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THE COURT OF APPEALS OF THE STATE OF ALASKA
MITZI M. MOORE, )
) Court of Appeals No. A-3255
Appellant, ) Trial Court No. 3AN-S88-6185CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1160 - September 20, 1991]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: John C. Pharr, Anchorage, for
Appellant. W.H. Hawley, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Douglas B. Baily,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
Mitzi M. Moore pled no contest to one count of
misconduct involving a controlled substance in the fourth degree
(possession of cocaine), reserving the right to appeal the
superior court's denial of her motion to suppress the cocaine she
allegedly possessed, which was seized during a warrantless search
of her person. On appeal, Moore contends that the search was not
supported by probable cause, and, even if it was, it did not fall
within any established exception to the warrant requirement. We
affirm.
On September 23, 1988, police officers executed a
search warrant at an Anchorage residence. The warrant was based
on evidence establishing that the residence was a "crack house,"
that is, a place used exclusively for the consumption and
distribution of cocaine.
Upon entering the residence, officers encountered
thirteen people. Mitzi Moore was one of several people in the
living room. Moore was initially subjected to a patdown and
then to a full search, which yielded a baggie of cocaine that she
had concealed in her clothing.
Moore moved to suppress this evidence, claiming that
the search was not supported by probable cause. Following an
evidentiary hearing, Superior Court Judge Peter A. Michalski
denied the motion, finding that the police had probable cause to
believe that Moore possessed a controlled substance.
On appeal, Moore first claims that the warrantless
search of her person was not based on probable cause but was
conducted merely because she was present when the police executed
the warrant for the residence. Moore argues that, under the
circumstances, the search is barred by Ybarra v. Illinois, 444
U.S. 85 (1979). The superior court found, however, that Moore's
search was based on particularized facts amounting to probable
cause. The court's decision is not clearly erroneous.1
Moore's presence in a crack house -- a location used
exclusively for illicit traffic in cocaine -- was one factor that
the police could take into account in the overall calculus of
probable cause. See, e.g., State v. Hinkel, 365 N.W.2d 774
(Minn. 1985); Commonwealth v. Smith, 348 N.E.2d 101 (Mass. 1976);
State v. DeSimone, 288 A.2d 849 (N.J. 1972).2 Moreover, at the
suppression hearing, Sergeant Mark O'Brien of the Anchorage
Police Department testified that, based on his experience with
other crack houses, it is a common practice for persons who run
such establishments to conceal drugs on women who are on the
premises. Other significant evidence specifically indicated that
Moore was likely to have cocaine secreted on her person. A
packet containing cocaine was found at Moore's feet in the living
room.3 Moore was visibly upset by the search, seemed anxious to
leave, and offered to provide information to the police if they
allowed her to go. She also offered an explanation of her
presence that was obviously false. When viewed in their
totality, these circumstances support the superior court's
finding of probable cause.
Moore separately contends that, even if probable cause
existed, her warrantless search cannot be justified under any of
the recognized exceptions to the warrant requirement. See, e.g.,
Schraff v. State, 544 P.2d 834, 840 (Alaska 1975). Moore
acknowledges that warrantless searches based on probable cause
are permissible when necessary to prevent the destruction of
evidence. See, e.g., Layland v. State, 535 P.2d 1043 (Alaska
1975), overruled on other grounds, 592 P.2d 1187, 1191 (1979);
State v. Spietz, 531 P.2d 521, 524 (Alaska 1975); Ingram v.
State, 703 P.2d 415, 422 (Alaska App. 1985). She contends,
however, that there was no exigency here.
In Finch v. State, 592 P.2d 1196, 1198 (Alaska 1979),
the Alaska Supreme Court set out the criteria for determining
when warrantless searches are permissible under the destruction
of evidence exception:
There must be probable cause to believe
that evidence is present, and the officers
must reasonably conclude, from the
surrounding circumstances and the information
at hand, that the evidence will be destroyed
or removed before a search warrant can be
obtained . . . .
Circumstances which are relevant to the
determination include: the degree of urgency
involved; the amount of time necessary to
secure a warrant; the possibility of danger
to police officers guarding the site while a
warrant is sought; information indicating
that the possessors of the evidence are aware
the police are on their trail; and the ready
destructibility of the evidence.
Applying these criteria to the present case, we
conclude that the superior court did not err in finding a
warrantless search to be justified to prevent the destruction of
evidence. The officers in this case were engaged in executing a
search warrant on a crack house, which contained numerous
individuals, some of whom had attempted to escape through windows
or barricade themselves into rooms upon the arrival of the
police. Moore had clearly been alerted to the fact that the
police were "on her trail," and she knew that they suspected her
of possessing drugs -- easily destructible evidence. Moore
seemed anxious to leave and had affirmatively sought to exchange
information in return for immediate permission to go.
Given these circumstances, there was ample cause for
police to fear imminent destruction of any drugs or related
evidence that might be on Moore's person. An immediate,
warrantless search of her person was justified.
The judgment is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. Even though there is evidence in the record tending to
show probable cause, Moore argues that she was actually searched
merely because the police decided to search everybody who was in
the residence when the warrant was executed. Moore bases her
argument on the suppression hearing testimony of Anchorage Police
Sergeant Mark O'Brien, but her reading of O'Brien's testimony is
strained. When O'Brien's testimony is taken in the light most
favorable to the state -- as it must be, see State v. Grier, 791
P.2d 627, 631 (Alaska App. 1990) -- it supports the superior
court's finding that Moore's search was based on particularized
facts, and not merely on her presence when the warrant for the
residence was executed.
2. Moore contends that her presence in the crack house was
not a factor to be properly considered in determining probable
cause. Moore relies on cases such as Ybarra v. Illinois, 444
U.S. at 90-91; State v. Broadnax, 654 P.2d 96 (Wash. 1982); and
Lippert v. State, 664 S.W.2d 712 (Tex. Crim. App. 1984). Those
cases, however, do not categorically preclude considering a
person's location for purposes of establishing probable cause.
Rather, they stand for the more limited proposition that if a
search warrant is issued for premises in which some people are
engaged in illegality but others may be pursuing legitimate
activities, the mere fact that a person is on the premises when
the warrant is served will not justify a search of that person.
In contrast, Moore was located in premises singularly devoted to
a criminal enterprise, and her presence was relied on by the
police only as one of several factors in the probable cause
determination.
3. Moore questions whether the police officer who
specifically ordered her to be searched was actually aware that a
packet of drugs had been found at her feet. Moore raises this
issue for the first time on appeal. At the suppression hearing,
the state presented evidence relating to the discovery of drugs
at Moore's feet as part of its overall showing of probable cause.
Moore did not question whether the officer who ordered her to be
searched was specifically aware of this evidence, and she did not
argue lack of knowledge by that officer as a ground for
precluding the superior court from taking the packet of drugs
into account in the overall determination of probable cause. The
point was thus never explored at the suppression hearing, and the
record does not conclusively establish the scope of knowledge of
the officer who ordered Moore to be searched. In ruling on
Moore's motion to suppress, Judge Michalski implicitly found that
the fact that drugs had been discovered at Moore's feet was
generally known by the officers executing the warrant, and that
knowledge of this fact was not confined to the officer who
initially encountered Moore. In this regard, Judge Michalski's
findings specify that "[Moore] was in the living room as police
entered, and they observed a packet of cocaine at her feet . . .
." (emphasis added). Given the manner in which this issue was
presented below, Judge Michalski was not clearly erroneous in
finding, a matter of fact, a general awareness by the police
officers executing the warrant that drugs had been found at
Moore's feet. Accordingly, we need not decide the extent to
which the knowledge of one officer may, as a matter of law, be
imputed to others. See generally LaFave, Search and Seizure
3.2(d) (2d ed. 1987); United States v. Lomas, 706 F.2d 886 (9th
Cir. 1983).
