Public defender raises probable cause issue; judge dismisses DUI charge

Does a police officer have a duty to confirm there is sufficient probable cause to stop a driver?

That’s the question raised in a motion filed by an assistant public defender on behalf of a Homer woman charged with driving under the influence. However, because the Kenai District Attorney’s office failed to meet a deadline opposing that motion, Judge Margaret Murphy sidestepped a full debate on the issue. 

Last month, Murphy granted a motion by public defender Dan Poulson seeking to suppress evidence and dismiss charges against his client, Maria Fourier, 24. Murphy cited Criminal Rule 42(h), a rule that says the court shall rule promptly on all motions and that if no opposition is filed, the court can determine if a party has presented sufficient evidence to get the relief requested. Murphy ordered the suppression of all evidence collected, including field sobriety tests, photographs, reports and breath analysis results.

“This is what happens when you don’t keep your deadline,” Poulson said.

At about 1:05 a.m. on June 29, 2013, Homer Police Sgt. Ryan Browning stopped Fourier in her 1987 Subaru as she drove on Pioneer Avenue. In his report, Browning said Fourier’s brake lights appeared to be stuck. Police can pull over a driver for traffic violations like a broken brake or tail light. Browning turned on his lights and sirens, and Fourier stopped. After the stop, Browning also said the car had a loud exhaust. Browning reported the car’s license plates to dispatch, who said the registration had expired. 

In his criminal complaint, Browning said Fourier had an odor of alcohol. He had her perform field sobriety tests, and wrote that she failed some of the tests. Browning alleged Fourier had a preliminary breath test of .10 percent and a DataMaster breath-alcohol test of .12 percent; .08 percent is the amount set by Alaska law for intoxication. Fourier was arrested and taken to the Homer Jail.

In a memorandum supporting his motion to suppress evidence, Poulson said Browning stopped Fourier too quickly. He argued that the officer lacked probable cause to believe her car had an equipment defect. The Subaru’s brake lights worked, and Browning made his judgment too soon, Poulson argued.

“It is not enough for the state to prove that Sgt. Browning was subjectively or honestly mistaken about the condition of Ms. Fourier’s brake lights,” Poulson wrote, citing an Alaska case, State v. Campbell. “For an officer to have probable cause, the officer must have reasonably relied on trustworthy information sufficient to warrant a person of reasonable caution to believe an offense has been or is being committed.”

In the Campbell case, a University of Alaska Anchorage police officer stopped a driver because the car did not have headlights on more than 30 minutes after sunset. In fact, the sun had set 15 minutes earlier. The officer based his decision on an error by a dispatcher that sunset had been an hour earlier.

“The Fourth Amendment and the Alaska Constitution require that the officer make reasonable efforts to confirm or allay his suspicions before taking the additional step of initiating a traffic stop,” Poulson wrote. “Because Sgt. Browning was acting without the requisite authority to conduct a traffic stop, the stop and all derivative evidence must be suppressed.”

Police can make traffic stops based on reasonable suspicion of serious criminal activity, Poulson wrote in his memo, but traffic stops for equipment violations require proof that the officer had probable cause to believe that he saw an offense being committed.

 “This is what it boils down to,” Poulson said in a phone interview. “A detention is a seizure of a person. The court should not encourage the officer to stop first and then develop probable cause. It’s backward.”

Poulson filed a motion to suppress and dismiss on Dec. 16, he said. Under court rules, the district attorney’s office had 10 days to file an opposition to Poulson’s motion or a request for an extension. On Jan. 14, Murphy notified the district attorney’s office that she intended to rule on Poulson’s motion — in effect, granting them an extension to reply. When the state still didn’t file a motion to oppose, on Jan. 23 Murphy granted Poulson’s motion.

Poulson said the district attorney’s office might file a late motion in opposition, but that if so, he will move to strike the motion. He said it’s rare for a court to dismiss a case because of a failure to comply with a filing deadline. Part of the reason for ruling promptly on motions is that when a defense attorney files a motion, it stops the clock regarding the speedy trial rule, Poulson said.

“You have a right to a speedy trial for a reason,” Poulson said. “People’s lives are put on hold. It’s a deterrent to keep the state on their toes. I think she (Murphy) made the right call.”

Homer Police Chief Mark Robl was offered an opportunity to comment on the case, but he said he would decline comment.

Michael Armstrong can be reached at