Opinion
Court of Appeals No. A-10537 Trial Court No. 3AN-07-3817 Cr No. 5790
01-11-2012
NATHANIEL HICKS JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Andrew Steiner, Bend, Oregon, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, 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.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District,
Anchorage, Philip R. Volland, Judge.
Appearances: Andrew Steiner, Bend, Oregon, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and Daniel S.
Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
MANNHEIMER, Judge.
Nathaniel Hicks Jr. was convicted of third-degree controlled substance misconduct (possession of cocaine with intent to distribute), based on evidence that the police discovered when they searched Hicks's pantleg during a traffic stop. Hicks contends that this search was unlawful, and that the cocaine discovered as a result of the search should be suppressed.
For the reasons explained in this opinion, we conclude that the search was lawful, and we therefore affirm Hicks's conviction.
Underlying facts
On the morning of April 14, 2007, Anchorage Police Officer Randy A. Adair was patrolling in the Spenard neighborhood of Anchorage when he saw a car carrying a passenger who resembled a felony suspect whom Adair had been looking for. Adair followed the vehicle, and he noticed that the passenger was not wearing a seatbelt.
Events began to unfold when the driver of the vehicle failed to stop at a stop sign. Adair pulled the car over for this violation. When Adair contacted the driver, he discovered that the driver did not have vehicle insurance, so Adair prepared to impound the vehicle. Because the car had two occupants, Adair called for Officer Ken Bushue to assist him.
Adair placed the driver in handcuffs and put him in the back of the patrol car. During this time, according to Adair, the passenger in the car became "extremely upset" and "angry" about the car being stopped. The passenger — who turned out to be Hicks — claimed that Adair was harassing the occupants of the car, and he asserted that Adair had made the traffic stop solely because both occupants of the car were black.
Officer Bushue told Hicks that the car was going to be impounded, and that Hicks was free to leave or, alternatively, to remain at the scene and call someone else for a ride. As Bushue was explaining the situation, Hicks started digging into a backpack that was sitting in front of him on the floor of the car. Bushue became concerned that Hicks might have a weapon in the backpack, so he told Hicks not to dig into the backpack. Hicks stopped, but (according to Bushue) "his hands kept moving back towards the bag". At this point, Bushue asked Hicks to step out of the vehicle and to leave his bag in the car. Bushue explained to Hicks that Hicks could have the bag after Bushue made sure that Hicks did not have any weapons.
Hicks got out of the car, but then he started reaching into his pockets. Bushue twice told Hicks to keep his hands out of his pockets, but Hicks did not comply. In response, Bushue grabbed one of Hicks's arms and Adair grabbed the other. Bushue then conducted a pat-down search for weapons.
Hicks told the officers that he was not carrying any weapons, but the officers discovered a retractable box cutter knife in Hicks's waistband. After this knife was found, the officers continued their search for weapons. As part of this search, Bushue lifted up Hicks's right pant leg. When he did so, he saw a plastic bag protruding from the top of Hicks's boot, and this bag appeared to contain cocaine. Bushue also found two large rocks of crack cocaine wrapped in a paper towel inside Hicks's boot.
Based on the discovery of the cocaine, Hicks was indicted for third-degree controlled substance misconduct.
Hicks's assertion that he was unlawfully seized when the police began their pat-down search of his person
Hicks was riding as a passenger in a vehicle that was lawfully stopped by the police for a traffic violation (disobeying a stop sign). Hicks concedes that the stop of the vehicle was lawful, and he concedes that the police could lawfully order him to get out of the car. Citing this Court's decision in Castle v. State, Hicks argues that, because he was a passenger in a vehicle that was stopped only for a traffic violation, he was free to leave if he chose — and that the police officers therefore committed an unlawful seizure and search when they grabbed his arms and subjected him to a pat-down search.
999 P.2d 169, 173 (Alaska App. 2000).
But as this Court mentioned in Castle, "[there are] circumstances in which a passenger's sudden movements might raise a reasonable fear of imminent assault, thus justifying an officer in frisking the passenger or in ordering the passenger to remain where the officer can observe and control them." Id., 999 P.2d at 174. In Hicks's case, the police officers' decision to conduct the pat-down search was prompted by — and justified by — Hicks's series of actions following the traffic stop.
As we have already noted, Officer Bushue explained to Hicks that the car was going to be impounded, and that Hicks was free to leave or, alternatively, to remain at the scene and call someone else for a ride. While Bushue was explaining this, Hicks began to dig into a backpack that was in front of him on the floor of the car — an action that caused Bushue to be concerned that Hicks might have a weapon in the backpack. When Bushue told Hicks not to dig into the backpack, Hicks stopped, but he kept moving his hands toward the backpack. At this point, Bushue asked Hicks to step out of the vehicle and to leave the pack in the car.
Hicks got out of the car, but then he started reaching into his pockets. Bushue twice told Hicks to keep his hands out of his pockets, but Hicks did not comply.
At this point, the two officers grabbed Hicks's arms, and Bushue began to conduct the pat-down search of Hicks's person.
In Erickson v. State, we discussed the test that governs whether the police can conduct a pat-down search of a person who has been stopped for a "legitimate non-criminal reason" — such as a passenger in a car that has been stopped for a traffic violation. Among the circumstances that can justify a pat-down search, we listed a person's "otherwise inexplicable sudden movement toward a pocket or other place where a weapon could be concealed", as well as a person's "otherwise inexplicable failure to remove a hand from a pocket". 141 P.3d at 360-61, quoting Wayne R. LaFave, Search and Seizure (4th ed. 2004), § 9.6(a), Vol. 4 at 627-630.
141 P.3d 356 (Alaska App. 2006).
As we noted in Erickson, the Alaska Supreme Court's decision in State v. Wagar, 79 P.3d 644 (Alaska 2003), is consistent with this approach. In Wagar, a state trooper approached a couple in a parked car because he had been informed by witnesses that the occupants of the car appeared to be using cocaine. When the trooper approached the car, one of the occupants — Wagar — got out of the car. Even though the trooper told Wagar not to put his hands in his pockets, Wagar put his hands in his pockets and then turned sideways to the trooper, thus concealing one side of his body from the trooper's view. Based on these circumstances, the supreme court held that the trooper was justified in conducting a pat-down search of Wagar's person.
Ibid.
Id. at 650.
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Analyzing the facts of Hicks's case under the Erickson test, and comparing the facts of Hicks's case to the facts of Wagar, we conclude that the police acted lawfully when they temporarily seized Hicks to conduct a pat-down search of his person.
Hicks's assertion that the police exceeded the lawful scope of a pat-down search when they lifted Hicks's pant leg to visually examine the top of his footgear
When Officer Bushue conducted the pat-down search of Hicks's person, he lifted the leg of Hicks's jeans to gain access to the top of Hicks's boot — an action that led to the discovery of cocaine. Bushue offered no particular justification for doing this; he testified that the officers in his department "typically" lifted up a person's pant legs when conducting pat-down searches.
There is a division of judicial authority on the question of whether, during a pat-down search, police officers must confine their efforts to the external surfaces of the person's clothing in the absence of a case-specific justification for lifting the person's outer clothing (or otherwise moving it aside) to facilitate the pat-down. Hicks argues that a case-specific justification is needed; he further argues that, because there was no justification in his case, the police exceeded the bounds of their authority when they lifted his pant leg and discovered the cocaine.
We conclude that the facts of Hicks's case do not require us to decide whether, as a general matter, the police need a case-specific justification for lifting or moving a person's outer clothing during a pat-down search. This is because, even if case-specific justification is needed, the facts of Hicks's case provided the needed justification.
When the officers began their pat-down search, they asked Hicks if he was carrying any weapons, and Hicks declared that he had no weapons. The officers then discovered a retractable box cutter knife in Hicks's waistband. Thus, the officers could reasonably conclude that Hicks had lied to them about whether he was carrying weapons. This circumstance provided sufficient justification for the officers to engage in the additional intrusion of lifting Hicks's pant leg in a continued search for weapons.
Conclusion
For the reasons explained here, the search of Hicks's person was lawful. Accordingly, the judgement of the superior court is AFFIRMED.