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THE COURT OF APPEALS OF THE STATE OF ALASKA
VINCENT S. ELDRIDGE, )
) Court of Appeals No. A-4320
Appellant, ) Trial Court No. 4FA-S91-
2022CR
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1289 - March 26, 1993]
________________________________)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Richard D. Savell,
Judge.
Appearances: Robert B. Downes, Robert B.
Downes, P.C., Fairbanks, for Appellant. Eric
A. Johnson, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Vincent S. Eldridge appeals his conviction of
misconduct involving a controlled substance in the third degree
(possession of cocaine with intent to deliver), AS
11.71.030(a)(1), arguing that Superior Court Judge Richard D.
Savell erred in failing to suppress evidence resulting from a
warrantless patdown of Eldridge's person. We remand for
reconsideration.
On July 15, 1991, Donald Allen, a probation officer in
Fairbanks, received an anonymous telephone tip that one of his
probationers, Charles Smith, had been selling cocaine in
Fairbanks. Two days later, Allen received another anonymous call
informing him that Smith had travelled to Anchorage, would be
returning to Fairbanks on a mid-afternoon Delta Airlines flight,
and might be carrying cocaine. Allen suspected the tip to be
accurate, since Smith was on probation for selling cocaine and, a
month earlier, had submitted a urine specimen that tested
positive for cocaine.
Through contacts with the federal Drug Enforcement
Administration, Allen confirmed that Smith had travelled from
Fairbanks to Anchorage on an early morning flight. Smith's
unauthorized departure from the Fairbanks area was a violation of
his probation conditions. Allen decided to arrest Smith for this
violation when Smith's flight arrived at the Fairbanks airport.
Allen recruited two other probation officers to assist him in the
arrest, and the three men drove to the airport to await Smith's
arrival.
Smith was not on the mid-afternoon Delta Airlines
flight from Anchorage. Allen and his fellow probation officers
met other airlines' mid-afternoon flights from Anchorage, but
Smith did not arrive on them either. The officers decided to
wait for an additional flight that was scheduled to arrive at
approximately 5:20 p.m.
The officers waited for Smith in their car in the
airport parking lot, where they had located the car that Smith
usually drove. Shortly after 5:30 p.m., the officers saw Smith
walking toward his car from the general direction of the terminal
building. Eldridge walked alongside Smith. As Smith and
Eldridge reached Smith's car, Smith unlocked the door; Eldridge
seated himself in the passenger's seat and closed his door.
Meanwhile, Smith started to enter on the driver's side of the
car.
At that point, Allen approached Smith, patted him down,
placed him under arrest for violating the conditions of his
probation by violating his travel restriction, and seated him in
the probation officers' car. While Allen dealt with Smith, the
two other officers approached the passenger's side of the car.
One of the officers (who were not in uniform) displayed his badge
and ordered Eldridge out of the car. Eldridge complied. The
other officer immediately directed Eldridge to turn toward the
car and place his hands on its roof. The officer conducted a
patdown of Eldridge's person. Upon feeling a hard object in one
of Eldridge's boots, the officer reached under Eldridge's pant-
leg and retrieved a package that was later found to contain rock
cocaine.
At the time of the stop, Allen and his companion
officers had no specific information that Smith might be armed.1
They also had no information indicating that Smith would be
returning from Anchorage with a companion, they were not
acquainted with Eldridge, and they did not know whether Eldridge
had in fact accompanied Smith on the Anchorage flight. The
officers saw nothing change hands between Smith and Eldridge, and
they observed no suspicious movements or actions on Smith's or
Eldridge's part, although they could view only the back of
Eldridge's head after he seated himself in the passenger's seat.
No one heard whether the two men exchanged words as they entered
the car. All three probation officers were armed with handguns
but saw no need to draw or display their weapons.
On the other hand, all three probation officers had
dealt with a substantial number of narcotics cases and were aware
that guns are frequently carried by persons who traffic in
cocaine and that such persons frequently use companions to carry
drugs. The officers characterized their patdown searches of
Eldridge and Smith as an "operational procedure . . . in a
situation of this nature," and as something that is done
"routinely" to assure their safety.
Eldridge moved to suppress the cocaine that was found
in his boot, arguing, in relevant part, that the patdown
resulting in seizure of the cocaine had not been supported by a
reasonable suspicion that he was armed and dangerous. Following
an evidentiary hearing, Judge Savell denied Eldridge's motion.
Eldridge subsequently entered a plea of no contest, reserving his
right to appeal Judge Savell's ruling.2
To decide Eldridge's claim on appeal, we must initially
determine whether the superior court applied the correct legal
standard in upholding the challenged patdown search. This
determination involves an issue of law as to which we exercise
independent review. Jackson v. Power, 743 P.2d 1376, 1379 n.5
(Alaska 1987). See also United States v. McConney, 728 F.2d 1195,
1202 (9th Cir. 1984) (en banc), abrogated on other grounds,
Merchant v. Commissioner Internal Revenue Service, 947 F.2d 1390,
1392 (9th Cir. 1991).
In denying Eldridge's motion to suppress, Judge Savell
considered the circumstances surrounding the disputed patdown,
found that there had been good reason to suspect that Smith might
be armed and trafficking in drugs, and concluded that the
probation officers therefore acted reasonably in subjecting
Eldridge to a patdown to assure their own safety. Judge Savell
did not specifically find, however, that the officers had any
articulable grounds for suspecting Eldridge himself to be armed
or dangerous.
Although Judge Savell's findings are not entirely clear
on the issue, the judge appears to have concluded that Eldridge
was automatically subject to a cursory protective search for
weapons because he was a companion of Smith, who was reasonably
suspected of being armed and was being lawfully placed under
arrest. On this point, Judge Savell specifically stated:
The Court does not find that the probation
officers had to articulate a reason to
suspect anything other than [that] Mr.
Eldridge's presence with Mr. Smith gives them
the right to reasonably assure that no weapon
is brought to bear, either because of the
transport of a substantial quantity of
cocaine or because of a possible view that a
ripoff could have been taking effect on Mr.
Eldridge's part and him to act out as if the
probation officers were not law enforcement
officers under attack.
The court's conclusion appears to have had its source
in the state's legal argument opposing Eldridge's suppression
motion. The state relied below, and relies here, on a line of
cases engendered by United States v. Berryhill, 445 F.2d 1189
(9th Cir. 1971), in which the court announced what has come to be
known as the "automatic companion" rule:3
All companions of [an] arrestee within the
immediate vicinity, capable of accomplishing
a harmful assault on the officer, are
constitutionally subjected to the cursory
`pat-down' reasonably necessary to assure
that they are unarmed.
Id. at 1193.
Since Berryhill was decided, a number of federal courts
have nominally adhered to the automatic companion rule.4 Other
courts, however, have rejected the automatic companion rule as
unnecessarily broad or have simply ignored it, opting instead for
a case-specific analysis of the totality of the circumstances to
decide whether a reasonable suspicion has been articulated to
justify a patdown of an arrestee's companion.5
With respect to Berryhill's statement of the automatic
companion rule, Professor LaFave persuasively observes:
Although on occasion this last statement
in Berryhill has been taken literally, it is
to be doubted whether such a broad rule is
justified. It is noteworthy that such a
broad principle was unnecessary to reach the
result in that case . . . . Certain other
decisions upholding the search of an
arrestee's companion may likewise be
explained upon narrower grounds . . . .
3 Wayne R. LaFave, Search and Seizure 9.4(a), at 510-11 (2d ed.
1987) (footnotes omitted).
Instead of the automatic companion rule, LaFave
advocates an assessment of the degree of apparent danger based on
the totality of the circumstances in each case. Id. at 511.
LaFave goes on to say:
Even if the companion is not sufficiently
suspected so that he could be legitimately
seized for investigation, the circumstances
may nonetheless indicate that the officer
should take appropriate precautions. Among
the relevant circumstances in making an as
sessment of the apparent danger are the
nature of the crime for which the arrest was
made, the nature of the association between
the companion and the arrestee, the time and
place of the arrest, the number of officers
who are present as compared to the number of
arrestees and companions, and whether the
companion has a "suspicious bulge" in his
clothing or has made any menacing movements.
It would also appear to be of some
significance that the companion was with the
arrestee in a car or in premises or that he
intruded himself into the arrest situation .
. . .
Id. at 511-12, and 1993 Supp. at 148.
LaFave's totality-of-the-circumstances approach --
rooted in the orthodox notion of reasonable suspicion that
originated with Terry v. Ohio, 392 U.S. 1 (1968), and more
recently finding expression in Ybarra v. Illinois, 444 U.S. 85,
94-96 (1979) -- seems to us to be legally sound, readily
understandable, and considerably preferable to the categorical
approach taken by Berryhill. As the court held in United States
v. Bell, 762 F.2d 495 (6th Cir. 1985):
As to the propriety of the "automatic
companion" rule, we do not believe that the
Terry requirement of reasonable suspicion
under the circumstances . . . has been eroded
to the point that an individual may be
frisked based upon nothing more than an
unfortunate choice of associates. The
Supreme Court has "invariably held [that] the
predicate to a patdown of a person for
weapons" is "a reasonable belief that he was
armed and presently dangerous."
Id. at 499 (citations omitted).
LaFave's case-specific approach is virtually identical
to the approach taken by most courts that have rejected the
automatic companion rule. See particularly Bell, 762 F.2d at 499-
502. These precedents are especially pertinent to Alaska, given
the prominence our state constitution accords the right of
privacy6 and the commensurately higher standard of reasonable
suspicion the Alaska Supreme Court adopted in Coleman v. State,
553 P.2d 40, 46-47 (Alaska 1976).
Commenting on the Coleman standard, this court recently
said:
In our view, Coleman addresses the
problem of differentiating serious from
nonserious harm by espousing a flexible
approach based on practical necessity, rather
than a rigid standard of categorical
exclusion.
State v. G.B., 769 P.2d 452, 455 (Alaska App. 1989).
We noted, further, "that Coleman recognizes that the
extent of danger threatened by a potential crime . . . cannot be
evaluated in the abstract." Id. at 456. We went on to observe
that the Coleman standard requires a case-by-case balancing of
the imminence and seriousness of potential harm "against the
strength of an officer's reasonable suspicion and the actual
intrusiveness of the investigative stop." Id.7
Finally, we emphasized:
In each case, compliance with Coleman's re
quirement of recently committed serious harm
must be evaluated with a view toward the
fundamental concern of the Coleman court:
the risk that an investigative stop based on
mere suspicion may be used as a pretext to
conduct a search for evidence. As indicated
in Coleman, the fundamental inquiry in each
case is whether a "prompt investigation [was]
required . . . as a matter of practical
necessity."
Id. (citations omitted).
We conclude that Berryhill's automatic companion rule
is incompatible with the requirements of the Alaska Constitution,
as interpreted by the Alaska Supreme Court in Coleman. Because
the superior court evidently relied on the Berryhill standard to
validate the challenged patdown in the present case, we must
remand for further proceedings. On remand, the superior court is
directed to reconsider its ruling by determining whether the
totality of the circumstances gave rise to articulable grounds
supporting a reasonable suspicion that Eldridge was armed and
dangerous and that an immediate patdown of his person was
"required . . . as a matter of practical necessity." Coleman,
553 P.2d at 46 (quoting Goss v. State, 390 P.2d 220, 224 (Alaska
1964)).8
This case is REMANDED for reconsideration.
_______________________________
1. Indeed, Smith was not armed and, as Allen testified at
the suppression hearing, Allen evidently believed that he
probably would not be armed:
Knowing Mr. Smith, I was not too concerned
about him personally, even though there
always is a danger that someone can change
the way they've behaved in the past. I've
known Mr. Smith for some time[.] [H]e has no
history of violence and there has not been
any weapons found in his possession.
2. See Cooksey v. State, 524 P.2d 1251, 1256-57 (Alaska
1974).
3. For general discussions of the pros and cons of the
"automatic companion" rule, see Notes, The Automatic Companion
Rule: an Appropriate Standard to Justify the Terry Frisk of an
Arrestee's Companion?, 56 Fordham L. Rev. 917 (1988); Comment,
United States v. Bell: Rejecting Guilt by Association in Search
and Seizure Cases, 61 Notre Dame L. Rev. 258 (1986).
4. For examples of cases following Berryhill, see 3 Wayne
R. LaFave, Search and Seizure 9.4(a), at 511 n.71 (2d ed.
1987).
5. See, e.g., United States v. Flett, 806 F.2d 823, 826-29
(8th Cir. 1986); United States v. Bell, 762 F.2d 495, 498-500
(6th Cir. 1985); United States v. Tharpe, 536 F.2d 1098, 1100-01
(5th Cir. 1976)(en banc), overruled on other grounds, United
States v. Causey, 834 F.2d 1179 (5th Cir. 1987); and United
States v. Vigo, 487 F.2d 295, 298 (2d Cir. 1973).
6. See Alaska Const., art. I, 22.
7. See also Peschel v. State, 770 P.2d 1144, 1148-50
(Alaska App. 1989) (holding that the availability of reasonable,
less intrusive alternatives is relevant to a determination of
practical necessity under the Coleman standard).
8. The superior court may, in its discretion, require or
permit the parties to present additional evidence.
