USA v. Schmidlkofer

United States v. Schmidlkofer 	1
3:20-cr-00065-TMB-MMS-1
Final R&R on Motion to Suppress
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JASON DONALD SCHMIDLKOFER,
Defendant.
Case No. 3:20-cr-00065-TMB-MMS
FINAL REPORT AND
RECOMMENDATION REGARDING
MOTION TO SUPPRESS EVIDENCE
[DOC. 30]
I. 	MOTION PRESENTED
Defendant Jason Donald Schmidlkofer (“Schmidlkofer”) was charged in a two-
count indictment with (1) felon in possession of a firearm, in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2); and (2) possession of a firearm in furtherance of a federal drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). [Dkt. 2].
Schmidlkofer, through counsel, filed a Motion to Suppress Evidence, seeking to
suppress all evidence obtained from the January 21, 2020 alleged “unlawful stop and
seizure” that led to the current charges. [Dkt. 30 at 1]. In the Motion, Schmidlkofer argues
that when officers blocked in his vehicle, preventing him from leaving, he was seized; and
because they did so without any prior evidence of criminal activity, or other legal basis,
that seizure was illegal; thus all evidence obtained as a result of that seizure must be
suppressed. [Dkt. 30 at 3-4]. Among the items of evidence Schmidlkofer seeks to suppress
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are 	a 	Bersa 	.380 	handgun, 	and 	a 	bag 	containing 	lab-confirmed 	heroin 	and
methamphetamine. [Dkt. 37-1 at 3].
The Government filed a Response in Opposition to the Motion. [Dkt. 37]. In its
opposition, the Government acknowledged a seizure took place when officers blocked in
Schmidlkofer’s vehicle. [Id. at 4]. However, the Government contends that the seizure was
lawful 	based 	on 	three 	independent 	rationales: 	(1) 	the 	reasonable 	suspicion 	that
Schmidlkofer was illegally parked; (2) the reasonable suspicion that Schmidlkofer was
operating under the influence; and (3) the community caretaker doctrine. [Id. at 1].
On March 26, 2021, the Court held an evidentiary hearing on the Motion to
Suppress. [Dkt. 48]. At the evidentiary hearing, the Court indicated any supplemental post-
hearing briefs should be filed by April 9, 2020. [Id.]. The Government filed a Supplemental
Opposition to the Motion to Suppress on April 9, 2020. [Dkt. 54]. On April 10, 2021,
Schmidlkofer filed a Supplemental Brief on Defense Motion to Suppress, along with a
Motion to Accept a Late Filed Supplement Briefing. [Dkts. 55, 56]. The Court accepted
Schmidlkofer’s untimely supplemental brief. [Dkt. 57].
An initial report and recommendation issued on June 4, 2021, recommending denial
of the Motion. [Dkt. 63]. Schmidlkofer filed an objection to the initial report and
recommendation; and the Government subsequently replied to the objection. [Dkts. 64,
65].
For the reasons set forth below, Schmidlkofer’s Motion to Suppress Evidence
should be DENIED.
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II. 	FACTUAL BACKGROUND
On the frigid early morning hours of January 21, 2020, a police dispatcher received
two calls regarding a loud noise on Cope Street in Anchorage.1 [Dkt. 37-2 at 1]. The first
caller indicated that it sounded like a vehicle was having loud engine trouble, as if
“something was about to explode.” [Id.]. At one point during the call, the caller stepped
outside, and the dispatcher was able to hear “what sounded like a train rattling on the
tracks.” [Id.]. According to the caller, the sound was coming from across Cope Street. [Id.].
A second caller advised that it sounded like something was wrong with a car. [Id.].
At 4:47 a.m., Anchorage Police Officer Robinson2 responded to the call and was
sent to 3404 Cope Street. [Id.]. While Robinson was on the way to the area, the dispatcher
contacted Officer Reeves to assist. [Dkt. 51 at 8]. Robinson was first to arrive onto Cope
Street. [Id.]. He proceeded to drive down the street with his windows down, listening for
the source of the loud noise. [Id.].
Robinson noticed a 2000 Gray Dodge Durango parked haphazardly – partially in
the road, blocking the driveway of 3407 Cope Street, and facing the opposite direction of
1 The Government’s Opposition to the Motion to Suppress included weather reports and
meteorological documents showing the temperature in Anchorage was “well below
freezing” on the morning of January 21, 2020. [Dkt. 37-4 at 1-16; Dkt. 44-1]. At the
evidentiary hearing, the parties stipulated to the fact that it was cold outside that morning.
[Dkt. 51 at 4]. Additionally, the WatchGuard footage from Reeves’ car shows Reeves
driving on snow-covered streets. [Evid. Hrng. Ex. 5 at 00:05-00:43].
2 At the evidentiary hearing, Officer Robinson testified to his training and experience:
specifically, he indicated that he knew vehicles make a “dieseling noise” when they run
out of gas, which continues as “the vehicle is trying to siphon the last little bits of gas.”
[Dkt. 51 at 40].
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traffic. [Id. at 9]. Robinson noticed the snow beneath the vehicle had melted away and
believed this meant the vehicle had been previously running for some time.3 [Id.]. Robinson
drove past the vehicle but did not see anyone inside. [Dkt. 51 at 8]. He turned his patrol car
around and drove past the vehicle again. [Id. at 59-20]. At this point, Robinson noticed an
individual, 	later 	identified 	as 	Schmidlkofer, 	in 	the 	driver’s 	seat 	of 	the 	Durango.
Schmidlkofer appeared to be “not conscious” – “sleeping or not alert.” [Id. at 16, 59-60].
Robinson confirmed that the unconscious driver did not have a blanket or sleeping bag
covering him; nor was he wearing a hat.4 [Id. at 36-37]. Robinson pulled in behind the
Durango and parked within an inch of the rear bumper.5 [Id. at 60]. While Reeves was en
route to Cope Street, Robinson asked Reeves to block in the Durango from the front when
she arrived, so that they could “make contact with the driver.” [Id. at 46]. At some point
3 See supra ftnt. 1; officers responded to this call in late-January in Anchorage, Alaska.
The WatchGuard footage from Reeves’ car shows Reeves driving on snow covered streets
and past snow-covered cars before arriving to Cope Street. [Evid. Hrng. Ex. 5 at 00:05-
00:43]. This Court also notes the Durango did not have its exterior lights on in the
WatchGuard footage [Id.]; additionally, Robinson testified to the ignition not running, but
the dashboard lights and radio were on. [Dkt. 51 at 53-55].
4 The lack of warm coverings on the unconscious driver was specifically noted as a concern
to Robinson due to the low temperatures and the way the “person in the car [was] slumped
over [the center console].” [Dkt. 51 at 44].
5 Robinson testified that over his 25-year career, he deals with at least two to three “OUIs,”
or “operating under the influence” calls, a week. [Id. at 17]. He indicated that in those
situations, drivers sometimes get startled after regaining consciousness and attempt to drive
off. [Id. at 19]. Robinson indicated that the driver’s response is a safety concern to
pedestrians and property—including buildings, fences, homes, and other cars. [Id. at 17,
63]. Officer Robinson also testified to his experience in observing individuals suffering
from hypothermia and responses he has seen from startled individuals suffering from
hypothermia. [Id. at 39].
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before Reeves arrived, Robinson also told her that he thought the vehicle had run out of
gas.6 [Dkt. 37-2 at 1].
Reeves arrived onto Cope Street and parked directly in front of the Durango, leaving
enough space for her to efficiently walk in front of the vehicle, but intending to block the
Durango from leaving in a quick manner. [Dkt. 51 at 70; Evid. Hrng. Ex. 5 at 00:58 and
02:39 – 02:407]. A few seconds later, Robinson exited his vehicle and approached the
Durango from the rear driver’s side. [Dkt. 51 at 70, 76; Evid. Hrng. Ex. 5 at 01:11]. Reeves
approached the vehicle from the front passenger side. [Dkt. 51 at 70, 76; Evid. Hrng. Ex.
5 at 01:16]. Robinson observed that Schmidlkofer had his seatbelt on, and although the car
was not running, the key was in the ignition and turned to the on position; “extremely loud”
music was playing inside; and some of the dashboard lights were on. [Dkt. 51 at 22, 77].
Robinson began “pounding” on the driver’s side window. [Dkt. 51 at 23]. A few
seconds later, Schmidlkofer jolted upright and immediately put his hands up. [Evid. Hrng.
Ex. 5 at 01:38; Dkt. 51 at 79]. Schmidlkofer began to make “erratic” movements, reaching
for the gear shift, and then trying to start the vehicle by using the key in the ignition.
[Dkt. 37-1 at 2; 37-2 at 2; Evid. Hrng. Ex. 5 at 01:39]. Schmidlkofer opened the car door
and Robinson stepped into the doorway. [Dkt. 51 at 24; Evid. Hrng. Ex. 5 at 01:46].
6 See discussion supra ftnt 2 regarding Officer Robinson’s knowledge based on his
experience what a vehicle running out of gas sounds like.
7 From 02:39 to 02:40 in the WatchGuard video, Reeves is seen quickly moving from the
passenger side of the Durango to the driver side without manipulating her movements to
get to the other side once a struggle ensued between Robinson and Schmidlkofer.
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Robinson identified himself as a police officer, told Schmidlkofer to calm down, and asked
him to stop “messing” with the ignition. [Dkt. 51 at 24]. Robinson began asking
Schmidlkofer questions, including asking where Schmidlkofer was coming from and
whether Schmidlkofer knew where he was. [Id. at 25]. Schmidlkofer continued making
sudden movements and reaching inside the vehicle. [Id.; Dkt. 51 at 78; Evid. Hrng. Ex. 5
at 02:08-02:20]. Robinson again commanded Schmidlkofer to stop touching the vehicle’s
gear shift and ignition. [Dkt. 51 at 25].
At this point, when Schmidlkofer leaned towards Robinson, Reeves saw the grip of
a handgun on Schmidlkofer’s right hip. [Dkt. 37-2 at 2; Dkt. 51 at 78-79; Evid. Hrng. Ex.
5 at 02:28]. Reeves unholstered her gun, yelled to Robinson that there was a gun, and called
for additional units over the radio. [Id.; Dkt. 37-2 at 2; Dkt. 51 at 78-79]. Approximately
fifty-seven seconds elapsed between the moment Robinson first knocked on the driver
window and when Reeves indicated she saw a firearm on Schmidlkofer’s person. [Evid.
Hrng. Ex. 5 at 01:31-02:28].
After 	hearing 	Reeves’ 	warning, 	Robinson 	drew 	his 	weapon, 	and 	ordered
Schmidlkofer to, “Let me see your hands.” [Dkt. 51 at 26; Evid. Hrng. Ex. 5 at approx.
02:28]. Despite Robinson’s commands to stay in the vehicle, Schmidlkofer forced his way
out of the car, pushing Robinson back. A struggle between them ensued. [Id. at 02:38-
02:48; Dkt. 51 at 27]. Reeves came quickly around from the passenger side to the driver’s
side to assist and avoid a possible crossfire with Robinson on the other side of the Durango.
[Id. at 27, 80; Evid. Hrng. Ex. 5 at 02:38 – 02:40]. Robinson brought Schmidlkofer, who
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was still wrapped in his seatbelt, onto the ground. [Dkt. 37-1 at 2; Dkt. 51 at 80]. Because
Robinson and Reeves could not see the gun, nor Schmidlkofer’s hands, they kept
Schmidlkofer pinned down on the ground. [Dkt. 37-1 at 2]. Another officer arrived and
advised Robinson and Reeves that he could see a handgun underneath the driver’s side of
the car. [Id.]. As other officers arrived on scene, Robinson conducted a search of
Schmidlkofer’s person and found, among other items, a clear plastic bag containing
methamphetamine and heroin. [Id. at 3].
III. 	DISCUSSION.
As established at supra 2, the Government acknowledges that a seizure took place
when officers blocked Schmidlkofer’s Durango, preventing him from leaving. Dkt. 37 at
4; see also U.S. v. Brown, 996 F.3d 998, 1005 (9th Cir. 2021) (“Once [an] officer, by means
of physical force or show of authority, has in some way restrained the liberty of a citizen,
then a seizure has occurred and the requisite level of justification for the seizure must be
shown.”) At issue is the level of justification required for the specific seizure Reeves and
Robinson 	utilized 	with 	Schmidlkofer. 	Schmidlkofer 	contends 	the 	seizure 	must 	be
supported by probable cause since blocking the Durango was tantamount to an arrest8; in
the alternative, Schmidlkofer claims officers Reeves and Robinson did not have enough
8 At the evidentiary hearing, defense counsel continued to argue officers’ use of excessive
force in their seizure of the Durango since it was indistinguishable from a seizure or arrest
of Schmidlkofer. (Dkt. 51 at 47-49).
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articulable facts to reasonably suspect criminal activity was afoot9, as explained below, this
Court disagrees.
A. General Rule of Law.
The Fourth Amendment provides the “right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.
CONST. amend. IV. Generally, officers are required to obtain a warrant based on probable
cause to justify a search or seizure. Terry v. Ohio, 392 U.S. 1, 20 (1968). In Alaska, an
officer may conduct an “investigative stop” of a person upon a “reasonable suspicion that
imminent public danger exists or [that recent] serious harm … was caused by [that]
person.” Coleman v. State, 553 P.2d 40, 43 (Alaska 1976). Coleman’s position stems from
the Supreme Court’s holding in Terry v. Ohio, that “a police officer may[,] in appropriate
circumstances and in an appropriate manner[,] approach a person for purposes of
investigating possibly criminal behavior even though there is no probable cause to make
an arrest.” 392 U.S. at 22.
Law enforcement may impose “[r]estrictions on a person’s freedom of movement
… to maintain the status quo while making an initial inquiry provided[,] the force displayed
is not excessive under the circumstances.” United States v. Thompson, 282 F.3d 673, 678
(9th Cir. 2002) (finding a 15-20 minute delay between a safety inspection being completed
and receipt of a warrants check - while a Coast Guard vessel was tied to defendant’s vessel
9 Dkt. 30 at 3-5.
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- was not an improper seizure, since facts and circumstances surrounding the case support
officers’ reasonable suspicion that criminal activity was potentially afoot.); see Adams v.
Williams, 407 U.S. 143, 146 (1972) (“A brief stop of a suspicious individual, in order to
determine his identity or to maintain the status quo momentarily while obtaining more
information, may be most reasonable in light of the facts known to the officer at the time.”);
see also U.S. v. Brown, 996 F.3d at 1004-5 (reenforcing the theory that an officer “may
briefly stop [a] suspicious person and make reasonable inquiries aimed at confirming or
dispelling [the officer's] suspicions [that criminal activity may be afoot],” but instead of an
initial pat-down search, officers exceeded the scope of a Terry-stop by reaching directly
into defendant’s pocket.) (internal quotations omitted); and also Illinois v. Wardlaw, 528
U.S. 119, 123 (2000) (“[C]onsistent with the Fourth Amendment, [law enforcement may]
conduct a brief, investigatory stop” if the stop is supported by “reasonable, articulable
suspicion that criminal activity is afoot.”).
Reasonable suspicion is based on “specific, articulable facts which, together with
objective and reasonable inferences,” form a basis to suspect that a person is engaged in
criminal activity. Thompson, 282 F.3d at 678 (internal quotations omitted). This standard
may be based on an officer’s experience, specialized training, as well as the officer’s ability
to make inferences from and about the cumulative information available – to include
making reasonable conclusions that may well elude an untrained person. Thompson, 282
F.3d at 678 (upholding reasonable suspicion when officers’ reliance on all the facts
available to them [e.g. expired/no registration for sea fairing vessel, claimed to be
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repairmen but tools on deck looked new and unused, duffle bags similar to those used by
other smugglers, crew lied about the direction they were traveling, lack of verifiable
owner], along with considering officers’ prior experiences and training). Reasonable
suspicion “depends on the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act…[Courts] must permit officers to
make commonsense judgments and inferences about human behavior.” Kansas v. Glover,
140 S. Ct. 1183, 1188 (2020)(internal citations and emphasis omitted); see also U.S. v.
Burkett, 612 F.3d 1103, 1107 (9th Cir. 2010) (upholding reasonable suspicion based on an
officer’s observations of defendant: defendant’s furtive and elusive movements while
driver refused to pull car over immediately; defendant’s use of opposite hand to open door;
and keeping his right hand partially obscured from view and close to his body/pocket of
his coat); see also U.S. v. Choudhry, 461 F.3d 1097, 1100 (9th Cir. 2006). Yet, “officer[s]
must be able to articulate more than an inchoate and unparticularized suspicion or hunch
of criminal activity.” Wardlow, 528 U.S. at 123-24 (internal citations and quotations
omitted) (holding officers may take into consideration nervous and elusive behavior along
with flight in a high crime neighborhood as a bases of reasonable suspicion).
When evaluating a specific set of facts, courts must look at the “totality of the
circumstances” of the case to determine if the detaining officer had “objective and
reasonable” basis for suspecting wrongdoing. Burkett, 612 F.3d at 1107.
Since “reasonable suspicion is a less demanding standard than probable cause and
requires a showing considerably less than preponderance of the evidence,” this Court will
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focus its main analysis on whether officers had reasonable suspicion to block Schmidlkofer
from leaving the scene and whether the officers’ actions fell within the authorized use of
force for a Terry stop - detention. Wardlow, 528 U.S. at 123-24 (internal quotations and
citations omitted). "[T]he critical inquiry is whether the officers diligently pursued a means
of investigation that was likely to confirm or dispel their suspicions quickly, during which
time it was necessary to detain the defendant." Thompson, 282 F.3d at 677 (internal
quotations omitted).
B. Did Officer Robinson have reasonable suspicion to believe Schmidlkofer was
engaged in criminal activity when he directed Officer Reeves to block in the
Durango?
Considering the totality of the circumstances—giving due weight to Robinson’s
observations, and the inferences he made from and about the facts available to him—this
Court, as explained below, concludes that Robinson had reasonable suspicion to believe
criminal activity was afoot when he directed Reeves to block in the Durango, either as an
illegally parked vehicle or a driver operating a vehicle under the influence. [Dkt. 51 at 44-
46]; see Whren v. United States, 517 U.S. 806 (1996); and Choudhry, 461 F.3d 1097 (9th
Cir. 2006). This Court acknowledges that in the initial report and recommendation, it found
that given all of the evidence presented, including Robinson’s testimony at the evidentiary
hearing, it did not appear that a parking violation was the basis for blocking in the vehicle;
and therefore, did not analyze the reasonableness of the seizure under Choudhry. After
reexamination of the case law, testimony, and objections, this Court finds that Whren v.
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U.S., along with Choudhry, and their progeny, are applicable and provide guidance on
Robinson’s reasonable suspicion, as well as the level of seizure executed by both officers
under Terry. 10
Although the circumstances in Burkett, Thompson, and more specifically Whren and
Choudhry, 	are 	facially 	different 	from 	the 	current 	scenario 	of 	an 	unconscious
Schmidlkofer—partially sprawled over the center console of the Durango—the basic
application of how the officers relied on their training, experience, common sense, and
intuition, result in the same finding of reasonable suspicion as the cases referenced.
[Dkt. 51 at 45]; see Burkett, 612 F.3d at 1107; and Thompson, 282 F.3d at 677. Specifically,
both Robinson and Reeves noted the odd manner the Durango was parked, partially
blocking the road and a driveway; and both officers were aware that blocking a driveway
was a traffic violation11. [Dkt. 51 at 44-46]; Whren, 517 U.S. at 810; United States v.
Choudhry, 461 F.3d at 1098.12
10 The Government’s response in Opposition to the Motion to Suppress argued that officers
were authorized to seize Schmidlkofer because he was illegally parked. [Dkt. 37 at 4]. A
traffic violation can provide reasonable suspicion to conduct an investigatory stop. See
United States v. Choudhry, 461 F.3d 1097, 1100 (9th Cir. 2006) (citing Whren v. United
States, 517 U.S. 806, 810 (1996)).
11 Anchorage Municipal Code -9.30.300.
12
parking infractions constitute traffic violations under California's Vehicle
Code and local laws enacted pursuant to the Vehicle Code, and because the
officers had the authority to enforce the particular violation at issue, we hold
that a civil parking violation under California's Vehicle Code falls within the
scope of the Supreme Court's decision in Whren v. United States, 517 U.S.
806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996). Accordingly, we conclude
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The instant analysis differs from that of the initial report and recommendation in
that under Whren, even if an officer had not have enforced a parking violation exactly as
occurred in the instant scenario, a municipal code traffic violation is enough to provide an
officer with probable cause, a standard much higher than reasonable suspicion, to conduct
an investigatory stop. Whren, 517 U.S. at 810 (“As a general matter, the decision to stop
an automobile is reasonable where the police have probable cause to believe that a traffic
violation has occurred.”)
Additionally, before encountering Schmidlkofer, Robinson knew—based on the
information conveyed to him by dispatch—that a vehicle on Cope Street was making loud
noises, as if something was “about to explode.” [Dkt. 37-2 at 1]. Robinson knew, from his
experience and training, that when vehicles run out of gas, they can make a loud “dieseling
noise,” as the car tries to “siphon the last little bits of gas.” [Dkt. 51 at 40]. When he arrived
on Cope Street, Robinson did not hear the “train rattling on the tracks” sound that a caller
described. [Id. at 8]. He did, however, see an unusually parked vehicle blocking a driveway,
partially obstructing the road, and facing the opposite direction of street traffic. [Dkt. 51 at
9-10]. Robinson noticed the snow beneath the vehicle had melted away, which suggested
to him that—even though the car was not running when he arrived—the vehicle had
previously been running for an extended period. [Id. at 9-10, 42]. Those facts, taken as a
that the parking violation provided the officers with reasonable suspicion to
conduct an investigatory stop of the vehicle.
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whole, support Robinson’s inference that the Durango may have run out of gas and was
possibly the vehicle making loud noises on Cope Street.
Once Robinson saw a “man asleep at the wheel,” slumped over the vehicle’s center
console, in an illegally parked car, in the early hours of the morning—when there was
evidence that the car had been recently running and had likely run out of gas— it is entirely
“consistent with [a] hypothesis” that the driver was potentially operating the vehicle while
under the influence, which is in violation of the law, or consistent other criminal activity.
[Dkt. 51 at 46]; see Terry, 392 U.S. at 28; Choudhry, 461 F.3d at 1100 (“Investigatory
traffic stops are akin to the on-the-street encounters addressed in Terry…accordingly, the
same objective standard applies: a police officer may conduct an investigatory traffic stop
if the officer has reasonable suspicion[.]”)(internal quotations and citations omitted)
Given the facts and circumstances surrounding the situation facing Robinson, asking
Reeves to block the Durango so it could not leave was not an exceptionally invasive tactic
for officers to hold the status quo while they assessed the scene. Thompson, 282 F.3d at
677. With the Durango blocking a driveway13, an unconscious driver who possibly was
operating a vehicle while under the influence.14, while the vehicle parked the opposite
13 Blocking the driveway is a violation of the traffic code that is enforceable by the officers
of the Anchorage Police Department.
14 See AS 28.35.030(a)(1). (“A person commits the crime of driving while under the
influence … if the person operates or drives a motor vehicle … while under the influence
of an alcoholic beverage, intoxicating liquor, inhalant, or any controlled substance, singly
or in combination.”). O.U.I. is a violation of Alaska Statute and a Class A misdemeanor.
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direction of traffic, and partially blocking the road15, and even though Robinson admitted
that he “[had] no idea if” Schmidlkofer was in fact impaired by alcohol or drugs; or if the
vehicle was entirely disabled16; reasonable suspicion requires merely a “minimal level of
objective justification.” Wardlow, 528 U.S. at 123; see Thompson, 282 F.3d at 679.
Weighing the totality of the circumstances, it cannot be said that Robinson had “a
mere hunch” of illegal activity, rather there were enough indicators to provide Robinson
with reasonable suspicion that something was amiss. See Thompson, F.3d at 678; Burkett,
612 F.3d at 1107. As the Supreme Court has noted, “the specific content and incidents of
[the Fourth Amendment] right must be shaped by the context in which it is asserted. For
what the Constitution forbids is not all searches and seizures, but unreasonable searches
and 	seizures.’ 	Terry, 	392 	U.S. 	at 	9 	(internal 	citations 	omitted). 	The 	seizure 	of
Schmidlkofer in the circumstances surrounding Officer Robinson’s and Reeves’ contact
with Schmidlkofer are not, in this Court’s view, unreasonable.
15 When reviewing the video, this Court cannot determine if the Durango was more than
the allocated “wheels parallel to and within 18 inches of the curb or roadway” Anchorage
Municipal Code 9.30.180(B); or if the Durango specifically left “less than 20 feet of
roadway available for free movement of vehicular traffic.” See Anchorage Municipal
Code 9.30.040 - Parking not to obstruct traffic - “No person shall park any vehicle upon
a street other than an alley in such manner or under such conditions as to leave available
less than 20 feet of roadway available for free movement of vehicular traffic.”
16 See Anchorage Municipal Code – Chapter 9.30.
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C. Was blocking Schmidlkofer’s vehicle an excessive use of force that outweighs the
governmental interest in protecting the community from a possible driver under the
influence?
The reasonableness of a seizure concerns (1) the level of suspicion officers
possessed to justify their intrusion and (2) the manner in which a seizure is conducted.
Brown, 996 F.3d at 100617. Having determined that there was reasonable suspicion for the
seizure, this Court now addresses the manner in which the seizure was conducted, and as
discussed below, concludes that blocking in the Durango was not “excessively forceful,”
nor tantamount to an arrest. Adams, 407 U.S. 143, 148 (“Under these circumstances the
policeman's action in reaching to the spot where the gun was thought to be hidden
constituted a limited intrusion designed to insure his safety, and we conclude that it was
reasonable.”) Although Adams considers information from a reliable informant in its
analysis of whether the level of intrusion was justified under Terry, this Court does not
give weight to the two 911 calls that proceeded the seizure of Schmidlkofer; rather this
Court views the actions of Robinson and Reeves as reasonable in light of the circumstances.
When Robinson asked Reeves to block in the Durango, Robinson believed that
Schmidlkofer—who was unconscious—was possibly impaired by alcohol or suffering a
17
In distinguishing between a Terry stop and a full-blown arrest, we consider
whether a reasonable person would believe that he or she is being subjected
to more than a temporary detention, as well as the justification for the use of
such tactics, i.e., whether the officer had sufficient basis to fear for his safety
to warrant the intrusiveness of the action taken[.] (internal citations and
quotations omitted)
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medical 	emergency.18 	“[D]raw[ing] 	on 	[his] 	experience 	and 	specialized 	training,”
Robinson knew that unconscious drivers are sometimes startled after being woken up and
some try to flee—placing pedestrians, homes, vehicles, and themselves in danger. Arvizu,
534 U.S. at 273. This Court finds it credible that Robinson, given the “facts known to [him]
at the time,” believed blocking in Schmidlkofer’s vehicle was necessary to prevent possible
harm to the community and to Schmidlkofer. See Adams, 407 U.S. at 146. In Whren, the
Supreme Court “held that a traffic violation was sufficient to justify an investigatory stop,
regardless of whether (i) the violation was merely pretextual, (ii) the stop departed from
the regular practice of a particular precinct, or (iii) the violation was common and
insignificant.” Choudhry, 461 F.3d at 1102 (citing Whren, 517 U.S. at 811-12, 814-15,
818-19). Any intrusion of Schmidlkofer’s Fourth Amendment rights that resulted from
blocking in his vehicle while he was unconscious was not unreasonable, nor excessive.
Because the officers had reasonable suspicion under the totality of the circumstances
to seize the Durango long enough to conduct further investigation, and the manner in which
the seizure as conducted was reasonable, the Court finds no violation of Schmidlkofer’s
Fourth Amendment rights.
18 “[F]rom what I observed, this is what we call a man asleep at the wheel. I have no idea
if he's impaired by alcohol, if he's had a heart attack, if this is a diabetic issue. The concern
is, is when I wake this person up, what is this person going to do.” [Dkt. 51 at 46].
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IV. 	OBJECTIONS
After 	the 	initial 	report 	and 	recommendation, 	Schmidlkofer 	objected 	to 	the
following: 1) the Court’s factual findings that Schmidlkofer’s Durango was blocking the
driveway and/or part of the street; the use of the word “unconscious” instead of stating
Schmidlkofer was “not conscious”; and the factual reasonings behind Robinson’s thought
process for blocking in the vehicle; 2) the Court’s legal analysis for blocking in a vehicle
and its failure to use cases cited by defendant’s motion and supplemental; the Court’s use
of Guzman-Padilla as authority, since it involves the border patrol/”extended border search
doctrine” and should not be applicable for seizure cases; and the applicability of the
community care taker doctrine and/or the use of the 911 calls as a basis for “pinning
[Schmidlkofer] in.” [Dkt. 64 at 1-5].
First, the factual inferences and findings this Court made: The vehicle was blocking
the driveway, uncontroverted testimony from Robinson established this. Additionally, the
statement that the vehicle was blocking part of the road: reviewing the in-camera video as
well as the testimony from both officers, this Court stands by the determination that the
Durango’s back end was further in the road than the front hood. Since the road was covered
in snow, it is difficult to determine the exact width of the road, but there are no other
vehicles parked on either side of Cope Street. Cope Street is a side street and it is evident
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that two vehicles would not have been able to pass by the “parked” Durango at the same
time.19
The second objection is to the Court using the term “unconscious” instead of “asleep
or not conscious.” This objection is frivolous. The most authoritative work on the use of
modern English provides that “unconscious” has the sense of “not having knowledge or
awareness of a fact or circumstance; unaware, heedless; unwitting” or “not having the
faculty of consciousness”20. Black’s Law Dictionary provides the following definition of
“unconscious”: “Without awareness; not conscious”21 (emphasis added). As a matter of
common sense and common usage, “un-“ is a prefix which simply means “not”, e.g.:
unbeatable, unbelievable, unstoppable. Thus “unconscious” and “not conscious” are
synonyms, and the objection is without merit.
As to the defense’s use of cases specifically referenced in the initial Motion,
supplemental filing, and reiterated in the objection: This Court found the cases inapposite
and outside the scope of the facts presented. This Court did take into consideration the
objection towards its use of “extended border search doctrine” cases and the community
care doctrine analysis; hence the deletion of such cases and section. As such, the Court
19 Anchorage Municipal Code: 9.30.040 - Parking not to obstruct traffic. “No person shall
park any vehicle upon a street other than an alley in such manner or under such conditions
as to leave available less than 20 feet of roadway available for free movement of vehicular
traffic.”
20 See, Oxford English Dictionary,
https://www.oed.com/view/Entry/210776?redirectedFrom=unconscious#eid. Last visited,
June 29, 2021.
21 Black’s Law Dictionary, 10 th Ed.
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assessed 	the 	objections 	and 	incorporated 	them 	fully 	into 	this 	Final 	Report 	and
Recommendation.
V. 	CONCLUSION
In sum, this Court recommends that the District Court DENY the Motion to
Suppress at Docket 30.
DATED this 29th day of June 2021, at Anchorage, Alaska.
s/ Matthew M. Scoble
United States Magistrate Judge
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