JASON CODAY, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-10018, No. 5478

COURT OF APPEALS OF ALASKA

2009 Alas. App. LEXIS 72

May 6, 2009, Decided

Appeal from the Superior Court, First Judicial District, Juneau, Michael A. Thompson, Judge. Trial Court No. 1JU-06-01007 CR.

COUNSEL:   Sharon B. Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

Blair M. Christensen, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.

JUDGES:   Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.

OPINION BY:   COATS

MEMORANDUM OPINION AND JUDGMENT

COATS, Chief Judge.

Jason Coday was convicted of murder in the first degree n1 and misconduct involving weapons in the third degree. n2 Coday appeals, arguing that Superior Court Judge Michael A. Thompson erred in denying his motion to suppress. In superior court, Coday argued that his arrest was illegal because it was not supported by probable cause. He argued that the court should therefore suppress all evidence resulting from his arrest. Judge Thompson denied Coday's motion, finding that the police had probable cause to arrest him. We affirm.

On August 2, 2006, a young man went into a gun shop in Juneau and asked the owner, Raymond Coxe, to show him  [*2]  some .22-caliber rifles. Coxe showed the man several rifles, then went into the back of the store. A short time later, one of Coxe's employees told him that the man had left the store, a .22-caliber rifle was gone, and there was $ 200 in cash on the counter. The price of the missing rifle was $ 195.

Coxe tried to find the man, because he was required to have the man fill out paperwork to legally sell him the rifle. But Coxe never found the man, so he reported the incident to the Juneau Police Department.

Two days later, on August 4, Edward Buyarski and his employee, Alexandra Griffin-Satre, were working outside the Juneau Fred Meyer store. They were talking with Simone Kim, a painter who was working on the building. A man in a dark rain jacket and pants approached and shot Simone Kim several times. Buyarski managed to take the gun away from the man, who then ran up a hill and into the woods behind Fred Meyer. Griffin-Satre called 911.

Juneau Police Department Sergeant Thomas Bates arrived within three to five minutes, at approximately 2:44 p.m. He saw Simone Kim lying on the ground. Kim appeared to be gravely wounded and, moments after Sergeant Bates arrived, appeared to be dead. Kim  [*3]  ultimately died from his wounds. The rifle, a sawed-off .22, was lying on the ground.

Sergeant Bates interviewed Buyarski around 3:00 p.m. and Griffin-Satre around 3:15 p.m. Buyarski and Griffin-Satre explained what had just happened. Sergeant Bates stated that the witnesses described the shooter as a white male, approximately six-feet tall. They said that the shooter was wearing dark-colored rain gear. Buyarski described the rain gear as the non-rubberized kind. They both said that the man ran uphill into the woods behind Fred Meyer. Sergeant Bates broadcast the description of the suspect and the area where the suspect had fled.

At the evidentiary hearing, Griffin-Satre described the suspect as a white male, six feet to six feet and two inches tall, with short, curly blonde hair. She said he was wearing black rain pants and a "really dark" rain jacket with a hood. Buyarski described the suspect as wearing a dark greenish to black raincoat, with nylon, rather than rubberized fabric, and dark rain pants. Buyarski said the man was approximately six feet tall and in his mid- to late-twenties, possibly early thirties.

The Juneau Police Department obtained a helicopter, and Sergeant Bates  [*4]  was flown over the wooded area with a thermal imaging device in an attempt to locate the suspect. Sergeant Bates testified that even if they were unable to locate the suspect, the fact that the helicopter was over the area would keep the suspect from moving.

Troy Cunningham lived in a duplex on the hill directly behind Fred Meyer. On the afternoon of August 4, Cunningham saw "a suspicious-looking person" running near his house. Cunningham thought the man looked "guilty of something" and that the situation "just seemed wrong." Cunningham ran to the window and yelled, "Private property." The man turned toward Cunningham and said, "I'm leaving." He saw the man climb a fifteen-foot rock retaining wall. At the evidentiary hearing, Cunningham described the man as white, around thirty years of age, wearing black light-duty rain gear, with a hood. Cunningham said that the man had short curly hair, with no beard. The man was climbing uphill in the mud, using both his legs and arms. About five minutes later, Sergeant Paul Hatch knocked on Cunningham's door. Cunningham showed Sergeant Hatch the footpath where the man had gone and a boot print in the mud on the top of the rock wall. Sergeant Hatch  [*5]  asked Cunningham to put a bucket over the boot print to preserve it. Shortly thereafter, other police officers appeared and started measuring and taking pictures of the boot print.

Paola Hannon, Cunningham's tenant and resident of the other unit in his duplex, also noticed the man when she heard Cunningham yell. She saw him go uphill into the forest. She described him as white, age twenty-five to thirty. According to Hannon, the man had short brown hair and wore a dark coat, probably black. About an hour later, the police knocked on her door, and she gave them the man's description.

Lieutenant Troy Wilson, team commander of the Special Emergency Response Team (SERT), met with Sergeant Hatch around 5:30 p.m. Sergeant Hatch pointed out the footprints behind Cunningham's residence. Three members of SERT, including Lieutenant Wilson, followed "an overgrown trail" where the suspect had been headed. They were looking for a white male, about six feet tall, with a large build, and wearing dark clothing. While investigating a sound in some thick brush, SERT encountered a man running up the path in a dark nylon rain coat and pants. They stopped the man, identified themselves, and asked him why  [*6]  he was there. The man said he was looking for his backpack and eventually identified himself as Coday. SERT confirmed this with identification that Coday had on him. They placed Coday in handcuffs, walked him back to where Sergeant Hatch was, and turned Coday over to the uniformed officers waiting there. Lieutenant Wilson stayed in the area. The officers then cleared the area and did not find anyone else in the vicinity, although they did find a tent that they later discovered belonged to Coday. Lieutenant Wilson testified that, given the information that he had, he believed Coday was the person that they were looking for.

Sergeant Scott Erickson was the officer in charge of the investigation unit on August 4, 2006. He responded to the scene of the shooting at about 3:00 to 3:15 p.m. He saw the rifle involved in the shooting, and was able to determine that it matched the rifle that had been illegally obtained from Coxe's gun store. Coxe's description of the man who had taken the .22 was similar to the description that the police had of the person who had shot Kim. The description was of a white male, about six feet tall, 180 to 200 pounds, aged twenty-five to thirty, wearing dark-colored  [*7]  rain gear. Sergeant Erickson testified that when he saw Coday escorted from the woods, that Coday fit "the totality of information we had gotten based on the descriptions from the witnesses."

Sergeant Erickson made the decision to detain Coday and take him back to the police department. Sergeant Erickson did not want to have witnesses come to the scene, because having them identify Coday while he was standing next to a patrol car in handcuffs might prejudice Coday. After witnesses identified Coday from a photo lineup, and after he interviewed Coday, Sergeant Erickson formally arrested Coday at around 6:50 p.m.

Following the evidentiary hearing and after hearing arguments from the parties, Judge Thompson found that the police had probable cause to arrest Coday when they encountered him in the woods. Judge Thompson noted that there was "almost certainly no one but the defendant" in the area where the police found him. Judge Thompson further noted that Buyarski, in particular, had been face to face with Coday and had an excellent chance to observe him. Judge Thompson found that Coday matched the witnesses' descriptions "quite well."

In reviewing Judge Thompson's decision, we must review  [*8]  the record in the light most favorable to the prevailing party, and we overturn the court's factual findings only if they are clearly erroneous. n3 We exercise our independent judgment in determining whether the facts adduced at trial established probable cause. n4 In determining whether the police had probable cause to make an arrest, we apply an objective standard: "if the facts and circumstances known to an officer would support a reasonable belief that an offense has been or is being committed by the suspect." n5 Because this test is objective, the fact that Sergeant Erickson did not tell Coday that he was under arrest until Coday was identified in a line-up is irrelevant; the question is whether a reasonable police officer under the circumstances had probable cause to arrest Coday when he was apprehended in the woods.

Given the facts that Judge Thompson found, we agree with his decision that the police had probable cause to arrest Coday when they first encountered him in the woods. The police knew, from the witnesses' descriptions at the scene of the shooting, that the  [*9]  shooter had fled into the woods behind Fred Meyer. The helicopter search made it likely that the shooter was confined to the woods. In addition, two witnesses had seen a person matching the description of the shooter flee up a trail into the woods. The police followed that person's footprints to the trail that the witnesses pointed out. It is reasonable to conclude that the police had isolated the shooter in the woods behind Fred Meyer. And it is reasonable to conclude, based on the police investigation, that Coday was the only person in the area. Finally, Coday closely matched the description that the witnesses gave. We accordingly conclude that Judge Thompson did not err in denying Coday's motion to suppress.

The judgment of the superior court is AFFIRMED.