Opinion
Court of Appeals No. A-12127 No. 6354
06-22-2016
ERICA MICHELLE ELISOFF, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Rex Lamont Butler, Attorney at Law, Anchorage, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, 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 authority for any proposition of law. Trial Court No. 3AN-13-3656 CR MEMORANDUM OPINION Appeal from the Superior Court, Third Judicial District, Anchorage, Kevin M. Saxby, Judge. Appearances: Rex Lamont Butler, Attorney at Law, Anchorage, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Erica Michelle Elisoff was convicted of fourth-degree misconduct involving a controlled substance after probation and police officers discovered her in possession of a crack pipe and several bindles of cocaine during a protective sweep of a probationer's residence. Elisoff argues that the superior court should have granted her motions to suppress this evidence because the officers had no legal right to enter the bedroom of the apartment where she was staying or to search her pockets for drugs.
For the reasons explained here, we conclude that, for officer safety reasons, the officers were justified in conducting a protective sweep of the bedroom in which Elisoff was found, that the officers developed probable cause to arrest Elisoff and seize evidence in plain view during that protective sweep, and that the resulting search of Elisoff's pockets was a valid search incident to her arrest. We therefore affirm the decision of the superior court denying Elisoff's motions to suppress.
Facts and proceedings
On April 2, 2013, probation/parole supervisor Robert Carlson conducted a search of a probationer's apartment in Anchorage, accompanied by another probation officer and several police officers. During that search, the officers learned from the probationer, who was also the property manager of the apartment complex, that two probationers were living together in a downstairs apartment. He told the officers that one of the probationers drove a Suburban and was named "Art." (About forty-five minutes earlier, an officer conducting surveillance on the apartment building had observed a man drive up to the apartment complex in a Suburban.)
Because probationers are generally not allowed to live together, and because this situation presented the opportunity for a probation compliance check, Carlson decided to contact the occupants of the downstairs apartment. Accompanied by the police officers, Carlson knocked on the apartment's door and announced himself. After several minutes, Tyrone Jenkins came to the door. Jenkins confirmed that he was on felony probation and that he was living there, and he identified his probation officer.
Carlson noticed that Jenkins was shaking, "really nervous," and that he appeared to be under the influence of drugs. Jenkins's girlfriend, Miranda Bazaldua, also came to the door and also appeared to be under the influence of drugs.
Carlson asked Jenkins if anyone else was in the apartment, but Jenkins did not provide a clear answer. Bazaldua also gave unclear responses when asked the same question, although at one point she said a man named "Art" might be in a back bedroom. (As noted earlier, one of the probationers who allegedly lived in the apartment had been identified as "Art.") The officers then loudly announced themselves several times, directing anyone in the back of the apartment to "make themselves known and to come out." There was no response.
By this point, Carlson later testified, he had decided that officers would be conducting a probation search of Jenkins's apartment. Carlson testified that his primary purpose prior to conducting a search was to "get [the apartment] secured so then we [could] figure out Mr. Jenkins's circumstances on probation and just do our job safely."
Officers then conducted a protective sweep of Jenkins's apartment. During that sweep, the officers opened the door to one of the back bedrooms and found a man and a woman asleep on a couch. They could see that the woman, later identified as Elisoff, was holding a crack pipe in her hand. When the officers managed to rouse Elisoff, she showed signs of being intoxicated, though she did not smell of alcohol. There was drug paraphernalia in plain view on the table in front of the couch.
After Elisoff was handcuffed, Anchorage Police Officer Seth McMillan searched the pockets of Elisoff's sweatshirt and discovered three bindles that he recognized by feel to be typical of drug packaging. McMillan then removed the bindles and identified their contents by sight as powdered and crack cocaine. Based on this evidence, Elisoff was charged with fourth-degree misconduct involving a controlled substance.
AS 11.71.040(a)(3)(A).
Elisoff filed a motion to suppress the evidence against her, arguing that (1) the search of Jenkins's apartment was invalid; (2) even if the search of the apartment was valid, officers exceeded the scope of that search by entering the closed bedroom; and (3) officers had no justification to search Elisoff's person for drugs. In a second motion, Elisoff argued that the search of her person was not a valid search incident to arrest. Following an evidentiary hearing, the superior court denied the motions to suppress. Elisoff was then convicted in a bench trial.
Elisoff appeals the superior court's decision denying her motions to suppress.
Why we uphold the protective sweep of the apartment
On appeal, Elisoff renews her claim that the evidence against her was obtained during an illegal search of Jenkins's apartment. Elisoff concedes that Jenkins's probation conditions authorized warrantless searches of his apartment for drugs or drug paraphernalia. But she argues that the search of the back bedroom was nevertheless invalid because this search occurred before officers had verified Jenkins's probation status, the scope of his probation conditions, or the status of the back bedroom (i.e., whether the bedroom belonged to a roommate or overnight guest).
In Milton v. State, we emphasized the importance of respecting the privacy rights of non-probationers who live with probationers. We therefore held that during a probation search of a residence that is known to be shared by non-probationers, an officer must "reasonably suspect" that the object or area being searched "is owned, controlled, or possessed" by the probationer for the search to be valid. We also warned that "[d]epending upon the facts involved, there may be instances where an officer's failure to inquire, coupled with all of the other relevant facts, would render the suspicion unreasonable and the search invalid."
879 P.2d 1031 (Alaska App. 1994).
Id. at 1034-35.
Id. (quoting People v. Boyd, 224 Cal.App.3d 736, 749 (1990)).
Elisoff now argues that officers exceeded the scope of their authority under the warrantless search condition by going into the back bedroom without asking "even rudimentary questions" to establish who was staying in the back bedroom. She argues that, without this information, the officers lacked an objectively reasonable basis for believing the bedroom fell within the proper scope of a probation search or any other exception to the warrant requirement.
But as the trial court found, the officers were not engaged in a probation search at the time they opened the door to the closed bedroom. Rather, they were engaged in a protective sweep of the premises prior to the anticipated probation search. Unlike a search, a protective sweep is "a quick and limited search of premises" and intended only to protect the safety of police officers and others. A protective sweep is justified when there are "articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the ... scene."
Maryland v. Buie, 494 U.S. 325, 327 (1990).
See Brand v. State, 204 P.3d 383, 385 (Alaska App. 2009) (quoting Buie, 494 U.S. at 327).
At the time the protective sweep occurred in this case, the officers were aware of the following information: (1) two probationers lived in Jenkins's apartment; (2) one of the probationers was named "Art" and drove a Suburban; (3) somebody driving a Suburban had recently entered the apartment complex; (4) the probationer who came to the door was named Tyrone Jenkins, not Art; (5) Jenkins appeared to be under the influence of drugs (a violation of his probation), was "very nervous," and would not give officers clear answers to their questions about whether anyone else was in the apartment; and (6) Jenkins's girlfriend, who also appeared to be under the influence of drugs, was similarly evasive, although at one point said "Art" might be in the back bedroom. Additionally, prior to opening the closed door, the officers had announced their presence loudly "quite a few" times, directing anyone who was in the back of the apartment to come out, but heard no response.
Given these circumstances, we agree with the superior court that the officers were justified in conducting a protective sweep of Jenkins's apartment, and therefore in opening the closed door of the back bedroom to determine whether there was a person inside who could be dangerous to the officers.
See, e.g., United States v. Tapia, 610 F.3d 505, 511 (7th Cir. 2010) (upholding protective sweep where police had "good grounds to believe that potentially dangerous individuals could be in [the defendant's] basement[.]").
When the officers opened the door, they discovered Elisoff and the second probationer, later identified as Arthur Liggon, passed out or asleep on the couch. Elisoff was holding a crack pipe in her hand and there was other drug paraphernalia in plain view on the table in front of the couch. Because the evidence implicating Elisoff was discovered in plain view during the officers' permissible protective sweep, there is no merit to Elisoff's claim that this evidence was illegally seized.
See Reeves v. State, 599 P.2d 727, 738-39 (Alaska 1979).
There is likewise no merit to Elisoff's argument that the subsequent search of her pockets was unlawful. As explained above, when the officers opened the bedroom door, they observed Elisoff asleep on the couch with a crack pipe visible in her hand. When the officers awakened Elisoff, she immediately tried to hide the pipe. Elisoff was groggy and lethargic and had to lean on furniture when she walked, and she appeared to be intoxicated, though she did not smell of alcohol. As the superior court found, these circumstances gave the police probable cause to arrest Elisoff for a drug offense and to search her pockets incident to that arrest. And as the superior court also found, the search of Elisoff's pockets was sufficiently contemporaneous in time to be a valid search incident to arrest. We therefore affirm the superior court's decision denying Elisoff's motions to suppress.
See, e.g., Dollison v. State, 5 P.3d 244, 247 (Alaska App. 2000) (holding that defendant's possession of a crack pipe in his exterior shirt pocket gave police officer sufficient probable cause to believe the defendant unlawfully possessed drugs).
See State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001). --------
We note that, on appeal, Elisoff also complains that she was subjected to a pat-down search by a probation officer who, Elisoff argues, had no jurisdiction to search her because she was not a probationer. We do not address this claim because Elisoff has not argued that any incriminating evidence was obtained as a result of this purportedly illegal search.
Conclusion
The judgment of the superior court is AFFIRMED.