Opinion
Court of Appeals No. A-10153.
May 6, 2009.
Appeal from the Superior Court, Third Judicial District, Kenai, Suzanne H. Lombardi, and Peter G. Ashman, Judges, Trial Court No. 3KN-07-00853 CR.
Tracey Wollenberg, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Nazary Polushkin was convicted of felony driving under the influence based on his plea of no contest. In entering his plea, Polushkin preserved his right to appeal the trial court's denial of his motion to suppress evidence. Polushkin argued in his motion to suppress that the trooper who stopped him for a traffic violation did not have probable cause to initiate the stop and that the stop was pretextual. We affirm the trial court's ruling.
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974) (authorizing this procedure).
On May 13, 2007, at around 4:18 a.m., Alaska State Trooper Matthew Wertanen pulled over a Toyota pickup truck driven by Polushkin. Trooper Wertanen later testified that, before he stopped Polushkin's truck, he noticed that the license plate was obscured, and he could only read part of it. He testified that this was a violation of state law. (Alaska Statute 28.10.171(b) requires a license plate to be "maintained in a location and condition so as to be clearly legible.")
When Trooper Wertanen contacted Polushkin, he noticed the odor of alcohol. He asked Polushkin whether he had been drinking, and Polushkin acknowledged that he had. Wertanen had Polushkin perform field sobriety tests, which Polushkin failed. Wertanen then arrested Polushkin for driving under the influence of alcohol.
Trooper Wertanen conceded that he had no basis to suspect that Polushkin was intoxicated before contacting him, and had only stopped Polushkin because of the illegible license plate. Wertanen also conceded that he could see part of the license plate and had the ability to identify a vehicle without knowing all of the license plate numbers. Because he could have run a partial plate, Wertanen conceded that he did not conduct the stop to determine whether Polushkin's truck was validly registered in Alaska.
Wertanen testified that he had stopped other vehicles for having illegible license plates and would only decline to do so if he was responding to a call. He stated that he did not necessarily give people tickets for this offense, and he sometimes gave people warnings. He stated that he was aware that other police officers also made stops for illegible license plates.
At the conclusion of the evidentiary hearing, conducted by Superior Court Judge Pro Tem Suzanne H. Lombardi, Polushkin argued that the stop was pretextual — that Trooper Wertanen "decided to stop the vehicle as a fishing expedition."
At the conclusion of the hearing, Judge Lombardi found that the stop was not pretextual, and that Trooper Wertanen's testimony was credible. But she also stated in her findings that Trooper Wertanen testified "to the fact he could not read enough of Mr. Polushkin's plate to call it in."
Polushkin filed a motion to reconsider, pointing out that Wertanen testified that he could read enough of the license plate to call it in. On reconsideration, the matter was addressed by Superior Court Judge Pro Tem Peter G. Ashman. Judge Ashman ruled that although "the officer testified that he could have called in a partial plate, he was unequivocal in his testimony that the plate was obscured within the meaning of the relevant state regulation. As such, the officer had probable cause to stop for a traffic violation." Polushkin appeals.
The first question Polushkin presents is whether Trooper Wertanen had probable cause to stop him for having an illegible license plate. Polushkin points out that many vehicles have illegible license plates and that drivers are frequently unaware that their license plate is illegible. He argues that a primary purpose of having a legible license plate is to allow the police to identify a vehicle, and that Trooper Wertanen could read enough of the license plate to identify his car.
Normally, when a police officer directly observes a violation of the motor vehicle laws, the officer has probable cause to conduct a traffic stop. Under AS 28.10.171(b), "[e]very [motor vehicle] registration plate issued under this chapter shall be . . . maintained in a location [on the vehicle] and [in a] condition so as to be clearly legible." According to Trooper Wertanen's testimony, he directly observed that Polushkin's license plate was covered with dirt and was only partially legible. The trooper therefore had probable cause to conduct a traffic stop of Polushkin's truck.
Bessette v. State, 145 P.3d 592, 594 (Alaska App. 2006); Nease v. State, 105 P.3d 1145, 1148 (Alaska App. 2005).
Contrary to Polushkin's assertion, it is immaterial that the trooper might have been able to identify Polushkin's truck through a combination of its physical description and the legible portion of the license plate. This does not alter the fact that the condition of the license plate violated the statute.
Polushkin also argues that the trooper did not have probable cause to stop him because there was no evidence that Polushkin willfully allowed the license plate to become partially illegible. Polushkin relies on AS 28.10.451, which declares that "[a] person may not wilfully attempt to defeat the provisions of this chapter . . . or otherwise wilfully fail to comply with the requirements of this chapter."
We need not decide whether AS 28.10.451 requires proof of willfulness in prosecutions for violation of AS 28.10.171(b). Even assuming this to be the case, the question presented here is not whether the State's evidence would have been sufficient to convict Polushkin of violating AS 28.10.171(b) at a trial, but rather whether the trooper had probable cause to believe that Polushkin was violating this statute at the time of the traffic stop. We conclude that, given the circumstances known to the trooper, and even if willfulness was an element of the offense, there was probable cause for the stop.
The final argument we must address is Polushkin's contention that Trooper Wertanen stopped him, not because he had an illegible license plate, but to investigate the more serious offense of driving under the influence. But even if Polushkin made this showing, it would not be sufficient to show a pretextual stop. Although we have not decided whether a pretextual stop would constitute an invalid investigative stop, we have stated that, to show that a stop was pretextual, the defendant has to prove that the officer making a stop departed from reasonable police practice. Polushkin has not shown that the stop that Trooper Wertanen made departed from normal police practice. In fact, Trooper Wertanen's testimony, which the trial court found credible, established that stopping vehicles for illegible license plates was normal police practice.
Bessette, 145 P.3d at 595; Grohs v. State, 118 P.3d 1080, 1081-82 (Alaska App. 2005); Nease, 105 P.3d at 1147-50.
The judgment of the superior court is AFFIRMED.