WINTERROWD v. MUNICIPALITY OF ANCHORAGE, 139 P.3d 590 (Alaska App. 2006)

Ralph Kermit WINTERROWD 2nd, Appellant, v. MUNICIPALITY OF ANCHORAGE,

Appellee.

Nos. A-9233, A-9234.

Court of Appeals of Alaska.

June 23, 2006.

Rehearing Denied July 26, 2006.

  Appeal from the District Court, Third Judicial District,
Anchorage, Jennifer K. Wells, Magistrate.

  Ralph Kermit Winterrowd 2nd, in propria persona, Knik, for the
Appellant.

  Rachel Plumlee, Assistant Municipal Prosecutor, and Frederick
H. Boness, Municipal Attorney, Anchorage, for the Appellee.
Page 591

  Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

                                 OPINION

  MANNHEIMER, Judge.

  On January 3, 2004, and again on October 11, 2004, Ralph Kermit
Winterrowd 2nd was stopped for speeding. On both occasions, the
police asked Winterrowd to produce his driver's license, his
vehicle registration, and proof of motor vehicle insurance.

  During the January 3rd traffic stop, Winterrowd produced his
driver's license, but he did not produce his registration or
proof of insurance. Instead, Winterrowd invoked his privilege
against self-incrimination and his right to the assistance of
counsel under the Fifth Amendment to the United States
Constitution. Because Winterrowd did not produce proof of motor
vehicle insurance, he was cited for violating Section
09.28.030(B)(1) of the Anchorage Municipal Code (failure to carry
proof of motor vehicle insurance).

  During the October 11th traffic stop, Winterrowd produced his
driver's license, but he did not produce his vehicle registration
or proof of insurance. Again, Winterrowd invoked his
Fifth Amendment privilege against self-incrimination and right to
counsel. This time, Winterrowd was cited for failing to produce
proof of motor vehicle insurance upon the demand of a police
officer, AMC 09.28.030(B)(2), and for failing to carry motor
vehicle registration, AMC 09.52.020.

  These three charges were jointly adjudicated in a single bench
trial in the district court. At his trial, Winterrowd argued
that, because he was subjected to a seizure of his person within
the meaning of the Fourth Amendment, and because he thereafter
invoked his privilege against self-incrimination and his rights
to silence and to the assistance of counsel under the
Fifth Amendment, he could not be penalized for failing to produce the
documentation that the officers asked him for. The district court
rejected this argument and found Winterrowd guilty of all three
offenses.

  Winterrowd now appeals his convictions, renewing the
constitutional argument that he presented to the district court.

  Winterrowd is correct that a motorist who is subjected to a
traffic stop is "seized" for Fourth Amendment purposes. However,
not all Fourth Amendment seizures amount to "custody" for
purposes of Miranda v. Arizona.[fn1] That is, not all
Fourth Amendment seizures trigger the Fifth Amendment rights to
silence and to the assistance of counsel recognized in Miranda.

  We addressed this point of law in McNeill v. State,
984 P.2d 5 (Alaska App. 1999):

  Generally, in determining whether a person is in
  custody for Miranda purposes, a court must ask
  whether, "under the circumstances of the police
  interaction with the suspect, . . . a reasonable
  person [would] have felt free to break off the
  interrogation and, depending on the location, either
  leave or ask the police to leave". [quoting Long v.
  State, 837 P.2d 737, 740 (Alaska App. 1992)] . . .
  This wording suggests that Miranda warnings will be
  required whenever a person is "seized" for
  Fourth Amendment purposes, but that is not the law. The
  cases applying Miranda recognize that there are
  some Fourth Amendment seizures of temporary duration
  — most notably, routine traffic stops and other
  investigative stops — in which Miranda warnings are
  not required, even though the person is temporarily
  in custody and the police can properly ignore a
  request that the officers depart and leave the person
  alone.

McNeill, 984 P.2d at 6-7 (emphasis omitted), citing Berkemer
v. McCarty, 468 U.S. 420, 439-440, 104 S.Ct. 3138, 3150,
82 L.Ed.2d 317 (1984) (holding that Miranda does not apply when a
motorist is subjected to roadside questioning during a routine
traffic stop); Blake v. State, 763 P.2d 511, 514-15 (Alaska
App. 1988) (holding that police officers are not required to give
Miranda warnings during an investigative stop unless and until
the initial stop ripens into "custody" as that term is defined in
Miranda jurisprudence). See also Wayne R. LaFave, Search and
Seizure:
Page 592
A Treatise on the Fourth Amendment (4th ed. 2004), § 9.3(b),
Vol. 4, pp. 367-377.

  In his reply briefs, Winterrowd asserts that he is not
attempting to raise a Miranda issue. Instead, Winterrowd
asserts, he is relying on the Fifth Amendment rights to silence
and to the assistance of counsel that the law gives him apart
from Miranda. But in roadside encounters like the ones in these
cases, there is no Fifth Amendment right to silence or to counsel
apart from situations of custodial interrogation as defined in
Miranda jurisprudence. See State v. Garrison, 128 P.3d 741,
747 (Alaska App. 2006) (holding that, because the defendant was
not in custody for Miranda purposes, the police could continue
to question him despite his arguable request for an attorney).

  Because Winterrowd's traffic stops did not constitute "custody"
for Miranda purposes, the police could continue to ask
Winterrowd to produce his vehicle registration and proof of
insurance even after Winterrowd invoked his Fifth Amendment
rights to silence and to the assistance of counsel — because
those rights did not apply in Winterrowd's situation.

  The remaining issue is whether Winterrowd, by invoking his
privilege against self-incrimination, could lawfully refuse the
police officers' demands that he produce his vehicle registration
and proof of insurance. The answer is "no": motorists have no
Fifth Amendment right to refuse authorized police requests for
production of their vehicle registration and proof of insurance.

  See Larkin v. Hartigan, 250 Ill.App.3d 969, 189 Ill.Dec. 630,
620 N.E.2d 598, 602 (1993) ("There is nothing unconstitutional
about requiring a vehicle owner to verify [that] his insurance
sufficiently meets all legal requirements."); People v. Goodin,
257 Mich.App. 425, 668 N.W.2d 392, 395-96 (2003) (motorists have
no Fifth Amendment privilege to refuse to produce their driver's
license, registration, and name and address).

  Accord: State v. Adams, 181 Ariz. 383, 891 P.2d 251, 253-54
(App. 1995); State v. Melemai, 64 Haw. 479, 643 P.2d 541,
545-46 (1982); People v. Lucus, 41 Ill.2d 370, 243 N.E.2d 228,
230-31 (1968); People v. Samuel, 29 N.Y.2d 252,
327 N.Y.S.2d 321, 329-330, 277 N.E.2d 381, 386 (1971); Lamb v. State,
488 P.2d 1295, 1296-97 (Okla.Crim.App. 1971); Commonwealth v. Long,
831 A.2d 737, 747-750 (Pa.Super. 2003); State v. Smyth, 121
R.I. 188, 397 A.2d 497, 499-500 (1979); Banks v. Commonwealth,
217 Va. 527, 230 S.E.2d 256, 257-59 (1976).

  See also California v. Byers, 402 U.S. 424, 427-434,
91 S.Ct. 1535, 1537-1540, 29 L.Ed.2d 9 (1971) (holding that hit-and-run
statutes that require motorists to produce identification do not
violate the Fifth Amendment).

  For these reasons, the district court's judgments are AFFIRMED.

[fn1] 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).