Opinion
Court of Appeals No. A-10504 Trial Court No. 4FA-08-2320 CR No. 5850
05-30-2012
JEREMIAH M. BURGESS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Kelly R. Taylor, Assistant Public Defender, Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge.
Appearances: Kelly R. Taylor, Assistant Public Defender, Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
COATS, Chief Judge.
Jeremiah M. Burgess was convicted of misconduct involving a controlled substance in the fourth degree for possessing a small amount of cocaine. Police officers initially contacted Burgess while they were investigating a report of disorderly conduct. At an evidentiary hearing on Burgess's motion to suppress, the officers testified that they discovered a plastic bag containing cocaine in Burgess's right front pocket after Burgess gave them permission to search his pocket for identification. Superior Court Judge Mark I. Wood, who conducted the evidentiary hearing, found that the State did not establish that Burgess consented to a search of this pocket. But Judge Wood found that, because the police had probable cause to arrest Burgess for disorderly conduct, their search of Burgess's pocket was valid as a search incident to arrest. We reverse Judge Wood's finding because we conclude that, even if the police validly arrested Burgess for disorderly conduct, the search of Burgess's pocket was beyond the proper scope of a search incident to arrest.
AS 11.71.040(a)(3)(A).
Factual and procedural background
On July 11, 2008, at about 12:10 a.m., Officers Dustin Stonecipher and James Miller were dispatched to an apartment complex to investigate a complaint of a physical disturbance. When they approached the residence, they observed through a window that two men, later identified as Jeremiah Burgess and Vaughn Kozevnikoff, were fighting inside. The officers entered the apartment through an unlocked door and separated and handcuffed the two men. Officer Miller explained that, in this kind of situation, the officers have to worry about their safety. Once they detain the people fighting and any threat is eliminated, they question the people involved, "and the handcuffs come off just as easy as they go on."
Officer Stonecipher testified that he asked Burgess for identification, and recalled Burgess saying that he had identification. He recalled that Burgess told them that his license was in his right front pocket and that is where they found it. But he did not recall whether either officer asked if they could retrieve the identification. He stated that he saw a clear plastic baggie protruding from Burgess's right front pants pocket. It protruded about one inch above the pocket. Officer Stonecipher described Burgess as "highly agitated." In order to retrieve the identification, the officers removed the plastic baggie, which contained cocaine.
Officer Miller testified that, after they arrived at the house and separated Burgess and Kozevnikoff, he asked Burgess if he had any identification on him. Burgess stated that he had identification in his right front pants pocket. Officer Miller testified that Burgess gave him permission to take the identification out of the pocket. When he looked in the pocket, Officer Miller stated he saw a clear plastic baggie. He assumed that the baggie would probably contain drugs. He had to remove the baggie in order to get into the pocket to get the identification. When Officer Miller removed the baggie, it was apparent that it contained illegal drugs.
Burgess testified that he was sleeping on his sister's couch when Kozevnikoff, his sister's boyfriend, broke into the house and started fighting with his sister. He fought with Kozevnikoff to protect his sister. When the police arrived, they asked Burgess for identification. He said his identification was normally in his wallet, and he gave them permission to look in the wallet, which was in his back pocket. He stated that the police apparently did not find the identification in the wallet because they kept searching him and apparently found the identification in his right front pocket.
The State charged Burgess with misconduct involving a controlled substance in the fourth degree for possession of cocaine. Burgess argued that the police obtained the cocaine as the result of an illegal search and moved to suppress this evidence. Judge Wood conducted the evidentiary hearing. We summarized above the testimony from the evidentiary hearing. At the conclusion of the hearing, Judge Wood denied Burgess's motion to suppress.
In his findings denying the motion to suppress, Judge Wood concluded that the State had not established that Burgess consented to have the police search his right front pants pocket for identification. He concluded that, although the evidence was clear that Burgess had agreed to let the police look for identification in his wallet, he could not conclude that Burgess had authorized any more extensive search. But Judge Wood concluded that, because the police officers had probable cause to arrest Burgess for disorderly conduct, the search was justified as a search incident to arrest.
Why we conclude Judge Wood erred in determining that the search was justified as a search incident to an arrest for disorderly conduct
A police officer, incident to a lawful arrest, is permitted to search the arrestee for evidence of the crime which could be concealed on a person and to search the person for weapons which could be used against the officer or for effectuating an escape. We first turn to Judge Wood's finding that the police could search Burgess incident to an arrest for disorderly conduct.
Jackson v. State, 791 P.2d 1023, 1024 (Alaska App. 1990).
The State does not suggest that there was any basis for the police to search Burgess for evidence of the offense of disorderly conduct. Perhaps more precisely, the State suggests that any evidence of the offense of disorderly conduct that Burgess might possess would be a weapon. So the question becomes whether the police had valid grounds to search Burgess for weapons and, more particularly, how intrusive a search for weapons they could conduct.
The police did perform a pat-down search of Burgess. It is unclear exactly when this pat-down occurred. Officer Miller testified that, although he did not recall specifically for Burgess's case, whenever he put someone in handcuffs, he routinely performed a pat-down search. Officer Stonecipher testified that he did a weapons search on almost everyone he came into contact with, particularly if there had been a physical altercation or before putting them in his car. This testimony seems to support the inference that the pat-down search might have been conducted immediately after Burgess was handcuffed and before the police removed the bag containing drugs from Burgess's pocket. Judge Wood did not make any findings which would resolve this issue. Officer Stonecipher said that he did not find any hard objects on Burgess when he performed the pat-down search.
Under Alaska law, a search incident to arrest for weapons may extend to "any containers associated with the arrestee's person which may contain a gun, a large knife, or a club." A search for an atypical weapon must be based upon reasonable suspicion that an atypical weapon is present.
Id. at 1028.
Joubert v. State, 977 P.2d 753, 757 (Alaska App. 1999), overruled on other grounds, 20 P.3d 1115 (Alaska 2001); Jackson, 791 P.2d at 1028.
As we have previously stated, it is unclear exactly when the officers conducted the pat-down search of Burgess. But there is no testimony that the police, either before conducting the pat-down search or during that search, discovered or observed anything which would suggest that Burgess possessed any sort of weapon. Therefore, the State did not present any evidence in the trial court which would justify conducting anything more than a typical pat-down search.
The State attempts to circumvent this problem by speculating that the police conducted the pat-down search after discovering the bag containing cocaine. The State argues (internal citations omitted):
Had the police patted Burgess down before removing the identification card that both officers testified was in his right front pocket, they would have felt a thin, hard but partially flexible item in his pocket and would have been justified in removing it from his pocket to ensure it was not a razor blade or other similar weapon.
This is essentially an inevitable discovery argument. In Smith v. State, the Alaska Supreme Court held that, in order to establish inevitable discovery, the prosecution "must establish, first, that certain proper and predictable investigatory procedures would have been utilized in the case at bar, and second, that those procedures would have inevitably resulted in the discovery of the evidence in question." The State neither raised inevitable discovery in the trial court nor presented evidence to support this theory. Therefore, the State's inevitable discovery theory is based almost entirely on speculation rather than on the firm foundation that the Supreme Court required.
948 P.2d 473 (Alaska 1997).
Id. at 480 (emphasis in original) (quoting 5 Wayne R. LaFave, Search & Seizure § 11.4(a), at 248 (3d ed. 1996)).
The State argues that Judge Wood's decision denying Burgess's motion to suppress can be upheld on an independent ground. The State argues that the police had probable cause to arrest Burgess for possession of illegal drugs. If the police had probable cause to arrest Burgess for possession of illegal drugs, they could have searched him for evidence of that crime. The State further points out that both officers testified that they saw a clear plastic baggie sticking out of Burgess's front pants pocket. Both officers testified that, based upon their prior training and experience, a plastic bag in the defendant's front pocket would usually contain illegal drugs. In addition, both officers testified that Burgess appeared to be under the influence of some kind of stimulant. Officer Miller conceded that a person could exhibit similar symptoms from being excited because he had recently engaged in a fight. But he stated that, although the actions would be similar, he thought he could detect the difference between someone under the influence of a stimulant and someone simply excited from a situation.
See McGee v. State, 614 P.2d 800, 805 n.10 (Alaska 1980) (noting that an appellate court may affirm a correct ruling of law by a trial court, if there exist independent grounds to support the trial court's conclusion).
--------
The fact that the officers could observe that Burgess had a plastic bag in his right front pocket and the fact that Miller surmised that Burgess was under the influence of some kind of stimulant simply is not sufficient to establish probable cause to believe that Burgess was currently in possession of illegal drugs. We accordingly reject the State's argument that the police had probable cause to arrest Burgess for possession of illegal drugs. Therefore, we conclude that the police were not authorized to search Burgess incident to this arrest for evidence of possession of illegal drugs. We accordingly conclude that Judge Wood erred in denying Burgess's motion to suppress.
Conclusion
The judgment of the superior court is REVERSED.