment Unit teed acceptable under Ter person Free’s was of I, 14 ed and article 1868, § States Constitution6 Ohio, 1, 20 392 88 ry v. U.S. S.Ct. away probable explain charge, ble evidence will it had indicated to me that he had produced and I had order such evidence to be cause to arrest him. ... reason shall for that attorney may purpose may require prosecuting possibly be to believe that he because weapons Trooper subpoena An indict- Marrs had told me that 2 to witnesses. presentment I shall not be found nor a were taken in the and ment made grand juror upon suppos- a the statement of grand was aware . . . that Jim Free juror edly weapons. and exam- unless such is sworn had those I was also aware jury possibility grand find shall that there was an armed ined as a witness. The of robbery being taken when all the evidence committed in the Mt. View an indictment uncontradicted, by together, unexplained or if area that a native male . defendant, warrant a conviction of would provides: 4. AS 11.20.080 (r) Admissibility Evidence of Evidence. legally at trial admissible which would be Burglary dwelling person house. A who jury. grand In before the shall be admissible dwelling in- breaks and enters a house with however, may cases, appropriate witnesses it, having tent to commit a crime in or en- evi- presented admissible intent, to summarize dwelling be tered with that breaks will be avail- evidence if the admissible dangerous weapon dence able presented ling justification say house or is armed with in guilty punishable by imprisonment Hearsay be shall not evidence it, at trial. lawfully person in it is or assaults a compel- jury grand absent to upon of conviction is If hear- introduction. for its peniten- jury, grand presented to the evidence is tiary year than for not less than one nor more stated on the shall be However, for its use years. the reasons record. burglary is 10 if the com- nighttime, punishable mitted at prisonment it is im- 26(g) provides: Rule Evidence year for not less than one nor Illegally ille- Evidence Obtained. years. being is more than 15 If a human any pur- for gally not be used obtained shall dwelling burgla- within the at the time of the impeachment including of a witness. pose ry during nighttime daytime, pun- or it is by imprisonment less ishable one for not than States United of the fourth amendment 6.The year years. nor more than 20 provides: Constitution 6, (r) (q) Rule Alaska 5. Subsections people their secure in of the R.Crim.P., provide: effects, against houses, papers, persons, seizures, shall not (q) Sufficiency grand searches unreasonable of Evidence. When the issue, violated, but warrants shall and no jury be other availa- has reason to believe that necessary probable In information cause of the Alaska Constitution.7 1, 1868, simply shrug 20 L.Ed.2d his shoulders 392 U.S. 88 S.Ct. to arrest (1968), the United States a crime to occur or a criminal and allow upheld constitutionality escape. contrary, Terry recog- On the stop procedure stating that “a may good nizes that it the essence of appropriate circum- officer adopt work to an intermediate re- appropriate ap- stances and in an manner sponse. proach purposes investigat- Williams, 143, 145, 92 Adams v. ing possibly though criminal behavior even 1921, 1923, 32 L.Ed.2d 616-17 S.Ct. probable there is no to make an ar- cause (1972). investigatory stop of Free was rest.” Id. at 20 L.Ed.2d conclude response. such a We therefore so, doing at 906-07. the officer is enti- case, of this that under circumstances tled to steps protect take himself stop Free law- Trooper Feichtinger’s was performing weapons a limited search for ful. when he has reason to believe the fact that Given

person being investigated is armed and justified, the reasonableness of the presently dangerous. Id. at next be con search for must 1881, 20 L.Ed.2d at 908. allows a sidered. The fourth amendment a reasonable belief police officer who has We constitutionality sustained the dealing with whom he is that the individual investigatory stop procedure in our de *5 may dangerous to conduct a be armed and State, cisions in v. Ebona 577 P.2d 698 pro for his own limited search for (Alaska 1978), State, and v. Coleman 553 Williams, v. 407 at tection. Adams U.S. (Alaska 1976). In certain situa 617; 146, 1923, 92 at 32 L.Ed.2d at S.Ct. tions, e., “i. cases where the officer Ohio, 27, at 88 at Terry v. S.Ct. a suspicion has reasonable that imminent 1883, 20 L.Ed.2d at 909. The officer need public danger per exists or serious harm to “absolutely not be certain” that individ occurred,” property recently sons or has id. armed, probable ual is nor have cause to 46, temporary questioning at detentions for only safety him for that arrest a are allowed. We believe the instant case crime — may danger. or that in at of others be Id. presents such a situation. 27, 1883, 88 S.Ct. at 20 L.Ed.2d 909. The At stop, Trooper the time of the may officer’s reasonable belief be based on Feichtinger was well aware of the fact that personal his own observations or informa burglary a recently had been committed. party. tion from a reliable third Adams v. Furthermore, he Free was the knew that Williams, 92 407 U.S. at primary suspect investigation. in the In Adams, 32 In L.Ed.2d at 617. light of knowledge, Feichtinger when upheld and frisk of an indi past drove recog the two and individuals early vidual seated alone in a vehicle in the nized stopping one of them to be him morning high in a crime area. Like the in question regarding order to him the bur case, be instant the basis for officer’s glary procedure. was a reasonable lief that the individual would be armed and tip

The Fourth require dangerous Amendment does not was the of an informant. policeman a precise Trooper Feichtinger who lacks the level of The fact that had re- cause, upon probable affirmation, by supported people Oath or to be secure in their particularly describing persons, property, papers, houses and other effects, place persons against to be searched and the or unreasonable searches things seizures, to be seized. shall not be violated. No war- issue, cause, upon probable rants shall but I, 7. Article 14 of the Alaska § Constitution by affirmation, supported partic- oath or states: searched, ularly describing place persons things or to be seized. or that serious harm that recently a reliable informant that has tip ceived a from area, in that robbery might by particular per- an armed occur occurred was caused knowledge that coupled prior with his may stop person. son neighbor- in the same might James Free be 553 P.2d at 43. hood, in the planning to sell the taken majority stop justified finds the provided justification reasonable burglary. the recent occurrence of a At the might M.C. be for his belief that Free and stop, burglary days time of the was two Therefore, Free patdown armed.8 response old and the for an immediate need an unreasonable search.9 did not constitute had While I do not think that dissipated. justified stop, I burglary conclude conclusion, In since the actions of investigatory stop justified Trooper Feichtinger to the stan conformed public danger the imminent under test be- imposed by Terry dards v. U.S. of an possibility cause of the armed rob- (1968), and 20 L.Ed.2d 889 testified, bery. Trooper Feichtinger part (Alaska 1976), Coleman that he of Free will investigatory stop upheld. primary suspect When the in a possi- was also aware that there was this felony recent is encountered bility robbery being of an commit- officer, him to it is not unreasonable for View area that be a ted Mt. briefly question detain that individual for male, young native male. native ing, and when the officer has reasonable native male and a known young Free was a the individual be arm cause believe in which suspect a recent two ed, execute an immediate of his acquired. Free pistols supposedly had been weapons. them, had and there was information link- AFFIRMED. ing possibly him to a imminent armed rob- circumstances,

bery. I such believe an investigatory stop was warranted. Justice, WITZ, concurring. RABINO Chief in the conclusion that the inves- I concur *6 constitutional,

tigatory stop of Free was v.

but for on different basis. Ebona

State, (Alaska 1978),this placed limits

court reiterated strict

permissible investigatory stops that were v.

first articulated in Coleman (Alaska 1976). permissible, To be place take investigatory stop

an must

circumstance where suspi- police officer with a reasonable public danger exists

cion imminent defendant, recognized supra. had had 8. See note 3 some reason to believe that the defendant had committed, Illinois, 85, 100 9. Cf. Ybarra v. 444 U.S. committing, com- or about to (1979) (warrantless 62 L.Ed.2d 238 search crime, mit a or that the defendant was armed premises of tavern and seizure of customer on presently dangerous. All of these factors subject which itself was to search warrant was bar; case at the officer were satisfied recognized because had no reason to unreasonable believe that customer would Free, had reason to believe be armed and dan- crime, recently and that he had might therefore, committed gerous). dis- In Ybarra the . be armed. of James per- and frisk is cussed in detail when a missible under scope Terry fell well within the as Terry forth in Ybarra. set (1968). They indi- 20 L.Ed.2d 889 that the of Ybarra would have cated been search if constitutional under the standard