Tuttle v. State

¶1OPINION

¶2Desmond A. Tuttle entered a plea of no contest to attempted misconduct involving a controlled substance in the third degree, a class C felony.1 In entering his plea, Tuttle reserved his right to raise an issue on appeal: that the evidence against him stemmed from an illegal arrest. We agree with Tuttle and reverse his conviction.

¶3Factual and procedural background

¶4At the evidentiary hearing, Brett D. May testified that he worked for the Riverside House, a hotel in Soldotna. May testified that on October 27, 2004, he observed Tuttle urinating in the hallway and fidgeting with some doors. May said he asked Tuttle what he was doing, but Tuttle ignored him. May called the police.

¶5Soldotna Police Officer Jezel Stoneking was dispatched to the Riverside House at approximately 2:30 a.m. Officer Stoneking testified that dispatch informed her that the desk clerk had observed an individual who urinated either in the lobby or the hallway. Officer Stoneking started her audio recorder and then walked into the hotel lobby. The desk clerk pointed down the hallway towards a person who matched the description provided by dispatch. Other than the clerk and this other individual, no one else was around.

¶6Officer Stoneking made contact with Tuttle in front of Room 104. This room was in fact Tuttle’s room, which he had paid for in advance. Officer Stoneking observed that Tuttle’s pants appeared damp and that he seemed intoxicated. At this time, Officer Stoneking did not know that Tuttle was a guest at the hotel. However, Tuttle was attempting to open the door to Room 104 with what Officer Stoneking thought looked like a car key. Officer Stoneking admitted *61that Tuttle told her that Room 104 was his room.

¶7Due to Tuttle’s demeanor, which Officer Stoneking described as disoriented and “almost hostile,” she requested backup. Officer Duane Kant arrived to assist within a few minutes. Officer Stoneking testified that Tuttle “was getting loud enough to where at some point other hotel guests- were disturbed.” She thought that one guest looked out of a nearby room but closed the door after seeing two police officers with Tuttle. Officer Stoneking testified ■ that she told Tuttle to settle down.

¶8Eventually the officers- got Tuttle’s name from him and reported it to dispatch. Dispatch informed them that Tuttle had previously possessed a bullet proof vest, a knife, and a gun. Officer Stoneking testified that based on Tuttle’s behavior and the dispatch report, she removed her pepper spray and concealed it in her right hand. She testified that Tuttle could see she had something in her hand. Both officers testified that during the encounter Tuttle was subject to wide mood swings ranging from passive to aggressive, raising and lowering his voice. Based on Tuttle’s demeanor and raised voice, the officers arrested Tuttle for disorderly conduct.

¶9Tuttle testified that when the officers showed up, he told them who he was and that he was okay. Tuttle denied going to different doors before he got to his door. Tuttle also denied ever being addressed by the hotel clerk. Tuttle testified that the officers denied him access to his hotel room and that Officer Stoneking was loud at times and combative. Further, he testified that only after he was handcuffed did he get loud because he was trying to figure out what was happening.

¶10Officer Stoneking transported Tuttle to the Wildwood Pretrial Facility. Upon departing the facility, she checked the back of her patrol ear. Officer Stoneking found a clear plastic bag containing approximately thirteen grams of white powder on the rear floorboard of the patrol car. A subsequent field test of this substance indicated that the substance was cocaine. Officer Stoneking had checked the patrol car prior to the start of her shift. She had not had anyone else in the rear of the car that night before Tuttle.

¶11Officer Stoneking returned to the hotel and guarded the door to Room 104 while Officer Kant secured a search warrant. A warrant was issued and the search resulted in the seizure of two plastic bags containing cocaine with a combined weight of sixteen and one-half grams, a small electronic scale, aluminum foil in pieces for packaging, and a loaded handgun.

¶12The State indicted Tuttle on one count of misconduct involving a controlled substance in the third degree, a class B felony,2 and two counts of misconduct involving a controlled substance in the fourth degree, a class C felony.3 (The charges were later amended to one count of attempted misconduct involving a controlled substance in the third degree, two counts of misconduct involving a controlled substance in the fourth degree, and one count of disorderly conduct.) Tuttle filed a motion seeking to suppress the evidence against him on the ground that the officers lacked probable cause to arrest him for disorderly conduct.

¶13Superior Court Judge Charles T. Huguelet conducted an evidentiary hearing. We have previously set out a summary of the testimony at the evidentiary hearing. In. addition, the State presented the audio recording that Officer Stoneking made during the incident. At the conclusion of the evidentiary hearing, Judge Huguelet found that, during the interview with the police, Tuttle was going back and forth between being “out of it and being hostile. He started shouting, they weren’t able to calm him down, and they took him into custody.” Judge Huguelet found that the police had probable cause to arrest Tuttle for disorderly conduct. He accordingly denied Tuttle’s motion to suppress the evidence obtained by the police.

¶14Why we conclude that the police did not have probable cause to arrest Tuttle for disorderly conduct

¶15Tuttle was arrested for disorderly conduct pursuant to AS 11.61.110(a)(2):

*62A person commits the crime of disorderly conduct if ... in a public place or in a private place of another without consent, and with intent to disturb the peace and privacy of another or with reckless disregard that the conduct is having that effect after being informed that it is having that effect, the person makes unreasonably loud noise[.][4]

¶16The State charged Tuttle with recklessly disturbing the peace and privacy of others. Tuttle argues that this statute requires the police to warn a person that his conduct is having the effect of disturbing the peace and privacy of another.

¶17The State has provided this court with copies of the audio recording that Officer Stoneking made of the incident. Officer Sto-neking testified that the recording was an accurate representation of the incident. (She did state that her voice would seem louder because the microphone was clipped to her shirt pocket, relatively close to her mouth.) Judge Huguelet stated that because the incident was recorded “we know what happened.” The State concedes that the facts that the trial court found “are based upon the audio recording.” The State argues that, during the incident, the police told Tuttle to settle down, not raise his voice, and not yell. The State also relies on the following exchange in arguing that the police told Tuttle that he was creating a disturbance by making unreasonably loud noise:

Tuttle: What are you doing here bothering me?

Officer Kant: We got called.

Tuttle: Okay.

Officer Kant: Creating a disturbance.

Tuttle: Okay. Okay. I am?

Officer: Uh-huh (affirmative).

¶18Alaska Statute 11.61.110(a)(2), the subsection of the disorderly conduct statute under which Tuttle was charged, appears to be designed to criminalize disturbing the peace and privacy of other people by making “unreasonably loud noise.” Under the statute, if someone is recklessly making unreasonably loud noise and then is specifically informed that the noise is disturbing the peace and privacy of other people, the person commits the crime of disorderly conduct if he then persists in making unreasonably loud noise. The statute appears to require a specific warning. This warning narrows the conduct to which the statute applies and makes the statute less subject to claims of vagueness and arbitrary enforcement.

¶19First, there is no indication that Tuttle was making “unreasonably loud noise” before the officers approached him. May testified that he was the person who called the police about Tuttle. May testified that he saw Tuttle urinating in the hallway. He saw Tuttle with a key in his hand trying to open some doors, apparently because Tuttle did not know which room was his. When he asked Tuttle what he was doing, Tuttle ignored him. May then called the police.

¶20We have carefully reviewed the recording of the incident. Shortly after the police arrived, Tuttle asked the police why they were bothering him. In response, Officer Kant told Tuttle that the police were called because Tuttle was “creating a disturbance.” But this exchange did not inform Tuttle that he was making unreasonably loud noise that was disturbing others. In fact, the act that prompted May to call the police had nothing to do with Tuttle making unreasonably loud noise.

¶21It is true that Officer Stoneking told Tuttle not to raise his voice and later told him again not to raise his voice. She also told him “don’t yell.” Apparently Tuttle reacted when Officer Stoneking took out her pepper spray. But there is simply no evidence that the police informed Tuttle that he was disturbing the peace and privacy of others by making “unreasonably loud noise.” And from our review of the audio recording, it simply does not appear that Tuttle was making “unreasonably loud noise.”

¶22In reviewing the superior court’s denial of a motion to suppress, we view the facts in the light most favorable to upholding the trial court’s ruling.5 We accept the findings of the trial court unless they are clearly erroneous; whether those factual findings support the trial court’s legal conclusions is a ques*63tion of law that we decide de novo.6 From our review of the record, including the recording, we conclude that Judge Huguelet’s finding that Tuttle was making “unreasonably loud noise” is clearly erroneous. Furthermore, there was no evidence to support the conclusion that Tuttle made unreasonably loud noise after being informed that he was making such noise and that it was disturbing the peace and the privacy of others.

¶23Conclusion

¶24Accordingly, we conclude that Judge Hu-guelet erred in refusing to grant Tuttle’s motion to suppress. We therefore REVERSE Tuttle’s conviction.

¶25Reversed and remanded.

¶26MANNHEIMER, Judge, concurring.