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THE COURT OF APPEALS OF THE STATE OF ALASKA
RONALD WILBURN, )
) Court of Appeals No. A-3337
Appellant, ) Trial Court No. 4FA-S89-860CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1151 - August 9, 1991]
Appellee. )
)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Jay Hodges, Judge.
Appearances: Marcia E. Holland, Assistant Public
Defender, and John B. Salemi, Public Defender,
Anchorage, for Appellant. Valerie Van Brocklin,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Charles
E. Cole, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
COATS, Judge.
Ronald Wilburn was convicted, based upon his plea of no
contest, of misconduct involving a controlled substance in the
fourth degree, a class C felony. AS 11.71.040(a)(3)(A). In
entering his no contest plea, Wilburn reserved his right to raise
an appellate issue. Cooksey v. State, 524 P.2d 1251 (Alaska
1974). Wilburn now appeals, arguing that Superior Court Judge
Jay Hodges erred in denying his motions to suppress evidence. We
affirm.
On April 2, 1989, Ed Willis, a retired Fairbanks police
officer, saw a man sitting in a car in a parking lot. The man
was later identified as Wilburn. Willis saw Wilburn use items
and engage in activities that led him to believe that Wilburn was
using illegal drugs. Willis then called the Fairbanks Police
Department and reported his observations.
Officer David Kendrick received a dispatch to
investigate this situation. The dispatcher told Kendrick that
the car was parked against a bar, Tommy's Elbow Room, and was
pointed outward. Kendrick testified that he could not recall if
the dispatcher gave him a physical description of the man in the
car. He also did not recall whether the dispatcher gave him a
description of the car.
When Kendrick arrived at the parking lot, he saw
Wilburn in his car. As Kendrick approached the car, he saw
Wilburn sitting in the driver's seat. Wilburn was "moving
rapidly around the driver's seat area." He was moving his hands
in and out of his pocket, and was looking up and back down very
quickly. Kendrick saw smoke coming out of the car, and some
ashes that were "kind of floating in the air." He originally
assumed that Wilburn was smoking marijuana, but when he did not
smell the odor of marijuana, he suspected that Wilburn was
smoking "crack" cocaine. As Kendrick approached the car, he saw
a razor blade, lighter, burnt matches and burnt material on the
passenger's side of the car.
Officer Nancy
Coffey was also
dispatched as a back-
up unit. When she
arrived, Kendrick
was talking to
Wilburn, who was
still seated in the
driver's seat.
Coffey went to the
passenger's side of
the car. In the
front of the car,
she saw burnt
matches, some small
rags with burnt,
singed edges, and a
lighter. She also
saw a film canister
in the back seat
area.
Kendrick asked Wilburn to get out of the car. Wilburn
was fidgeting and appeared to be nervous. Kendrick testified
that he did not believe, at that time, that he had probable cause
to arrest Wilburn for the use of drugs. Kendrick told Wilburn
that he was going to pat him down; Kendrick testified that he
searched Wilburn for weapons and/or evidence of drug use.
When Kendrick went to do the pat-down search, Wilburn
put his hands in his pockets. Wilburn told both officers that he
was nervous, that he needed a minute to calm down, and had just
smoked a little "pot." The officers told him that there was no
rush, they only wanted him to take his hands out of his pockets
so they could conduct a pat-down search. Wilburn's fist was
clenched inside of his pocket.
Wilburn did not take his hands from his pockets.
Kendrick suggested that they place Wilburn in the back seat of
the patrol car. When they reached the patrol car, Wilburn became
extremely nervous. He was trying to pull away from the officers,
stating that he was nervous and needed to calm down, and was
turning his head back and forth. Coffey testified that Wilburn
was a strong man and difficult to control.
When they reached the patrol car, Kendrick was able to
get Wilburn's left hand out of his pocket. Something fell out of
his hand, and Kendrick put a handcuff on that arm in order to
control Wilburn. The item which fell on the ground was a
mouthpiece to a pipe. Wilburn's right hand was still in his
pocket. When he finally took his hand out, his fist was still
clenched. Wilburn refused to open his hand. When Coffey smashed
his knuckles with her cubaton, Wilburn opened his hand and a
metal pipe fell to the ground. Wilburn was then handcuffed, and
placed in the back of the patrol car.
The pipe and mouthpiece contained no marijuana; there
was a white residue in the pipe. The pipe looked like the type
which was used for smoking crack. At that point, Kendrick
testified that he believed he had probable cause to arrest
Wilburn; however, he did not formally arrest Wilburn at that
time.
After putting Wilburn in the patrol car, the officers
returned to his car. They again saw the items in the front seat.
They opened the back door of the car and saw a glove on the floor
behind the front seat. This glove was not visible without
opening the car door. Coffey testified that it appeared to be
some type of winter gear; Kendrick recognized it as a glove.
Kendrick also saw a film container on the back seat.
The glove was on the floorboard behind the front seat
within arm's reach of Wilburn in the driver's seat. When
Kendrick picked up the glove, it was apparent that it was full of
items. Kendrick emptied the glove. It contained a film
container with white powder in it, a lighter, matches, a piece of
playing card, some stocking, a pen with the internal ink portion
removed (similar to items used to inhale cocaine), some steel
wool, a piece of paper, a small coke spoon, and two glass vials.
Kendrick testified that these items constituted a "coke kit."
Wilburn and the seized evidence were taken to the
police station. At the police station, Wilburn was arrested for
possession of cocaine. Kendrick then field tested some of the
items seized to determine if they contained drugs. The test
results were negative. Kendrick called the district attorney's
office to ask how to proceed with this case. Assistant District
Attorney Bill Murphree advised Kendrick to go ahead with the
arrest. Later, laboratory tests on the brass pipe, the film
canister, the two glass tubes and the small coke spoon indicated
the presence of cocaine.
Wilburn was indicted for one count of possession of
cocaine in violation of AS 11.71.040(a)(3)(A). Wilburn filed
motions to suppress the pipe and the items found in the glove, on
the grounds that the police illegally subjected him to a pat-down
search and illegally seized the green glove without a warrant.
Judge Hodges denied the motions to suppress.
Judge Hodges found that, under the circumstances, the
initial pat-down was reasonable. The court stated that the
circumstances making it reasonable were that "someone who is
utilizing drugs and a motor vehicle constitutes an immediate
danger -- or, a potential immediate danger to the public." Judge
Hodges stated that, after the pipe was discovered, the police had
sufficient grounds to arrest Wilburn. Although Wilburn was not
formally placed under arrest at this time, the court found that
the police in effect arrested him when they placed him in the
police car. The court found that the police seizure of the glove
and its contents was reasonable under the circumstances.
Wilburn subsequently entered a Cooksey plea to the
charge. At the change of plea hearing, there was some discussion
as to which motions the state agreed would be clearly dispositive
of the case. Although the dialogue is somewhat confusing, it
seems that the parties agreed that the state would proceed with
the charges against Wilburn only if it could introduce the
cocaine found both in the pipe and in the items discovered in the
car following Wilburn's arrest. At the hearing, the state agreed
it would not proceed with a charge against Wilburn if the state
could only admit the amount of cocaine found in the pipe. This
appeal followed.
On appeal, the state argues that under Oveson v.
Anchorage, 574 P.2d 801 (Alaska 1978) and Cooksey, 524 P.2d at 40
(Alaska 1974), this court should dismiss this case for lack of
jurisdiction because the suppression issues preserved for appeal
are not clearly dispositive of the case.1
The state points out that only the first issue --
Wilburn's claim that the pat-down search was illegal -- is
dispositive of the case. Assuming that the pat-down was legal,
the record does not show that the state would be unable to
proceed against Wilburn based only upon the cocaine in the pipe,
even if the police search of Wilburn's car and the items in the
car was improper. The state therefore argues that Wilburn may
not appeal his claim concerning the car search because that issue
is not dispositive.
The state's argument brings us to a recurring issue.
We frequently find that the state represents in the trial court,
at the entry of the defendant's plea, that the issue which the
defendant wishes to preserve is dispositive under Oveson.
However, later on appeal, the state appellate division contends
that we should dismiss the appeal because the record does not
show that the issue is dispositive.
In the instant case, we agree with the state that
the issue concerning the legality of the pat-down search is
dispositive, but that the issue concerning whether the police
could search the car is not. However, under the circumstances of
this case, we believe that we should grant a petition for review
as to the second issue and decide it. It appears to us that this
will advance the litigation in this case, particularly since it
appears that we must decide the first issue since it is
dispositive. The issues are fully briefed, and the case has been
considerably delayed. We feel that the state has little ground
to protest, having helped create the current situation by
originally agreeing that the issues in question were dispositive,
and then taking a contrary position on appeal.
Wilburn first claims that Judge Hodges erred in finding
that Kendrick's and Coffey's pat-down search was a valid search
pursuant to an investigatory stop. On appeal of a denial of a
suppression motion, this court must view the evidence in the
light most favorable to the prevailing party. Ahkivgak v. State,
730 P.2d 168, 171 (Alaska App. 1986). We will reverse the trial
court's factual findings only if they are clearly erroneous. Id.
Reversal is proper only where there is no substantial evidence
supporting the trial court's findings. Id. As to disputed
factual issues which are not expressly resolved by findings of
the trial court, this court must view the evidence in the record
in the light most favorable to the prevailing party. Hubert v.
State, 638 P.2d 677, 683 (Alaska App. 1981). To the extent that
Wilburn does not dispute the facts, but merely argues that they
constitute an illegal pat-down or frisk, his argument presents a
question of law on which this court is entitled to make an
independent evaluation. Juneby v. State, 641 P.2d 823, 834
(Alaska App. 1982).
According to the record, the dispatcher informed
Kendrick that someone "was watching a subject sitting in a car
and [the subject] appeared as though he was using some type of
drugs." Although the witness who reported this incident to the
police was a retired police officer, it is not clear from the
record that the arresting officers were aware of this fact.
When Kendrick approached Wilburn's car, he saw Wilburn
shifting around, and saw smoke and ashes coming out of the car.
The officers saw the following items on the passenger side of the
car: burnt matches, some cloth pieces with burnt, singed edges, a
lighter, and a razor blade. The police did not directly testify
at the suppression hearing as to the significance of these items.
However, Kendrick later testified that the items found in the
glove -- a film container with "white powder in it, a lighter,
some matches, a piece of playing card, some stocking, a pen, some
steel wool items, and piece of paper -- were used to consume
cocaine." Because the items in the glove some of the items the
police saw on the passenger side, it is a reasonable inference
that the items in the front of the car may have been used to
smoke cocaine. Kendrick testified that he suspected that Wilburn
was smoking crack. Kendrick then asked Wilburn to get out of his
car and then told Wilburn that he was going to do a pat-down
search. At that point, Wilburn put his hands in his pockets. As
to these facts, Judge Hodges stated:
In plain sight in the vehicle there was a
film canister, a razor blade, a lighter,
burnt matches, and burnt material. All of
which, in light of the information Officer
Kendrick had, would lead a reasonable person
to feel that drugs were being smoked.
We believe that Judge Hodges could properly conclude
that the information relied upon by Kendrick supported his
actions in requiring Wilburn to get out of his car and conducting
the pat-down search. The officer could reasonably conclude that
Wilburn was smoking crack in his car. An investigative stop is
permissible under the Alaska Constitution if "the police officer
has a reason-able suspicion that imminent public danger exists or
serious harm to persons or property has recently occurred."
Coleman v. State, 553 P.2d 40, 46 (Alaska 1976). The fact that
Kendrick reasonably believed that Wilburn was smoking crack
cocaine in an automobile appears to us to meet this standard.
Wilburn points out that Kendrick did not specifically
testify that he believed that Wilburn might be armed and
dangerous. Wilburn therefore contends that the record does not
establish any basis to justify the police pat-down search.
However, we have not previously required the police to
specifically establish that they feared the defendant was armed
in order to justify a pat-down search. See State v. G. B., 769
P.2d 452, 456-57 (Alaska App. 1989); Brown v. State, 684 P.2d
874, 876 (Alaska App. 1984). In the instant case, Kendrick was
conducting an investigatory stop of a person in control of an
automobile who he believed was committing a felony offense of
possession of cocaine, and who he reasonably believed was using
crack cocaine at the time of the stop. We believe that under
these circumstances, Judge Hodges could properly conclude that
Kendrick's pat-down search of Wilburn was reasonable. We find no
error.
Judge Hodges found that, once the police had discovered
the pipe with the trace of cocaine in it, the police had probable
cause to arrest Wilburn for possession of cocaine. He then
concluded that the search of Wilburn's car was reasonable. We
believe that Judge Hodges' ruling is supported by Dunn v. State,
653 P.2d 1071, 1079-83 (Alaska App. 1982). In Dunn, we stated:
The rule that emerges from the case law
and that must govern the disposition of this
case may be restated as follows: upon the
lawful, non-pretextual arrest of an
individual for a crime, evidence of which
could be concealed on the person, a search of
the arrestee's person, his clothing and
articles which, akin to clothing, are
immediately associated with the person of the
arrestee may be searched at the time of the
arrest, or within a reasonable period
thereafter. As long as the search is
confined within these limits, it is
permissible for officers to open and inspect
the contents of any closed containers found,
unless, under the circumstances, it could not
reasonably be believed that the container
would yield a weapon or evidence of the crime
for which the arrest was made. This rule is
to be based on the relationship between the
article searched and the arrestee at the time
of the arrest, and must apply regardless of
actual access to or control over the
container by the accused at the time the
search is initiated.
Id. at 1082.
Once the police arrested Wilburn, they were entitled to
conduct a search incident to the arrest. We believe that the
Dunn rule allowed the police to search the interior of Wilburn's
car to the extent that the items in the car were within Wilburn's
reach at the time the police initiated the investigative stop.
The record shows that, when Kendrick initiated the investigative
stop, Wilburn was seated in his car. The officers testified that
the glove and the film container were in close proximity to
Wilburn at that time.
In Dunn, relying on Hinkel v. Anchorage, 618 P.2d 1069
(Alaska 1980), we stated that the police could search articles of
personal clothing which were in the immediate control of the
arrestee at the time of his arrest. Dunn, 653 P.2d at 1082.
The glove is an item of personal clothing, and was within the
immediate control of Wilburn at the time of the investigative
stop. The record shows that the police saw the film container in
the car and that it was also in Wilburn's vicinity when the
police initiated the investigative stop. The police also
testified that film canisters are frequently used to hold drugs.
Under these circumstances, we believe that the police were
entitled to seize and search the glove and the film container
pursuant to Dunn.
In Dunn, we stated that "[t]his rule is to be based
upon the relationship between the article searched and the
arrestee at the time of the arrest, and must apply regardless of
actual access to or control over the container by the accused at
the time the search is initiated." Id. In both Hinkel and Dunn,
the courts allowed the police to search items which the
defendants left in their cars after the police had removed the
defendants from the cars and secured them. Hinkel, 618 P.2d at
1071; Dunn, 653 P.2d at 1082-83. The courts in those cases did
not require the police to leave the defendants within reach of
the items in question in order to uphold a search incident to an
arrest. Similarly, in cases such as the instant case where an
investigative stop quickly ripens into an arrest, a rule
requiring the police to determine the exact moment when a person
was under arrest would be unpredictable and confusing. In Hinkel
and Dunn, the courts appear to have concluded that the scope of a
search incident to an arrest is not controlled by the location of
the arrestee after the arrest. Similarly, in the instant case,
we do not believe that the scope of the search incident to an
arrest should be controlled by where the police move a suspect to
during an investigative stop. We accordingly conclude that Judge
Hodges did not err in upholding the search of the glove and the
film canister.
The conviction is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. The state initially filed a motion to dismiss this
appeal; an opposition and a reply to that opposition were
subsequently filed. On November 6, 1990, this court entered an
order stating that it would defer a decision on the motion to
dismiss pending briefing on the merits.
