NOTICE: This opinion is subject to formal
correction before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, in order that corrections may be made
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ROBERT W. SNIDER, )
) Court of Appeals No. A-6019
Appellant, ) Trial Court No. 3PA-94-1763CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1592 - May 22, 1998]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Palmer, Beverly W. Cutler, Judge,
and Stephanie Rhoades, Superior Court Judge, pro tem.
Appearances: Robert M. Herz, Assistant Public
Defender, Palmer, and Barbara K. Brink, Public Defender, Anchorage,
for Appellant. W. H. Hawley, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, Mannheimer,
Judge, and Rabinowitz, Senior Supreme Court Justice.
RABINOWITZ, Senior Justice.
I. INTRODUCTION
The primary question raised in this appeal concerns the
proper scope of a warrantless search incident to a lawful arrest.
II. FACTS AND PROCEDURES
Robert W. Snider went for a walk, armed and intoxicated,
along Bogard Road in Wasilla on August 13, 1994. The police
received a complaint that Snider, while walking along Bogard Road,
was waiving a handgun in the air and appeared to be hallucinating.
Alaska State Trooper Randall Hahn was given a description of Snider
(blue shirt, black hat, older male) and was dispatched to
investigate. Shortly after 9:00 P.M., he located Snider on Bogard
Road. When Trooper Hahn first observed Snider, he thought Snider
was "apparently hallucinating" - as he was walking down the road
leaving markers to identify his trail. According to Hahn, Snider
appeared to be "obviously intoxicated." Snider's speech was
slurred, his eyes bloodshot, his gait swaying and he had "a very
strong odor of alcohol on his breath." After observing that Snider
had a handgun strapped to his left leg, Hahn determined that he
could arrest Snider for possessing a weapon while intoxicated.
Trooper Hahn then arrested Snider. Upon disarming him,
Hahn determined that Snider's revolver was loaded. Trooper Hahn
then commenced a pat-down search of Snider's person for additional
weapons before placing him in the patrol car. During the course of
his search, Hahn found a glass pipe, five to six inches in length,
in one of Snider's pockets. The pipe was screened and blackened at
both ends. Hahn stated that the pipe appeared to him to be a crack
or cocaine pipe, and, according to his training and experience,
individuals who have this type of pipe on their person also carry
some amount of crack cocaine or cocaine with them.
Hahn then continued his pat-down search of Snider and
located a two-inch by two-inch black, plastic box in Snider's upper
left shirt pocket. At the time Hahn removed the box from Snider's
pocket, Snider "made an unsolicited comment that both the box and
the pipe had been found together along the road, and he indicated
farther down the road from the direction he had come." Trooper
Hahn testified that, based on his knowledge, training and
experience, he believed the container probably contained narcotic
substances. Acting on this background, Hahn unwrapped the foil
containers found within the box and discovered what appeared to be
rock cocaine.
Hahn then transported Snider to jail and called an
assistant district attorney. The State's attorney expressed doubts
as to the legality of the search of the contents of the plastic box
Hahn had found on Snider's person and instructed Hahn to seek a
curative search warrant. Thereafter, on August 15, Hahn requested
and received a warrant for the search of the box. At the hearing
for the warrant, Hahn testified that he had searched Snider after
his arrest in order to determine if Snider possessed any other
weapons, and that during this search he found the pipe and the
plastic box. Based on Hahn's testimony, District Court Judge John
D. Mason issued a warrant for a search of the plastic box. In so
doing, Judge Mason emphasized that Hahn had found a cocaine pipe on
Snider's person and that Snider had a previous drug conviction.
(The prior conviction had been made known to Hahn at the time of
the arrest and pat-down search.)
Subsequently, pro tem Superior Court Judge Stephanie
Rhoades denied Snider's motion to suppress as evidence the rock
cocaine discovered by Trooper Hahn. Later in the course of
proceedings in the case, Superior Court Judge Beverly W. Cutler
denied Snider's motion to dismiss the charges against him based on
the ground that the 120-day speedy trial limit of Criminal Rule 45
had been exceeded. Snider then pled no contest to one count of
misconduct involving weapons in the third degree, AS 11.61.-
200(a)(1) (felon in possession) and one count of misconduct
involving a controlled substance in the fourth degree,
11.71.040(a)(3)(A) (possession of cocaine). Snider reserved and
now appeals the denial of his suppression motion as well as the
superior court's denial of his Rule 45 motion. See Cooksey v.
State, 524 P.2d 1251 (Alaska 1974).
We affirm.
III. DISCUSSION
A. Validity of the Initial Warrantless Search Incident to
Arrest. [Fn. 1]
A law enforcement officer acting without a warrant may
search a suspect incident to arrest if: the arrest is valid, the
search is carried out roughly contemporaneously with the arrest,
the arrest is not a pretext for the warrantless search, and the
arrest is for a crime, evidence of which could be concealed on a
person. McCoy v. State, 491 P.2d 127, 138 (Alaska 1971); Nelson v.
State, 781 P.2d 994, 999 (Alaska App. 1989).
Under federal law, an officer may search all of the
person and any possessions found upon the person upon arrest.
United States v. Robinson, 414 U.S. 218, 235 (1973). Under
Alaska's Constitution, a warrantless search incident to an arrest
is limited in its scope. In Zehrung v. State, 569 P.2d 189, 199-
200 (Alaska 1977), modified on other grounds, 573 P.2d 858 (Alaska
1978), the Supreme Court of Alaska held that an arresting officer
may, without a warrant, search the person of the arrestee only for
weapons or for evidence of the crime for which the suspect was
arrested. In Jackson v. State, 791 P.2d 1023, 1028 (Alaska App.
1990), we applied Zehrung in holding that absent an articulable
basis for suspicion that the arrestee is carrying an unusually
small weapon, a warrantless weapons search incident to an arrest
must be limited to an examination of articles that could hold a
weapon of normal size.
Jackson involved an arrest for failure to appear in
court. Subsequent to the arrest, the officer went through the
arrestee's wallet in search of razor blades and very small knives.
As a result, the officer found drugs. This court held that a
weapons search of the wallet was unreasonable. We relied on the
distinction drawn by the California Supreme Court in People v.
Brisendine, 531 P.2d 1099, 1108-09 (Cal. 1975), which upheld a
weapons search of a backpack but voided the search of a bottle and
envelopes found within the backpack. Jackson, 791 P.2d at 1027-28.
Chief Judge Bryner concurred in Jackson, emphasizing that the
decision was controlled by Zehrung. Id. at 1029. If the weapons
rationale would even allow the examination of the contents of a
wallet, Chief Judge Bryner contended, Zehrung would be eviscerated,
as the officer could effectively conduct a full search of the
suspect. Id. at 1029-30.
Applying Jackson, Zehrung and State v. Kendall, 794 P.2d
114 (Alaska App. 1990), to the facts of this case leads us to the
conclusion that the superior court correctly determined that
probable cause existed for the warrantless seizure and search of
the contents of the black plastic box which was found on Snider's
person. [Fn. 2] Of particular significance to the resolution of
this appeal is our opinion in Kendall.
In Kendall, the defendant arrived at a house where the
police were executing a search warrant (an undercover officer had
just purchased cocaine from the owner of the house). Kendall
showed up fifteen minutes after the police had intercepted a phone
call informing them that an unidentified person would be delivering
"some dope" to the address. Kendall became suspicious and
attempted to flee when an undercover officer, wearing latex gloves,
answered the door. During this escape attempt, Kendall threw a
beer bottle at the pursuing officers. He was wrestled to the
ground and arrested for resisting arrest. During the officers'
struggle with Kendall, they observed a propane torch sticking out
of the waistband of Kendall's pants; they also saw glass tubing in
his front jacket pocket.
At the suppression hearing, the officers testified that
from experience they knew these types of instruments were used in
smoking crack cocaine. When the officers removed these items they
also discovered a film canister which rattled when shaken and a
velvet bag containing something soft. The officers emptied the
containers and found cocaine in them. The trial court suppressed
the evidence because the stated reason for arrest, resisting
arrest, would not justify the scope of the search; the trial court
did find, however, that at the time the containers were discovered
the officers had probable cause to arrest Kendall for possession of
cocaine. We reversed the trial court's decision, holding that
since objectively at the time of arrest the officers could have
arrested Kendall for "cocaine charges" the officer's subjective
reliance upon the resisting arrest charge did not limit the scope
of the search. Id. at 117.
In reaching this conclusion, we said:
In his treatise on the fourth amendment,
Professor LaFave extensively discusses the issue of whether courts
should review the objective facts which the police officers knew in
determining whether there was a valid arrest or whether courts
should consider the police officers' subjective conclusion that
they had probable cause. W. LaFave, I Search and Seizure sec.
1.4(d), at 86-90 (2nd ed. 1987). LaFave indicates that [State] v.
Ercolano, [397 A.2d 1062 (1979),] the case relied upon by Judge
Katz, represents a minority view. According to LaFave, the
majority view is that the court should determine whether an officer
has probable cause to arrest based upon the objective facts which
the officer knew at the time of the arrest.
LaFave strongly favors the majority view,
finding that the Ercolano rule "erects an unduly rigid standard by
insisting 'that policemen act on necessary spurs of the moment with
all the knowledge and acuity of constitutional lawyers.'" Id. at 90
(quoting State v. Romeo, 43 N.J. 188, 203 A.2d 23, 32 (1964), cert.
denied, 379 U.S. 970, 85 S.Ct. 668, 13 L.Ed.2d 563 (1965)). He
concludes that it is unlikely that a rule which requires the police
to state the correct theory which justified an arrest would have
beneficial results. In LaFave's view, where police give the wrong
reason for conducting an arrest, they likely would give the proper
reason if they knew that the first ground was invalid.
It seems that application of the rule
requiring officers to state the correct ground before an arrest is
valid would lead to a procedure where officers would be trained to
state every possible ground for making an arrest, so that the
arrest would be upheld if any one of the grounds was valid.
Furthermore, requiring the officer to state the correct ground for
arrest would result in the exclusion of evidence in cases where the
person who was arrested had not had his rights violated.
In the instant case, the police had
reasonable suspicion to stop Kendall, to briefly detain him, and
ultimately had sufficient information to arrest him for possession
of cocaine. Kendall personally had no interest in whether the
police who arrested him were able to correctly articulate the basis
for the arrest. The only possible goal which we would accomplish
by suppressing the evidence against Kendall would be to require
police in future cases to more carefully articulate their grounds
for arrest. We are unconvinced that such a ruling would have any
positive effect. We accordingly adhere to the conclusion which we
have stated in previous cases: the trial court should analyze the
objective information which the police had at the time when they
made an arrest in determining whether there was probable cause to
make that arrest.
Id.
Application of Kendall to the facts of this case leads us
to the conclusion that Trooper Hahn's warrantless search of the
contents of the black plastic box found on Snider's person should
be upheld on two separate bases. First, Trooper Hahn's discovery
of the glass pipe, his knowledge that such pipes are commonly used
to smoke cocaine, and that people who smoke cocaine and possess a
cocaine pipe on their person commonly carry the drug on their
person, objectively furnished probable cause for the arrest of
Snider for unlawful possession of drugs as well as probable cause
for a search of the contents of the plastic box for evidence of
drug possession. The mere fact that Trooper Hahn stated he
arrested Snider for possessing a weapon while intoxicated does not
negate the existence of sufficient objective evidence furnishing
probable cause to arrest Snider for unlawful possession of drugs
and to thereafter conduct a warrantless search for evidence of
unlawful drug possession. [Fn. 3]
Additionally, AS 11.61.210 proscribes possession of a
firearm where a person's "physical or mental condition is impaired
as a result of . . . intoxicating liquor or a controlled
substance." [Fn. 4] The facts outlined above, and Trooper Hahn's
observations of Snider's erratic behavior while possessing a
firearm, objectively provided probable cause for the officer to
believe that Snider was high on cocaine and thus to search Snider's
person for evidence of cocaine possession. Snider had been
arrested for possession of a weapon while intoxicated. Since
intoxication includes being under the influence of drugs, the facts
known to Trooper Hahn objectively justified the search of Snider's
person for drugs.
We therefore affirm the superior court's denial of
Snider's motion to suppress.
B. Criminal Rule 45 - Speedy Trial.
Snider contends that the 120-day speedy trial limit of
Criminal Rule 45 was exceeded by twenty days. He argues that the
time under the rule began to run on August 13, when he was
arrested. Snider's calculation is incorrect; Rule 45 did not begin
to run until August 24, when Snider was served with a copy of the
charge. See Alaska R. Crim. P. 45(c)(1).
Snider further argues that the time under the rule was
not tolled by virtue of his September 20 motion to dismiss (based
on the State's alleged failure to produce certain discovery)
because his motion to dismiss was never ruled on. We reject this
contention. Time under the rule was tolled and did not commence to
run again until the motion to dismiss was withdrawn on October 12.
See State v. Clouatre, 516 P.2d 1189, 1191 (Alaska 1973); Drake v.
State, 899 P.2d 1385, 1388 (Alaska App. 1995) (defense motion tolls
Rule 45 until it is withdrawn).
In short, we affirm Judge Cutler's determination that
Criminal Rule 45 was not violated since only a total of ninety-six
days had run under the provisions of Rule 45. [Fn. 5]
IV. CONCLUSION
The judgment of the superior court is AFFIRMED. [Fn. 6]
 In the Court of Appeals of the State of Alaska
Robert W. Snider, )
) Court of Appeals No. A-06019
Appellant, )
v. ) Order
)
State of Alaska, )
)
Appellee. ) Date of Order: 5/22/98
)
Trial Court Case # 3PA-94-01763CR
Before: Coats, Chief Judge, Mannheimer and Rabinowitz, Senior Justice, Pro Tem*
[Stewart, Judge, not participating]
On consideration of the State's motion to publish the memorandum opinion and judgment
No. 3804, issued on April 22, 1998,
IT IS ORDERED:
1. The motion to publish is GRANTED.
2. Memorandum Opinion and Judgment No. 3804, issued on April 22, 1998, is
WITHDRAWN, and Opinion No. 1592 is issued today in its place.
Entered by the direction of the court at Anchorage, Alaska on May 22, 1998.
Clerk of the Appellate Courts
Cheryl Jones, Deputy Clerk
Distribution:
Court of Appeals
Judge Cutler
Judge Rhoades
Central Staff
Appeals Division
Robert M. Hertz, Assistant Public Defender
William H. Hawley, Jr, OSPA
__________________________________
* Sitting by assignment made under article IV, section 11 of the Alaska Constitution and Administrative Rule 23(a).
FOOTNOTES
Footnote 1:
In his reply brief, Snider argues that the State is estopped
from arguing that the initial search was legal because the State
had conceded it was illegal at trial. Snider contends he was
prejudiced by the concession because it led his lawyer to terminate
a line of questioning of Trooper Hahn as to his knowledge of search
and seizure law and why he conducted the search. Apparently,
Snider sought to prove that even if the search of Hahn was
justifiable as a search for weapons or evidence of the crime for
which he was arrested, Trooper Hahn did not have either of these
justifications in mind when he conducted the search.
Snider's argument is without merit. The reasonableness
of Hahn's search depends on the objective circumstances of the
search, not on Hahn's knowledge of search and seizure law. If the
circumstances justified the search that Hahn conducted, then the
search was reasonable, regardless of whether Hahn knew that search
fell within the confines of this court's search and seizure
jurisprudence. Beauvois v. State, 837 P.2d 1118, 1121 n.1 (Alaska
App. 1992) (Police officer's explanation for the stop of
defendant's vehicle held irrelevant. "The test is whether under
the facts known to the police officer, the stop of the car was
objectively justified."). The circumstances of the search were
fully developed below. Because Snider's lawyer's line of
questioning would not have yielded information that would have
brought the legality of the search into question, Snider was not
prejudiced by the State's concession of illegality.
Snider cites Stephens v. State, 698 P.2d 664 (Alaska App.
1985), as contrary authority. There we declined the State's
invitation to rationalize a search of a criminal for identification
as a search for weapons used in an assault. We explained that
"[t]here is nothing in this limited record to suggest that there
was any evidence of the assault for which the police could search."
Id. at 665. In other words, the circumstances did not justify a
search for evidence of the offense for which the suspect had been
arrested. Nothing in Stephens bars the consideration of a
justification which is supported by the circumstances of the
arrest.
Footnote 2:
Stephanie Rhoades, Superior Court Judge, pro tem, issued a
ruling in which she found:
that there was sufficient evidence presented
. . . in support of the search warrant in this
case.
. . .
Indeed the warrant application did not
include full testimony of what the Trooper's education, training
and experience in the area of narcotics was which led him to
believe that the glass pipe found was a crack pipe and that the
container was of the type which typically contains drugs used in
connection with crack pipes. Nonetheless, it was clear from the
record that the witness was a State Trooper and had received the
standard training in this area. Further, Judge Mason asked to
actually view the pipe and the container and, as stated on the
record at the evidentiary hearing, it is almost within the purview
of common knowledge that a glass pipe burned at both ends and
containing a mesh or screen-like material is used to ingest crack
cocaine.
There is sufficient probable cause from the
totality of the circumstances here . . . to believe that the small
container found in close proximity to a crack pipe on the
defendant's person would contain an illegal substance.
Footnote 3:
In other words, the discovery of the crack pipe during Hahn's
pat-down search of Snider's person independently rendered
reasonable a search of Snider's person for drugs incident to his
arrest. The discovery of the used cocaine pipe furnished specific
and articulable objective support for a reasonable officer's belief
that Snider was guilty of possession of cocaine, and that Snider
might possess other drugs on his person. Thus, the discovery of
the cocaine pipe independently rendered reasonable a search of
Snider's person for drugs incident to his arrest.
Footnote 4:
Cocaine is a controlled substance. AS 11.81.900(b)(6);
AS 11.71.900(4); AS 11.71.150(c).
Footnote 5:
The State fashioned the following chart which summarizes
Judge Cutler's correct application of Rule 45 to the facts
appearing in this record.
Event
Date
Effect on Rule
Days
Arraignment (Snider
receives indictment)
08/24/94
Start
0
Motion to Dismiss
09/20/94
Stop
27
Motion to Withdraw
10/12/94
Start
27
Trial Call
11/03/94
Continues Running
51
Defense Continuance
12/01/95
Stop
79
Status Conference
(issues taken under
advisement)
03/22/95
Stop
79
End of Rule 45 30-day
advisement period
04/21/95
Start
79
Ruling on issues under
advisement
05/09/95
Stop
96
Footnote 6:
Our resolution of the issues discussed above makes it
unnecessary to address any other issue raised in this
appeal.
