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State v. Sivertsen6/13/2001
MEMORANDUM OPINION AND JUDGMENT
No. 4407
This case has returned to us following a remand to the district court for additional findings of fact. We will begin our discussion with a brief summary of facts.
When officers from the Ketchikan police department believed that James D. Sivertsen may have driven a motor vehicle while intoxicated, they went to his home to investigate. The officers saw Sivertsen standing in his yard and asked to speak to him. Sivertsen refused and went inside his house. The police then camped outside the house. Through Sivertsen's brothers, the officers made repeated requests for Sivertsen to come out and speak to them. When Sivertsen finally emerged, the police gathered additional evidence suggesting that he was intoxicated. Ultimately, Sivertsen was charged with driving while intoxicated, but the district court dismissed this charge after it ruled that the police had subjected Sivertsen to an illegal investigative stop.
The question presented here is whether Sivertsen's decision to emerge from his house was voluntary or whether, instead, the police subjected Sivertsen to an investigative stop. (We note the State has not claimed that the police had reasonable suspicion to support an investigative stop when Sivertsen emerged from his house, and when the State appealed this case, it did not challenge Judge Collins's conclusion that if Sivertsen was seized when he left his house, the seizure was not justified as an investigative stop. Thus, the State concedes that, if the officers' actions amounted to an investigative stop, that stop was illegal because it was not supported by reasonable suspicion.)
On remand, District Court Judge Patricia A. Collins found that the police told Sivertsen's brothers that they would get a warrant to enter the house unless Sivertsen came out, and that Sivertsen's brothers communicated this message to him. Based on these findings, as well as her original findings, Judge Collins ruled that Sivertsen was subjected to an illegal investigative stop.
As we noted in our earlier decision, a person is seized for Fourth Amendment purposes when a police officer, "by means of physical force or a show of authority, in some way restricts [the person's] liberty[.]" In Sivertsen's case, the question is whether a reasonable person in Sivertsen's situation, subjected to the officers' words and conduct, would have felt compelled to come out of his house and speak to the police.
Judge Collins found that, given the circumstances here (especially, the officers' threat to obtain a warrant to enter the house unless Sivertsen came out), Sivertsen's decision to come out and speak to the officers was the result of a show of authority sufficient to constitute an investigative stop. The State does not challenge any of Judge Collins's findings of fact, but only her legal conclusion that these facts constituted an investigative stop.
Based on our review of the record, we agree with Judge Collins that the officers' actions constituted an investigative stop. In particular, we note the State's concession that there was no reasonable suspicion to support the stop. This necessarily means that, when the officers threatened to obtain a warrant to enter Sivertsen's house, there was no probable cause to justify the issuance of the warrant. That is, the officers induced Sivertsen to come out of his residence by camping outside his yard and threatening to obtain judicial authorization to enter Sivertsen's house when, in fact, the police had no grounds for obtaining the threatened warrant.
Judge Collins's findings of fact are not clearly erroneous. And under these facts, we agree with
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