Opinion
Court of Appeals No. A-9080.
April 16, 2008.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge, Trial Court No. 4FA-04-959 Cr.
Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage (opening brief), and George J. Dozier Jr., Eagle River (reply brief and response to the superior court's supplemental findings), for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez and Talis J. Colberg, Attorneys General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Alaska State Troopers served two arrest warrants on James B. Haynes, each commanding Haynes's arrest for failure to appear. Preparatory to taking custody of Haynes, the troopers conducted a pat-down search of his clothing. During this search, the troopers pulled a clear plastic bag and two small closed containers from Haynes's right-front pants pocket. The clear plastic bag contained a white powder that appeared to be cocaine. The troopers then opened the small containers and found that they contained crack cocaine. Based on these discoveries, Haynes was indicted for third-degree misconduct involving a controlled substance (possession of cocaine with intent to distribute).
AS 11.71.030(a)(1).
Following his indictment, Haynes asked the superior court to suppress the evidence of his drug possession, arguing that it was the fruit of an unlawful search. Superior Court Judge Mark I. Wood held an evidentiary hearing on the legality of the search — and, based on the testimony presented at that hearing, the judge denied Haynes's motion to suppress. Judge Wood concluded that the troopers' pat-down search of Haynes's pockets was proper, and that the troopers' act of removing and examining the contents of Haynes's right-front pants pocket was justified by what the troopers felt during their initial pat-down of the pocket.
After Judge Wood upheld the search, Haynes entered a Cooksey plea to one count of fourth-degree controlled substance misconduct, preserving his right to challenge the superior court's denial of his suppression motion.
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
The testimony of Trooper Investigator Jesse L. Carson, viewed in the light most favorable to the State, provided sufficient justification for the search of Haynes's pocket.
Carson testified that, when he patted Haynes's pocket, he discovered that the pocket was tightly packed with several objects. The pocket was so full and stretched so tight that Carson was unable to tell exactly what was in the pocket. Carson stated that he was able to feel "a couple hard containers" in the pocket, and that he could hear the rustle of what seemed to be a plastic bag, but he could not tell what else might be hidden in this hard, bulky mass. Carson testified that the bulk in Haynes's pocket was large enough to conceal a knife.
Because Carson was unable to tell what was in Haynes's pocket, he reached into the pocket and removed its contents. All of the items in the pocket came out together because they were "all kind of intertwined". One of the items was a clear plastic bag containing a white powdery substance that appeared to be cocaine. The discovery of this white powder led the troopers to open the other containers from Haynes's pocket, thus uncovering the crack cocaine.
This testimony, if believed, provided justification for the trooper's decision to remove the items from Haynes's right-front pants pocket. The troopers were about to take Haynes into custody on two arrest warrants. Accordingly, the troopers were authorized to pat Haynes down to see if he was carrying weapons. Carson testified that Haynes's pants pocket was stuffed full of items. The bulky mass in the pocket was packed so tightly that it was impossible to tell what was in the pocket, and the bulky mass was big enough to conceal a knife. Under such circumstances, the troopers would be authorized to remove this bulky mass from Haynes's pocket for closer inspection. Once they did so, the powder cocaine in the plastic bag was in plain view. This discovery, in turn, provided probable cause to arrest Haynes — thus authorizing the troopers to search the remaining containers taken from Haynes's pocket for evidence of this crime.
See Zehrung v. State, 569 P.2d 189, 199 n. 39 (Alaska 1977).
See State v. Joubert, 20 P.3d 1115, 1118-19 (Alaska 2001); Uptegraft v. State, 621 P.2d 5, 9 (Alaska 1979).
But when Judge Wood issued his ruling upholding these searches, he misstated or mischaracterized Investigator Carson's testimony — by incorrectly stating that Carson had testified that "[the hard objects in the pocket] felt like weapons". Carson did not, in fact, say this. Rather, as explained above, Carson testified that he could not tell whether the hard, bulky mass in the pocket contained a weapon.
Because of this discrepancy between Investigator Carson's testimony and Judge Wood's findings based on this testimony, we remanded this case to the superior court and directed Judge Wood to reconsider his ruling.
On remand, Judge Wood agreed that his initial characterization of Carson's testimony was wrong, and that this Court had correctly characterized Carson's testimony in our opinion when we described Carson as testifying that the bulky mass in Haynes's pocket was so large and tightly packed that it could potentially have contained a weapon as big as a knife, and that it was impossible to ascertain the precise contents of this tightly packed, bulky mass without removing it from Haynes's pocket.
However, Judge Wood still concluded that Carson's testimony (viewed in this manner) supported the search. This Court had already reached the same conclusion. In our prior opinion in this case, we stated that "[Carson's] testimony, if believed, provide[d] justification for the trooper's decision to remove the items from Haynes's . . . pocket" — and that, "if the troopers were authorized to remove the contents of the pocket for inspection, the lawfulness of their ensuing searches is apparent." Haynes v. State, Alaska App. Memorandum Opinion No. 5231 (June 20, 2007), slip opinion at 3; 2007 WL 1793157 at *1-2.
Accordingly, the judgement of the superior court is AFFIRMED.