ANCHORAGE - A court ruling is preserving Alaskans' constitutional rights at a time when government and police powers are being expanded because of terrorism, a public defender said Tuesday.
The Court of Appeals decision stands out for what it says won't be allowed in Alaska even given the increased need for public safety, said Barbara Brink, an Anchorage lawyer.
"We are entitled to be free of government hassle in Alaska, thank goodness," Brink said. The court's reasoning is particularly gratifying when "civil liberties are going out the window," she said.
The case involved Steven Reichel, 40, of Homer, who was stopped by police on Oct. 28, 2001, outside Alice's Champagne Palace in Homer. Officers doing a "bar check" suspected Reichel was violating probation by drinking.
At the time, Reichel was on parole for driving while intoxicated and was not supposed to drink alcohol or be where it was sold.
Homer police Sgt. William Hutt, who was acquainted with Reichel from previous probation violation arrests, spotted him in the bar. Reichel got up and left a short time later.
Hutt and the other officers stopped Reichel outside the bar and held him there while they contacted his parole officer. The parole officer instructed police to arrest Reichel. Police searched Reichel and found a small amount of cocaine in his pocket.
Reichel was charged with felony misconduct involving a controlled substance. He later pleaded no contest with the understanding an appeal would be filed and, if he won, the state's case would disappear along with the drug conviction.
The Superior Court refused to suppress the drug evidence. But Reichel successfully argued on appeal that if the stop was illegal, then anything obtained from it could not be used as evidence, said Kenai public defender Joe Montague.
The Alaska Constitution provides greater protections than many other states and federal law against illegal police stops, Montague said.
Under state law, police may conduct an investigative stop if there is imminent public danger or recent serious harm to people or property.
The appeals court found that the facts of this case did not support the stop.
The state also argued that police had not conducted an investigative stop but had "merely approached Reichel outside the bar and asked if they could speak to him."
But the lower court and the appeals court found that officers had conducted an investigatory stop, showing authority in order to get information they wanted.
The state also argued that the stop was necessary because officers believed that Reichel was about to drive while intoxicated.
However, the appeals court found that testimony in the case strongly supported that Reichel did not intend to drive and had a taxi cab waiting about 10 feet away when he was arrested.
The court concluded that under the state's reasoning police would have the authority to stop any person with a prior DWI based merely on suspicion that the person had consumed some amount of alcohol at a social gathering.
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