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              IN THE COURT OF APPEALS OF THE STATE OF ALASKA


RUSTY K. MEYER,
                                                      Court of Appeals No. A-11343
                           Appellant,                Trial Court No. 3PA-11-014 CR

                    v.                                       O P I N I O N

STATE OF ALASKA,                                            ON REHEARING

                           Appellee.                  No. 2486 — January 22, 2016


             Appeal from the Superior Court, Third Judicial District, Palmer,
             Vanessa H. White, Judge.

             Appearances: Marjorie Mock, under contract with the Public
             Defender Agency, and Quinlan Steiner, Public Defender,
             Anchorage, for the Appellant. Terisia K. Chleborad, Assistant
             Attorney General, Office of Criminal Appeals, Anchorage, and
             Craig W. Richards, Attorney General, Juneau, for the Appellee.

             Before: Mannheimer, Chief Judge, and Allard, Judge.

             Judge MANNHEIMER.


             The Appellant, Rusty K. Meyer, seeks rehearing of our earlier decision in
this case: Meyer v. State, unpublished, 2015 WL 1604860 (Alaska App. 2015).
             Meyer was convicted of felony driving under the influence based on
evidence obtained during Meyer’s encounter with the police at a fireworks stand on the
Parks Highway. Before his trial, Meyer filed a motion to suppress this evidence, arguing
that the police had subjected him to an investigatory stop without the necessary
reasonable suspicion to justify the stop.
              The superior court held an evidentiary hearing and made findings of fact
regarding what exactly happened during Meyer’s encounter with the police. Based on
its findings of fact, the superior court concluded that Meyer’s encounter with the police
amounted to an investigatory stop for purposes of the Fourth Amendment. But the
superior court denied Meyer’s suppression motion because the court concluded that this
investigatory stop was supported by reasonable suspicion.
              On appeal, this Court upheld the superior court’s decision on a different
ground: we concluded that, given the facts found by the superior court, Meyer’s
encounter with the police did not amount to an investigatory stop — thus making the
issue of reasonable suspicion moot. Meyer, 2015 WL 1604860 at *2-3.
              In his petition for rehearing, Meyer concedes that an appellate court is
authorized to affirm a lower court’s ruling using a legal analysis that is different from the
one the lower court used. 1 That is, Meyer implicitly acknowledges that, in such circum­
stances, an appellate court need not defer to the lower court’s differing legal analysis of
the case, but can instead apply its own independent legal analysis.
              But Meyer argues that our decision in his case did not rest on a rejection of
the superior court’s legal analysis. Rather, Meyer contends, our decision rested on a
rejection of a finding of fact made by the superior court.
              More specifically, Meyer argues that the superior court’s Fourth
Amendment conclusion — that Meyer was subjected to an investigatory stop — was a



   1
        See Torrey v. Hamilton, 872 P.2d 186, 188 (Alaska 1994) (an appellate court can
affirm a trial court’s ruling on any legal theory revealed by the record, including one rejected
by the trial court); see also Russell v. Anchorage, 626 P.2d 586, 588 n. 4 (Alaska App. 1981).

                                             –2–                                           2486

finding of fact that we were required to defer to, and not a conclusion of law that we
could independently review.
             To support this argument, Meyer relies on decisions of the Alaska Supreme
Court which declare that a court’s ruling as to whether a person was seized for Fourth
Amendment purposes is a finding of fact — a finding that is reviewed under the
deferential “clearly erroneous” standard of review. See Majaev v. State, 223 P.3d 629,
631 (Alaska 2010); Waring v. State, 670 P.2d 357, 364 n. 15 (Alaska 1983).
             If Meyer is correct on this point, then this Court committed error when we
independently reviewed the superior court’s conclusion that Meyer’s encounter with the
police constituted an investigatory stop. For as Meyer points out, an appellate court is
not authorized to use its independent judgement when assessing the facts of a case under
the “clearly erroneous” standard of review. Instead, an appellate court must defer to the
lower court’s view of the facts: we must accept the facts as found by the lower court
unless, based on the record, we are left “with a definite and firm conviction ... that a
mistake has been made”. 2
             But as we explain in this opinion, even though our supreme court declared
in Waring and Majaev that it is a “question of fact” whether a person’s encounter with
the police constituted a seizure for Fourth Amendment purposes, the supreme court did
not actually follow this rule in either Waring or Majaev. Instead, the supreme court
decided the Waring and Majaev appeals using the principle that appellate courts
normally apply to all types of cases: A trial court’s findings of historical fact are
reviewed deferentially, under the “clearly erroneous” standard; but the proper legal




   2
      Geczy v. LaChappelle, 636 P.2d 604, 606 n. 6 (Alaska 1981);Mathis v. Meyeres, 574
P.2d 447, 449 (Alaska 1978).

                                          –3–                                       2486

categorization of those facts — i.e., the assessment of the legal consequences of the trial
court’s findings of fact — is a question of law that the appellate court evaluates de novo.
              This is the principle that applies to appellate review of trial court rulings
regarding whether a Fourth Amendment seizure took place — i.e., rulings as to whether
particular police conduct constituted an investigatory stop or an arrest. And, indeed, this
is the principle that the supreme court applied in Waring and Majaev.
              Accordingly, this Court acted correctly when we independently evaluated
whether the facts of Meyer’s case constituted an investigatory stop.


       A closer look at the Alaska Supreme Court’s decisions in Waring and
       Majaev


              The question that we have been discussing has its origin in footnote 15 of
the Waring opinion, 670 P.2d at 364. In this footnote, the supreme court declared that
“[w]hether a seizure has occurred is a question of fact.”
              But as the Waring court then explained, “the superior court [in Waring’s
case] did not make a specific finding [on the question of whether] a seizure occurred.”
Ibid. If the question of whether a seizure occurred were truly a question of fact, then one
would expect the supreme court to have remanded Waring’s case to the trial court so that
the trial judge could make a finding on this factual issue.
              (Alaska Criminal Rule 12(d) requires trial judges to make explicit findings
of fact when adjudicating suppression motions. When a trial judge fails to make all the
findings necessary to resolve a suppression issue, the case must be remanded for
supplemental findings.) 3


   3
      See Rockwell v. State, 176 P.3d 14, 21 (Alaska App. 2008); Haskins v. Anchorage, 22
P.3d 31, 32 (Alaska App. 2001); Long v. State, 837 P.2d 737, 742 (Alaska App. 1992).

                                           –4–                                        2486

              But instead of remanding Waring’s case to the trialcourt, the supreme court
proceeded to decide the seizure question independently. The supreme court declared that
it was entitled to do this because the ultimate issue of whether, under given facts, a
seizure occurred was really a question of law: “After reviewing the record surrounding
the initial contact, we conclude that, as a matter of law, the [state trooper’s] actions ...
constituted a seizure of [Waring’s co-defendant] Randy Robinson.” Waring, 670 P.2d
at 364 (emphasis added).
              The supreme court pursued a similar course in Majaev — applying its own
independent legal analysis to the facts found by the trial court.
              In Majaev, the trial court affirmatively found that the trooper’s encounter
with the defendant did not constitute a seizure. That is, the trial court found that the
trooper’s conduct did not amount to a restraint on Majaev’s liberty, either by use of
physical force or by “show of authority”. Majaev, 223 P.3d at 631. And the supreme
court, citing Waring, declared that the trial court’s ruling was a finding of fact that could
be reversed only if it was “clearly erroneous”. Ibid.
              But two pages later, the supreme court reversed the trial court’s ruling
because the supreme court concluded that the trial court engaged in the wrong legal
analysis (because the trialcourt focused on the wrongaspect of Majaev’s encounter with
the officer). Then, after rejecting the trial court’s legal evaluation of the encounter, the
supreme court independently declared that, under the facts of Majaev’s case, a seizure
occurred as a matter of law.
              Here is the supreme court’s analysis:

                      The district court correctly determined that Majaev
              apparently felt free to leave when Trooper Bordner first
              parked his vehicle and [Majaev] in fact did leave. But the
              critical moment for the purpose of our analysis occurred


                                            –5–                                         2486

              when Trooper Bordner signaled to Majaev to return, which
              triggered the statutory prohibition against ignoring a peace
              officer. At that moment, Majaev stopped and complied with
              Trooper Bordner’s hand signal, in a manner consistent with
              his perceived duty under AS 28.35.182.

                     The show of authority in this situation emanated from
              AS 28.35.182 and its effect on a reasonable person’s
              evaluation of whether he is free to leave. The existence and
              applicability of [this] statute distinguishes this case from
              holdings in other jurisdictions that a police officer’s gesture
              alone does not constitute a seizure. Because of the statute,
              Trooper Bordner’s gesture was a sufficient show of authority
              to make a reasonable person in Majaev’s position believe that
              he was no longer free to leave. ... [Thus,] a seizure did in
              fact occur[.]

Majaev, 223 P.3d at 633-34.
              As this Court noted in Phillips v. State, 271 P.3d 457, 468 (Alaska App.
2012), “[s]ometimes one must look beyond what a court says it is doing and, instead,
focus on what the court actually is doing.”
              Even though the supreme court’s opinions in Waring and Majaev declare
that whether a seizure occurred is a “question of fact”, the supreme court actually
resolved both of these appeals by applying its own independent legal analysis to the
historical facts found by the trial court.


       The general principle at work here


              By resolving the Waring and Majaev appeals this way, the supreme court
applied a principle that appellate courts employ in many different situations: A trial
court’s findings of historicalfact are reviewed deferentially under the “clearly erroneous”

                                             –6–                                      2486

standard of review. But the question of how those facts should be legally categorized —
in other words, the assessment of the legal consequences of the trial court’s findings of
fact — is a question of law that the appellate court evaluates de novo.
              For instance, even though a superior court’s award of child custody is
typically reviewed for abuse of discretion, 4 the question of “whether the trial court
applied the correct [legal] standard in a custody or visitation determination is a question
of law” which the supreme court reviews de novo. Ross v. Bauman, 353 P.3d 816, 823
(Alaska 2015). 5 Likewise, the question of “whether [the superior court’s] factual
findings are sufficient to support an award of custody or visitation to a third party is a
legal issue to which [the supreme court applies its] independent judgment.” Ibid.
              Similarly, when the supreme court reviews the superior court’s determina­
tion that a child is in need of aid, the supreme court will give deference to the superior
court’s factual findings, but the supreme court will then independently review the legal
determination of whether probable cause exists to believe that the child is in need of aid.
In re J.A., 962 P.2d 173, 175-76 (Alaska 1998).
              Turning to the arena of criminal law, we note that in Michael v. State, 115
P.3d 517 (Alaska 2005), the supreme court held that this Court committed error by
employing the deferential “clearly erroneous” standard of review when we evaluated a
trial court’s ruling on a sentencing mitigator.
              The supreme court explained that the trial court’s ruling contained both
findings of historical fact and a conclusion of law drawn from those facts. While the trial
court’s findings of historicalfact were entitled to deference under the “clearly erroneous”



   4
       Ebertz v. Ebertz, 113 P.3d 643, 646 (Alaska 2005).
   5
      Citing Osterkamp v. Stiles, 235 P.3d 178, 184 (Alaska 2010); Elton H. v. Naomi R.,
119 P.3d 969, 973 (Alaska 2005).

                                            –7–                                       2486

standard of review, this Court committed error by failing to employ its independent
judgement when we evaluated the trial court’s conclusion regarding the legal
consequences of those facts. Here is how the supreme court explained this principle:

             We hold that the correct standard of review of a superior
             court’s application of statutory aggravating and mitigating
             factors to a given set of facts is de novo review.

                    The existence or non-existence of an aggravating or
             mitigating factor is a mixed question of law and fact. The
             determination of whether the defendant’s conduct is among
             the least serious conduct within the definition of the offense
             involves a two-step process: the court must (1) assess the
             nature of the defendant’s conduct, [which is] a factual
             finding, and then (2) make the legal determination of whether
             that conduct falls within the statutory standard of “among the
             least serious conduct within the definition of the offense.”
             Any factual findings made by the court regarding the nature
             of the defendant’s conduct are reviewed for clear error, but
             whether those facts establish that the conduct “is among the
             least serious” under AS 12.55.155(d)(9) is a legal question.

Michael, 115 P.3d at 519 (emphasis added).
             In the footnote that accompanies this passage from Michael (footnote 7),
the supreme court approvingly cited Ornelas v. United States, 517 U.S. 690, 116 S.Ct.
1657, 134 L.Ed.2d 911 (1996) — a case which holds that, once the historical facts are
established by the trial court, the question of whether those facts suffice to establish
“probable cause” or “reasonable suspicion” is a legal question to be determined de novo
by the appellate court. Ornelas, 517 U.S. at 696-99, 116 S.Ct. at 1661-63.
             A review of case law from around the country shows that courts often use
the phrase “issue of fact” when they are referring to a fact-intensive inquiry — such as
whether a seizure occurred in a particular case. But as shown by the wording and

                                         –8–                                       2486

outcome of the Alaska Supreme Court decisions we have just been discussing, even
though appellate courts may sometimes use the phrase “issue of fact” to describe the
question before them, these courts actually apply the principle we have set forth above
— the principle that the proper legal categorization of given facts is an issue of law, not
an issue of fact.
              One of the better discussions of this point is found in Watts v. Indiana, 338
U.S. 49, 51; 69 S.Ct. 1347, 1348; 93 L.Ed. 1801 (1949):

                      [The phrase] “issue of fact” ... does not cover a
              conclusion drawn from [findings of fact], when that
              conclusion incorporates standards ... or criteria for judgment
              which in themselves are decisive of constitutional rights.
              [Defining such] standards and criteria, ... and [the] proper
              applications [of those standards and criteria], are issues for
              [an appellate court’s] adjudication. ... [I]t is important to
              distinguish between issues of fact that are ... foreclosed [from
              relitigation on appeal] and issues which, though cast in the
              form of determinations of fact, are the very issues [to be]
              review[ed] [on appeal].

              The United States Supreme Court is not alone in endorsing this principle.
As demonstrated by the following cases, when courts from around the country are
confronted with appeals that squarely raise this issue, they expressly recognize that the
proper legal categorization of given facts is a question of law.
              Thus, in State v. Burroughs, 955 A.2d 43, 48-50 (Conn. 2008), the
Connecticut Supreme Court held that the question of whether a seizure occurred is a
mixed question of fact and law. An appellate court must defer to the trial court’s
findings of historical fact. But the ultimate test for whether a seizure occurred is an
objective test: whether, in view of allthe circumstances, a reasonable person would have
believed that he or she was not free to leave. When an appellate court evaluates the facts

                                           –9–                                        2486

of the case (as found by the trial court) against this objective standard, it must use its
independent judgement.
              The Connecticut court directly addressed this principle in footnote 5 of its
opinion:

                      We ... note that [we have] been inconsistent in
              articulating the test for reviewing whether a seizure has
              occurred. In one line of cases, we have stated that whether a
              seizure occurred is a question of fact. In other cases, we have
              distinguished between the trial court’s findings of “historical”
              fact, which we do not overturn unless they are clearly
              erroneous, and the ultimate question of whether a seizure
              occurred, which is subject to a “scrupulous independent
              review of the record to ensure that the trial court’s
              determination was supported by substantial evidence.”

                     We now clarify that appellate review of whether a
              seizure occurred is a mixed question of law and fact, and
              when there is no dispute as to the underlying facts, as in the
              present case, or when the trial court’s finding of historical
              facts is not clearly erroneous ... , it is the duty of the
              reviewing court to make an independent legal determination
              of whether a reasonable person in the defendant’s position
              would have believed that he was not free to leave.

Burroughs, 955 A.2d at 48 (citations omitted).
              Many other appellate courts have explicitly acknowledged that this is the
proper approach. See Henson v. United States, 55 A.3d 859, 863 (D.C. App. 2012) (“We
... review findings of historical fact only for clear error ... [and] we view the evidence
presented at the suppression hearing in the light most favorable to the party prevailing
below ... . However, legal conclusions on Fourth Amendment issues, including whether
a seizure has occurred ... , are legal questions that we review de novo.”); State v. Pannell,


                                           – 10 –                                       2486

901 P.2d 1321, 1323 (Idaho 1995) (“When reviewing ‘seizure’ issues, we defer to the
trial court’s factual findings unless they are clearly erroneous. [But we] freely review,
de novo, the trial court’s legal determination of whether or not an illegal seizure
occurred.”); Jones v. State, 682 A.2d 248, 253 (Md. 1996) (“When the question is
whether a constitutional right, such as ... a defendant’s right to be free from unreasonable
searches and seizures, has been violated, the reviewing court makes its own independent
constitutional appraisal, by reviewing the law and applying it to the peculiar facts of the
particular case.”); State v. Lisenbee, 13 P.3d 947, 949 (Nev. 2000) (“Fourth Amendment
seizure issues ... often involve mixed questions of law and fact. This court reviews
findings of historical facts under the clearly erroneous standard, but the legal
consequences of those facts are questions of law which we review de novo.”); State v.
Ingram, 331 S.W.3d 746, 756-57 (Tenn. 2011) (“The ultimate conclusion [as to] whether
the facts establish that a person was under custodial arrest is one of law.”); State v.
Carter, 812 P.2d 460, 465 n. 3 (Utah App. 1991) (“[A] trial court’s ultimate
determination of whether on particular facts an encounter amounts to a seizure under the
fourth amendment has been held to be a legal conclusion and thus afforded no deference
on appeal, but reviewed under a correction of error standard.”); State v. Thorn, 917 P.2d
108, 111 (Wash. 1996) (“[T]he determination of whether a seizure has occurred is a
mixed question of law and fact. The resolution by a trial court of differing accounts of
the circumstances surrounding the encounter are factual findings entitled to great
deference. ... However, the ultimate determination of whether those facts constitute a
seizure is one of law and is reviewed de novo.”); State v. Young, 717 N.W.2d 729, 736
(Wis. 2006) (“Whether a person has been seized is a question of constitutional fact. ...
[W]e accept the [trial] court’s findings of evidentiary or historical fact unless they are
clearly erroneous, but we determine independently whether or when a seizure
occurred.”).

                                           – 11 –                                      2486

              Thus, when the Alaska Supreme Court applied its own independent legal
analysis to the trial court’s findings of fact in Waring and Majaev, it was following a
well-established legal principle.


       One additional method of analyzing this controversy


              Thus far in this opinion, we have relied on traditional legal research and
textualanalysis to reach the conclusion that an appellate court independently assesses the
proper legal categorization of the facts found by a trial court. But there is another way
to approach this problem: by asking what the real-world consequences would be if,
in these situations, appellate courts adopted a “clearly erroneous” standard of review
versus a “de novo” standard of review.
              Consider the following hypothetical case: Two co-conspirators are using
a motor vehicle to transport contraband (e.g., illegal drugs, or bootleg alcohol, or stolen
goods). While their vehicle is parked along the street, and while the two co-conspirators
are sitting in it, a police officer approaches and begins to ask them questions. Things
quickly go south for the co-conspirators: this encounter leads to the discovery of their
contraband, and both of them end up as defendants in a criminal prosecution. Because
of administrative problems, the two defendants’ cases are assigned to different judges.
              Each defendant files a motion to suppress all evidence of the contraband,
arguing that the police officer engaged in an investigative stop without the required
reasonable suspicion of criminal activity. It turns out that the police officer videotaped
the encounter, and the pertinent facts of the encounter are not in dispute. But the two
judges reach different conclusions based on these same undisputed facts: One of the
judges rules that the police officer’s words and actions constituted an investigatory stop
— i.e., a show of authority that would make a reasonable person in the defendants’

                                          – 12 –                                      2486

position believe that they were no longer free to leave. The other judge, however, rules
that the encounter never rose to this level of coercion, and thus no investigatory stop
occurred.
               And now, add one final element to the hypothetical case: Assume that,
given the existing case law dealing with investigatory stops, the suppression motions
were reasonably debatable, and the two judges’ differing conclusions as to whether a
seizure occurred are each potentially justifiable.
              If an appellate court is required to employ the deferential “clearly
erroneous” standard of review when it evaluates the trial judges’ rulings — the judges’
differingconclusions as to whether a seizure occurred, given the undisputed facts — then
the appellate court would be required to affirm both of the contradictory rulings.
              As we explained earlier, under the “clearly erroneous” standard of review,
an appellate court must affirm a trial court’s ruling unless, after full examination of the
record, the appellate court is left with a definite and firm conviction that a mistake has
been made. In this hypothetical, we are assuming that both of the trial judges’ rulings
were reasonable. Both of those rulings should therefore be affirmed under a “clearly
erroneous” standard.
              There are, in fact, areas of the law where appellate courts will uphold
disparate rulings even when those rulings are made on exactly the same facts. For
example, when we review a sentence of imprisonment for excessiveness, we employ the
“clearly mistaken” standard of review — a standard of review that is “founded on two
concepts: first, that reasonable judges, confronted with identical facts, can and will differ
on what constitutes an appropriate sentence; [and] second, that society is willing to
accept these sentencing discrepancies, so long as a judge’s sentencing decision falls




                                           – 13 –                                       2486

within a permissible range of reasonable sentences.” State v. Hodari, 996 P.2d 1230,
1232 (Alaska 2000). 6
              But as demonstrated by our supreme court’s decision in Michael v. State,
115 P.3d 517 (Alaska 2005), our supreme court is not willing to countenance this same
level of idiosyncracy in all sentencing rulings. In Michael, the supreme court held that
an appellate court must use de novo review when it evaluates a sentencing judge’s ruling
as to whether given facts constitute a particular statutory aggravating or mitigatingfactor.
Michael, 115 P.3d at 519.
              By requiring de novo review, the supreme court adopted a standard of
review that imposes a greater degree of uniformity and predictability — by treating the
ultimate question as an issue of law. Once an appellate court categorizes a given set of
facts as constituting proof of a specific aggravator or mitigator (or as not constituting
proof of that aggravator or mitigator), this becomes precedent for all future trial court
rulings on this subject.
              These values of uniformity and predictability are especially important when
courts issue rulings about the meaning or scope of constitutional guarantees, such as the
Fourth Amendment’s protection against unreasonable searches and seizures. Society is
not willing to have constitutional protections vary according to the views of the
particular trial judge assigned to a defendant’s case. And judges, lawyers, and police
officers need predictable rules when they enforce and apply Fourth Amendment law.
              Employing a standard of “de novo” or “independent” review on appeal
helps to foster these goals of uniformity and predictability. Employing a deferential
“clearly erroneous” standard of review tends to defeat them. Thus, to the extent that the
supreme court’s decisions in Waring and Majaev are ambiguous on this point (i.e., the


   6
       Quoting Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997).

                                           – 14 –                                      2486

standard of review that an appellate court should apply when reviewing a trial court’s
ruling as to whether a seizure occurred), Waring and Majaev should be interpreted as
applying and endorsing a de novo standard of review.


       Conclusion


              We conclude that we acted properly when we applied our independent
judgement to the question of whether, under the facts found by the superior court,
Meyer’s encounter with the police constituted a seizure for purposes of the Fourth
Amendment.
              Accordingly, havingconsidered Meyer’s petition for rehearing, we reaffirm
our earlier decision in this case.




                                         – 15 –                                   2486

