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Joubert v. State (4/30/99) ap-1631
NOTICE: The text of this opinion can be corrected before
the opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
HURIST JOUBERT, )
) Court of Appeals No. A-6540
Appellant, ) Trial Court No. 3AN-S95-7468CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1631 - April 30, 1999]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Milton M. Souter, Judge.
Appearances: Maria Bahr, Assistant Public
Defender, and Barbara K. Brink, Public Defender, Anchorage, for
Appellant. Kenneth M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
STEWART, Judge.
MANNHEIMER, Judge, concurring.
COATS, Chief Judge, dissenting.
Hurist Joubert appeals his conviction for third-degree
misconduct involving a controlled substance. [Fn. 1] He maintains
that the police illegally seized cocaine during a pat-down search.
We conclude that the seizure of the cocaine was impermissible and
reverse.
Facts and proceedings
In October of 1995, Joubert was on parole supervision for
a 1989 felony case. One of Joubert's parole conditions required him
to inform his parole officer if he purchased or regularly drove a
vehicle. Another condition required him to consent to a search
requested by a parole officer.
On October 3, 1995, a probation officer told Joubert's
parole officer, Stanley Shoop, that he had seen Joubert driving a
red Cadillac and that the Cadillac had been reported stolen to the
Anchorage Police Department. Shoop contacted APD and confirmed that
the Cadillac in question was listed as a stolen car.
On the evening of October 4, 1995, Shoop drove to
Joubert's apartment. The red Cadillac was parked outside. After
reconfirming with APD dispatch that the car was listed as a stolen
vehicle, Shoop requested assistance from APD. While Shoop was
waiting for police to arrive, Joubert left his apartment, got into
the Cadillac and started to drive away. Shoop blocked Joubert's
departure with his own car. Shoop ordered Joubert out of the
Cadillac, handcuffed him, conducted a pat-down search for weapons,
and placed Joubert in the caged back seat of Shoop's car. Shoop
told Joubert that he was not under arrest, but that Shoop was
holding him pending a police investigation concerning the allegedly
stolen car.
Joubert told Shoop he was the registered owner of the
Cadillac and that title to the car was upstairs in his apartment.
Joubert, however, had not reported ownership of the Cadillac to his
parole officer. Joubert asked Shoop to remove the handcuffs so he
could prove ownership, but Shoop refused.
Anchorage Police Officers Philip Kantor and Mitch Kehr
arrived on the scene. Shoop told the officers that he had searched
and handcuffed Joubert and that Joubert claimed that the title to
the Cadillac was in his apartment. One officer radioed APD dispatch
and received confirmation that the Cadillac was reported stolen.
Officer Kantor removed Joubert from Shoop's car and
replaced Shoop's handcuffs with his own set, cuffing Joubert's hands
behind his back. Officer Kantor conducted his own pat-down search
of Joubert. Kantor felt something small and hard in Joubert's right
front pants pocket area. Officer Kantor could not identify the item
but suspected it could be a small weapon. Kantor lifted Joubert's
sweatshirt to look in the right front pocket area. He saw what
appeared to be a rock of crack cocaine protruding from the right
front watch pocket of Joubert's jeans. Officer Kantor seized that
first rock. He searched in the same pocket and found and seized a
second rock of crack cocaine. Officer Kantor also found a velvet
bag in a pocket of Joubert's sweatshirt and removed it. A search
of that bag revealed more rocks of cocaine. The police arrested
Joubert for cocaine possession and theft of the Cadillac.
Despite reports that the Cadillac was stolen, the car was
legally registered to Joubert. The State indicted Joubert for
third-degree misconduct involving a controlled substance. Joubert
moved to suppress the evidence found by Officer Kantor following his
pat-down search.
Superior Court Judge Milton M. Souter held an evidentiary
hearing. At the evidentiary hearing on Joubert's motion, Officer
Kantor testified as follows:
Q And when you got toward the area of
his right pocket, you felt hard objects?
A Yes.
Q They were small?
A Yes.
Q Did you move your hands around the
small objects to determine their size?
A No.
Q Did you place your hand on them and
immediately determined they were small?
A I came up on the right side of his
leg and when I came to the right top front pocket, I just felt
something hard.
Q "Something hard." Did it feel like
a gun?
A No.
Q Did it feel like a knife?
A Don't know. Razor blade, don't know.
Something small, don't know.
Q Could you describe it was small,
was it round?
A Couldn't tell.
Q Was it long? Did it have a length
dimension?
A Well, it had a length dimension but
it was small. All I can say is it was just small and hard.
Q And it protruded?
A It protruded enough for me to feel
it.
Q And you were able to determine that
by placing your hand over the object?
A On the outside of the pocket, yes.
Q On the outside of the pocket.
A Yes.
Q Did you move your hand at all?
A Probably. I don't recall.
Q And did you feel that this object was
an explosive in any way?
A I didn't know -- I don't know.
Probably not, but you never know.
Q You were concerned essentially that
it was a razor blade?
A My concern essentially was that I
didn't know what it was.
Q In your experience, had you
encountered razor blades in that area of . . .
A Yes, I have.
Q Had you ever encountered anything of
that dimension that was a weapon?
A Small little pocket knifes. Probably
not that small.
Q So this felt smaller than a pocket
knife?
A Than an average size -- than a normal
sized pocket knife that people carry, yes.
Q And Mr. Joubert's hands are behind
him?
A Yes.
Q Would he have been able to reach into
that pocket?
A Probably not, but I've had people do
some limber movements while they were
in cuffs and be able to get to their front pockets in the past.
Judge Souter rejected Officer Kantor's testimony that Kantor
suspected a weapon when he felt what turned out to be the first rock
of crack cocaine. Nevertheless, Judge Souter concluded that the
search was justified as a parole search at the request of Parole
Officer Shoop and denied Joubert's motion to suppress.
At trial, the evidence established that Officer Kantor did
not act at the request or at the direction of Shoop. In light of
this evidence, Joubert moved Judge Souter to reconsider his ruling
that the search of Joubert was justified as a parole search. Judge
Souter reconsidered his ruling. As part of his reconsideration,
Judge Souter examined the rocks of cocaine admitted into evidence
at trial. Again, Judge Souter declined to suppress the evidence.
As part of his decision, Judge Souter made the following findings:
[A]t the time of the suppression hearing,
relying on what I saw and heard but without the opportunity to feel
the evidence which is a big difference, I ruled that Officer
Kantor's stated suspicion that these two rocks of cocaine might be
a small knife or razor was ludicrous. That's wrong. Considering
that the defendant was wearing jeans[,] that these two so-called
rocks of cocaine were in his watch pocket and that they were also
covered by the thickness of his sweatshirt, there is no doubt in my
mind at this point after having myself felt these two rocks of
cocaine, physically, for the first time, there's no doubt in my mind
that Officer Kantor's suspicion that this might be a small knife or
a razor blade was reasonable. That's a reasonable suspicion based
on articulable facts.
Joubert was convicted as charged and sentenced to a
presumptive 6-year term.
Discussion
We assume for purposes of deciding this case that Officer
Kantor was permitted to frisk Joubert for weapons. Joubert was
handcuffed with his hands behind his back. If Joubert had been able
to reach and retrieve whatever was in his front pocket, Joubert
still faced superior police power and still had his hands cuffed
behind his back. Officer Kantor testified that the small, hard
object was not a gun. He did not testify that he actually suspected
that the small, hard object was a weapon. He indicated that he did
not know what the small, hard object was. Furthermore, nothing in
the record suggests that there were any other potentially hostile
threats to the safety of the officers in the vicinity that would
have deflected their attention from Joubert. We conclude that in
the circumstances of this case, the limited search for weapons
authorized by Terry v. Ohio [Fn. 2] and Coleman v. State [Fn. 3] did
not justify Officer Kantor's inspection of Joubert's pocket area
after he felt something small and hard.
This conclusion is favored by Professor LaFave in his
treatise on Fourth Amendment search and seizure law. [Fn. 4] LaFave
credits the decision of the California Supreme Court in People v.
Collins [Fn. 5] with advancing the sensible consideration of what
type of object could be employed as a weapon in the setting of the
case. As Professor LaFave notes: "certain items which might be
employed as weapons in a surprise attack from the rear would not be
effective during the face-to-face encounter of a field
interrogation." [Fn. 6] Therefore, we conclude that Officer
Kantor's additional intrusion which discovered the rocks of cocaine
in Joubert's pocket was not authorized by the limited search for
weapons allowed during an investigative stop.
Next, we assume that the police officers were entitled to
arrest Joubert for theft of the car. A search that precedes an
arrest can be justified as incident to arrest as long as the fruits
of the search are not required to establish probable cause for the
search. [Fn. 7] Here, Joubert's arrest for theft of the car and
possession of cocaine followed Officer Kantor's discovery of the
cocaine. But we ruled above that Officer Kantor's discovery of the
cocaine following the pat-down search was not justified, so that
evidence could not be used to establish probable cause for Joubert's
arrest for cocaine possession. Therefore, Officer Kantor was not
authorized to search Joubert for evidence of cocaine possession.
Federal law permits a police officer to search all of the
person and any possessions found upon the person incident to arrest.
[Fn. 8] But Alaska law is more restrictive. In Zehrung v. State,
the Supreme Court of Alaska held that a police officer may search
a person incident to arrest only for weapons or for evidence of the
crime for which the police arrested the person. [Fn. 9] Here,
Officer Kantor testified that he was not searching Joubert for
evidence of the theft of the Cadillac. Furthermore, the State has
not argued that there could have been evidence on Joubert's person
that would have been evidence of a stolen vehicle. Therefore, we
must determine under Alaska law whether the scope of Officer
Kantor's search that discovered the cocaine exceeded the permissible
scope of a search for weapons incident to arrest.
We recognize that a search for weapons incident to arrest
may be more intrusive than a pat-down search for weapons in an
investigative stop. Following an arrest, a police officer and a
defendant may be in contact for an extended period compared with the
limited face-to-face contact during an investigatory stop. Still,
we applied Zehrung in Jackson v. State to hold that a search for
weapons incident to an arrest must be limited to an examination of
articles that could hold a weapon of normal size unless a police
officer has an articulable basis for suspicion that the arrestee is
carrying an unusually small weapon. [Fn. 10]
The record here contains Officer Kantor's uncertainty
about what may have been in Joubert's pocket: "Don't know. Razor
blade, I don't know. Something small, don't know. . . . It could
have been a small pocket knife. It could have been a typical razor
or the sheathing that goes on top of a razor." But the State did
not present evidence that the police had an articulable suspicion
that Joubert was armed with an atypical weapon as discussed in
Jackson.
We conclude that the evidence in this record does not
support a conclusion that the State presented an articulable
suspicion that Joubert was armed with an atypical weapon. To the
extent that Judge Souter's findings during trial contradict our
conclusion, we conclude that those findings are clearly erroneous.
Because the State did not present sufficient evidence that Officer
Kantor had an articulable suspicion that Joubert had an atypical
weapon in his pocket, the superior court's order denying the motion
to suppress must be reversed.
Conclusion
The judgment of the superior court is REVERSED.
MANNHEIMER, Judge, concurring.
I join in the decision to reverse Joubert's conviction.
All of the charges against Joubert stem from the fact that
a police officer searched Joubert's clothing after feeling two pea-
sized rocks of cocaine in the watch pocket of Joubert's jeans. The
resolution of this case thus hinges on the answer to the following
question: When a police officer conducts a pat-down search for
weapons and feels a small, hard object in the suspect's clothing
an object too small to be a normal weapon may the officer lawfully
remove the object and inspect it?
Based on this court's decision in Jackson v. State [Fn.
1] and the California Supreme Court's decision in People v. Collins
[Fn. 2], I conclude that such an intrusion is permitted only under
certain circumstances: The officer may remove and inspect the small
object only if the officer has articulable reason to suspect that
the person being searched is armed with an atypical weapon, a weapon
that would feel like the small object the officer has felt during
the pat-down.
In Joubert's case, the State failed to offer specific and
articulable facts to support a reasonable belief that Joubert was
carrying an atypically small weapon. I therefore conclude that the
superior court should have granted Joubert's suppression motion.
The facts of the case, and Judge Souter's ruling
As described in Judge Stewart's opinion, Joubert's parole
officer detained Joubert on suspicion of driving a stolen vehicle.
The police arrived a few minutes later, and they assumed custody of
Joubert. One of these officers, Officer Kantor, patted down
Joubert's outer clothing, looking for weapons. Through Joubert's
sweatshirt, Kantor felt two solid, pea-sized objects in the watch
pocket of Joubert's jeans. Kantor lifted Joubert's sweatshirt,
looked at the pocket, and saw what appeared to be a rock of cocaine.
He seized this object, and he then conducted a more intensive search
of Joubert's person, discovering other drugs in the process.
When Officer Kantor was questioned about this search, he
offered lukewarm reasons for his initial intrusion into Joubert's
clothing:
KANTOR: [W]hen I came up to [Joubert's]
right top front pocket, I just felt something
hard.
DEFENSE ATTORNEY: "Something hard." Did
it feel like a gun?
KANTOR: No.
DEFENSE ATTORNEY: Did it feel like a
knife?
KANTOR: Don't know. Razor blade, [I]
don't know. Something small. Don't know.
. . .
DEFENSE ATTORNEY: [D]id you feel that
this object was an explosive ... ?
KANTOR: I didn't know; I don't know.
Probably not, but you never know.
DEFENSE ATTORNEY: You were concerned,
essentially, that it was a razor blade?
KANTOR: My concern, essentially, was that
I didn't know what it was.
Following this exchange, the prosecuting attorney asked a series of
questions designed to bolster the foundation for the search:
PROSECUTOR: Why did you look at
[Joubert's] pocket after you felt those hard
objects?
KANTOR: Because I wanted to see what it
was. [sic]
PROSECUTOR: Okay. And what was your
concern?
KANTOR: Weapon. Safety.
PROSECUTOR: [Is there any] weapon you can
think of that would have been consistent with
what you felt?
KANTOR: It could have been a small pocket
knife. It could have been a typical razor, or
the sheathing that goes on top of a razor. It
could have been something.
Judge Souter initially dismissed this testimony as
incredible. The judge declared that nothing in Joubert's pocket
suggested the presence of a weapon.
THE COURT: [Joubert's pocket contained]
two tiny little rocks, little pebbles of what
apparently turned out to be cocaine. I cannot
believe that these felt like a weapon. [It is
ludicrous to suggest that] any reasonable
person ... would have ever reasonably suspected
that those two little pebbles were somehow a
weapon ... . There's no way that that was a
weapon[.]
Nevertheless, Judge Souter concluded that the search was
legal even though the officer had no reason to believe that Joubert
was armed. The judge upheld the search as incident to a parole
arrest.
Then, weeks later (during Joubert's trial), it became
apparent that Joubert's parole officer had never arrested him, nor
had the parole officer ordered the police officers to arrest Joubert
on his behalf. Judge Souter thus had to reconsider his ruling on
Joubert's suppression motion.
This time, Judge Souter concluded that Kantor had
conducted a valid pat-down search of Joubert's clothing for weapons.
The judge decided that, under the circumstances, Kantor reasonably
suspected that the "two little pebbles" in Joubert's pocket "might
be a small knife or razor blade. ... A small pistol [or] a small
knife, either one."
Alaska's Restriction on Pat-Down Searches: the limita-
tions suggested by the Alaska Supreme Court in Zehrung v.
State and adopted by this court in Jackson v. State
Joubert's case is simply one instance of a more general
problem: balancing an individual's interest in personal privacy
against the twin law enforcement interests of protecting police
officers and discovering evidence of a crime. In Terry v. Ohio [Fn.
3] and Sibron v. New York [Fn. 4], the United States Supreme Court
held that, because of society's interest in protecting police
officers from violence, police officers are authorized to conduct
a warrantless pat-down search for weapons during an investigative
stop if there is reason to believe that the suspect may be armed.
Thirty years later, no one disputes that police officers may pat
down a suspect's clothing in search of firearms, knives, or other
weapons if there is ground for apprehension. [Fn. 5] The problem
has been to find a way to limit these "pat-down" searches, so that
a police officer's authority to look for weapons does not become an
implicit authority to conduct a full body search.
The authority to conduct a pat-down search, like all
exceptions to the warrant requirement, is founded on practical
necessity. As Justice Rabinowitz noted in his dissenting opinion
in McCoy v. State [Fn. 6],
Possession of cocaine is a serious
violation of our laws ... [.] Yet ... the fundamental rights
expressed in [the search and seizure clause] of the Alaska
Constitution must be considered. ... What is involved in this
appeal [is] the constitutionally protected ... security of the
persons, papers, and effects of all citizens, including [this
defendant], against unreasonable governmental searches and seizures.
It is a fundamental premise of search and seizure law that
warrantless searches searches conducted without prior judicial
approval
are per se unreasonable under the Fourth
Amendment [except for] a few specifically established and well-
delineated exceptions. [These] exceptions are jealously and
carefully drawn ... .
Coolidge v. New Hampshire, 403 U.S. 443, 454-55; 91 S.Ct. 2022,
2032; 29 L.Ed.2d 564, 576 (1971) (footnotes and internal quotations
omitted). As Justice Rabinowitz elaborated in his McCoy dissent,
The basic protection afforded by [the federal
and state] constitutional guarantees [against unreasonable search
and seizure] is to shield the individual's privacy against
generalized exploratory intrusions by government officials. Unless
all exceptions to the search warrant provisions are carefully drawn
to require a showing of necessity for any departure from the warrant
requirement, these constitutional prohibitions will be rendered
ineffectual. The need to draw these exceptions carefully is of
paramount significance because the great bulk of searches, both of
the person and of premises, are warrantless searches ... .
McCoy, 491 P.2d at 141.
Twenty years ago, in Zehrung v. State [Fn. 7], the Alaska
Supreme Court took a step toward limiting the scope of warrantless
searches. Rejecting federal law on this subject, the Alaska Supreme
Court ruled that the Alaska Constitution limits the intensity of the
search that police officers can perform on an arrestee. The court
held that, absent articulable facts warranting a greater intrusion,
police officers conducting a search incident to an arrest can only
search the arrestee for weapons or for evidence of the suspected
crime (if the suspected crime is the type of offense that would
normally generate evidence that could be concealed on the arrestee's
person). [Fn. 8]
Although Zehrung dealt with searches incident to arrest
(rather than pat-down searches during investigative stops), footnote
39 of the Zehrung opinion [Fn. 9] is important to the resolution
of Joubert's case. In this footnote, the supreme court indicated
that even though the Alaska Constitution authorizes police officers
to search an arrestee for weapons, there are limitations on the
intensity of a weapons search. The court stated that,
as to the permissible extent and limitations on
the scope of such a warrantless search [for
weapons], see People v. Brisendine, ... 531 P.2d 1099, 1107-09
([Cal.] 1975). See also, People v. Collins, ... 463 P.2d 403, 406-
08 ([Cal.] 1970).
The two California cases cited in this footnote are instructive
regarding the limits placed on investigative searches for weapons.
In Collins, a police officer conducting a pat-down search
felt a "lump" in the suspect's pocket. "Thinking it was a weapon",
the officer reached into the pocket and pulled out the "lump"
which turned out to be a baggie of marijuana. [Fn. 10] The
California Supreme Court held that this search was illegal:
In balancing the safety of police officers
against the Fourth Amendment's proscription of unreasonable
intrusions, ... a police officer [conducting a pat-down search for
weapons] must be limited to "a careful exploration of the outer
surfaces of [the] person's clothing" (Terry v. Ohio, ... 392 U.S.
[1,] 16, 88 S.Ct. [1868,] 1877 [(1968)]) until and unless [the
officer] discovers specific and articulable facts reasonably
supporting [the] suspicion [that the person is armed]. Only then
may an officer exceed the scope of a pat-down and reach into the
suspect's clothing for the limited purpose of recovering the object
thought to be a weapon.
Collins, 463 P.2d at 406. The court continued:
Feeling a soft object in a suspect's
pocket during a pat-down ... [normally] does not warrant an
officer's intrusion into a suspect's pocket to retrieve the object.
... To permit officers to exceed the scope of a lawful pat-down ...
by relying upon mere speculation that the object might be a razor
blade concealed in a handkerchief, a "sap," or any other atypical
weapon would be to hold that possession of any object ... invites
a plenary search of an individual's person. Such a holding would
render [the limitations on pat-down searches] meaningless.
Id. The California Supreme Court accordingly held that an officer
conducting a pat-down for weapons may delve into a suspect's
clothing or possessions only when (1) the pat-down discloses an
object "which feels reasonably like a knife, gun, or club", or (2)
when the officer is aware of "specific and articulable facts which
reasonably support [the] suspicion that the particular suspect is
armed with an atypical weapon which would feel like the object felt
during the pat-down." [Fn. 11]
The California court had occasion to visit this issue
again in Brisendine. In Brisendine, police officers opened a
suspect's backpack during a search for weapons; they discovered an
opaque plastic bottle and a pair of envelopes. They then opened
these objects and found drugs. [Fn. 12] The California Supreme
Court held that the search of these objects was illegal. In
particular, the California court rejected the government's argument
that these opaque objects might have contained weapons:
In the ordinary Terry-type pat-down, ...
an intrusion further than the outer clothing of the suspect is
allowable only if the initial limited exploration discloses
potential instruments of assault. To properly exceed the scope of
a pat-down[,] the officer must be able to point to "specific and
articulable facts reasonably supporting [the] suspicion" that the
suspect is armed. ...
[The search in Brisendine's case cannot be
justified] by the assertion that the bottle and envelopes might
possibly have contained unusual or atypical weapons. In People v.
Collins, ... we rejected that [same] contention as applied to a
"little lump" felt during the course of a pat-down. ... Collins
[established] the rule that "an officer who exceeds [the normal
scope of] a pat-down without first discovering an object which
reasonably feels like a knife, gun, or club must be able to point
to specific and articulable facts which reasonably support a
suspicion that the particular suspect is armed with an atypical
weapon which would feel like the object felt during the pat-down."
Brisendine, 531 P.2d at 1107-08 (citations omitted).
This court adopted these limitations on pat-down searches
in Jackson v. State. [Fn. 13] In Jackson, a police officer arrested
the defendant on an outstanding warrant and then conducted a pat-
down search of his clothing. During this pat-down, the officer
located a wallet in Jackson's breast pocket; the wallet measured 3
inches by 2 inches by a half-inch. [Fn. 14] The officer removed
this wallet from Jackson's pocket and then proceeded to search it,
ostensibly for weapons. But instead of weapons, the officer found
a small baggie of white powder (which proved to be cocaine). [Fn.
15] The officer testified that he performed this search because he
had previously encountered razor blades, stiletto knives, and other
small sheathed knives that could be concealed inside a container the
size of Jackson's wallet. [Fn. 16]
In analyzing and ultimately rejecting this offered
rationale for the search of Jackson's wallet, this court discussed
the Collins and Brisendine cases at length. [Fn. 17] We also noted
that "[n]o Alaska appellate decision has permitted a search of a
container so small that it could hold only a razor blade, small pen
knife, needle, or safety pin." [Fn. 18] Ultimately, we held that
when the police search an arrestee for weapons, the officers may
search only "the person of the arrestee and any containers
associated with the arrestee's person which [reasonably] may contain
a gun, a large knife, or a club." [Fn. 19] Police officers are not
authorized to search "smaller containers which could only contain
atypical weapons such as a razor blade, a small knife, a safety pin,
or a needle" unless the government can point to "specific and
articulable facts which would lead a reasonable person to believe
that such an atypical weapon was in the small container". [Fn. 20]
Returning to the facts of Joubert's case, Officer Kantor
felt something small and hard in the watch pocket of Joubert's
jeans, so he decided to seize this object and examine it. Given
this court's holding in Jackson, this type of warrantless seizure
must be examined closely.
One obvious distinction between Joubert's case and Jackson
is that Jackson involved two searches: the pat-down search that
yielded the wallet, then the seizure and further search of this
wallet to see if it contained weapons. In Jackson, the
incriminating evidence was discovered during the search of Jackson's
wallet, and thus the Jackson court did not have to consider the
validity of the officer's initial decision to remove Jackson's
wallet from his clothes. Technically speaking, this court only
invalidated the second search the intrusion into the wallet. One
might therefore argue that Jackson has little to say about Joubert's
case because, in Joubert's case, there was no second intrusion:
the officer conducted the pat-down and then, based on what he felt,
he lifted Joubert's sweatshirt, thus revealing a rock of cocaine to
plain view.
Despite this distinction, I conclude that Jackson governs
Joubert's case. Although the Jackson court never addressed the
legality of the officer's initial decision to remove Jackson's
wallet from his breast pocket, Jackson's holding strongly suggests
that even this initial intrusion was illegal. Jackson holds that
a pat-down search for weapons must be confined to a search for
"normal" or "typical" weapons in the absence of a reasonable
suspicion that atypical weapons are present. This being the law,
it is difficult to justify the officer's seizure of the wallet from
Jackson's pocket. The wallet was not big enough to hold a typical
weapon "a gun, a large knife, or a club" and the wallet did not
feel like a weapon itself.
The California Supreme Court has invalidated the seizure
of evidence under similar circumstances. One example is the Collins
case, discussed above. In Collins, the police officer seized a
"lump" from the suspect's pocket a lump that turned out to be a
baggie of marijuana. As explained above, the California court held
that the officer violated the state constitution when the officer
"intru[ded] into [the] suspect's pocket to retrieve the object".
To permit officers to exceed the scope of a
lawful pat-down ... by relying on mere speculation that the object
might be a razor blade concealed in a handkerchief, a "sap," or any
other atypical weapon would be to hold that possession of any object
... invites a plenary search of an individual's person. Such a
holding would render [the limitations on pat-down searches]
meaningless.
Collins, 463 P.2d at 406. Similarly, in People v. Leib [Fn. 21],
an officer conducting a pat-down search felt a "small round object"
in the defendant's pants pocket; the object was "two inches long and
a half inch in diameter". To the officer, this object felt like a
plastic bottle. [Fn. 22] The California court held that the officer
acted illegally when he seized this object from the pants pocket.
[Fn. 23]
In Francis v. State [Fn. 24], an officer conducting a pat-
down seized a "medium" hard, round object "slightly larger than a
human forefinger". [Fn. 25] This object turned out to be a bag of
heroin. Despite the officer's testimony that the object "possibly
could have been a knife", the Oklahoma court held that the officer
acted illegally when he seized this object, since no reasonable
person would have believed the object to be a weapon. [Fn. 26]
This approach to pat-down searches and seizures is
endorsed by Professor Wayne R. LaFave in his work, Search and
Seizure: A Treatise on the Fourth Amendment (3rd ed. 1996),
sec. 9.5(c), Vol. 4, pp. 276-280. As Professor LaFave notes, "it
'will be a rare case in which ... an officer [conducting a pat-down
search] will not come upon some object ... secreted in the apparel
of the suspect.'" [Fn. 27] And because "something of the size and
flexibility of a razor blade could be concealed virtually anywhere"
[Fn. 28], a pat-down search for weapons could potentially become the
pretext for a complete search of the suspect's person and clothing.
To prevent pat-down searches from becoming "plenary search[es] of
an individual's person" [Fn. 29], LaFave endorses the rule that an
intrusion into the suspect's clothing should be permitted only when
the object felt during the pat-down has a size, shape, and density
consistent with a weapon. [Fn. 30]
Of course, if the initial pat-down inspection reveals
something that feels like a weapon, further intrusion and inspection
is justified. For instance, in People v. Mosher [Fn. 31], the
California Supreme Court upheld a further intrusion when, during the
initial pat-down, the officer felt a "sharp object like a knife
blade". Even though the object turned out to be a watchband, the
court concluded that the seizure was reasonable because the object
felt like a weapon when touched through the suspect's clothing. But
although the court upheld the seizure of the watchband, the court
was careful to distinguish the watchband (which could reasonably be
taken for a knife blade) from "[a] box of matches, ... a container
of pills, a wallet, coins, folded papers, and ... other small items
... [that] do not ordinarily feel like weapons." [Fn. 32]
This is not to say that courts uniformly scrutinize pat-
down searches carefully. Some courts have been quite ready to
sustain a pat-down seizure on what can only be deemed speculative
grounds. For instance, in People v. Day [Fn. 33] the court upheld
an officer's seizure of a rectangular object measuring approximately
1« inches square by ¬ inch deep, based on the officer's speculation
that this object might have been (or might have contained) a wrapped
razor blade. The Illinois court stated:
While this court respects the opinions of
Professor LaFave and the justices cited in the Collins case, we
simply do not agree that police officers should be subjected to
danger of injury ... merely because some judges and commentators may
lack the imagination of criminals.
Day, 560 N.E.2d at 488.
The Illinois court's decision probably represents a
respectable school of Fourth Amendment philosophy. But this
accommodating attitude toward pat-down searches and seizures is
inconsistent with Zehrung and Jackson. Under Jackson (and the
California cases that Zehrung and Jackson cite with approval),
police officers conducting a pat-down search for weapons are not
authorized to retrieve and inspect all objects that might
conceivably be an atypical weapon or that might conceivably house
an atypical weapon. When officers conduct a pat-down and find
nothing that feels like a typical weapon, the officers are not
authorized to intrude further into the suspect's clothes unless they
can "point to specific and articulable facts" to support a
reasonable belief that the person being searched is armed with an
atypical weapon.
Applying these limitations to Joubert's case
In Joubert's case, the officer conducting the pat-down
search felt two small objects in the watch pocket of Joubert's
jeans. Judge Souter referred to these objects as "two tiny little
rocks, [two] little pebbles". Judge Souter ultimately concluded
that the seizure of these "tiny little rocks" was justified because,
felt through Joubert's clothing, these two small objects "might
[have been] a small knife or razor blade. ... A small pistol [or]
a small knife, either one."
Judge Souter's remark about a "small pistol" is obviously
hyperbole. Even if the hidden objects had completely filled the
watch pocket of Joubert's jeans, they could scarcely have approached
the size of a "small pistol" at least, not any normal pistol.
Moreover, Joubert's attorney asked Officer Kantor directly if the
objects in Joubert's pocket felt like a firearm; the officer replied
"no". Thus, even if Judge Souter truly found that the objects in
Joubert's pocket felt like a small pistol, that finding was clearly
erroneous. [Fn. 34]
Given the dimensions of the watch pocket in a pair of
jeans, it is conceivable that a small knife or a razor blade could
be placed in this pocket. But, as just explained, the fact that the
small object in Joubert's pocket was conceivably a small knife or
razor blade is not sufficient to justify Kantor's search. Under
Jackson, Kantor's search for an atypical weapon of this sort would
be permissible only if the State presented specific and articulable
facts to support a reasonable belief that Joubert in fact had such
a weapon in his pocket.
Even viewing Kantor's testimony in the light most
favorable to the State, this testimony failed to establish the
"articulable and specific facts" required by Jackson. Not only did
Kantor fail to provide articulable reasons for supposing that the
object in Joubert's pants was an atypical weapon; he never even
asserted that he believed the object in Joubert's pocket was an
atypical weapon.
Kantor was repeatedly asked what he thought was in
Joubert's pocket; over and over, Kantor's response was, "Don't
know." Kantor speculated that the object in Joubert's pocket
could have been a small pocket knife[, or it]
could have been a typical razor, or the sheathing that goes on top
of a razor. It could have been something.
The statement that appears to best summarize Kantor's testimony is
the answer he gave when Joubert's attorney asked him if he was
concerned that Joubert might have a razor blade in his pocket.
Kantor answered that his essential concern "was that I didn't know
what [the object] was."
This testimony fails to satisfy Jackson. Instead of the
"articulable and specific facts" required by Jackson, the State's
evidence consisted of "could have been" and "don't know". In
essence, Kantor testified that he searched Joubert's pocket because
he could not definitively rule out the possibility that the pocket
contained a razor blade, a small pen knife, or some other small,
atypical weapon. [Fn. 35] This is precisely what Jackson prohibits.
In Jackson, we held that the State can not justify an
intrusion into a suspect's clothing by showing merely that the
object felt by the officer "could have been" an atypical weapon
that the presence of an atypical weapon could not be ruled out.
Jackson requires the State to present an affirmative reason to
believe that the suspect's clothing contained an atypical weapon.
Even viewing Kantor's testimony in the light most favorable to the
State, it is clear that he offered no articulable and specific facts
to support a reasonable suspicion that the object in Joubert's
pocket was an atypical weapon. Thus, the search of Joubert's pocket
was impermissible under Alaska law.
For these reasons, the cocaine found in Joubert's pocket
must be suppressed, and Joubert's conviction must be reversed.
COATS, Chief Judge, dissenting.
This case involves a search incident to arrest. Under the
leading federal case of United States v. Robinson, [Fn. 1] once a
suspect is arrested based upon probable cause, the police may
conduct a full search of the suspect's person for weapons and
evidence. Alaska law differs. If a person is arrested for a crime
where evidence of that crime could be concealed on the suspect, the
police can search for evidence of the crime for which the person was
arrested. [Fn. 2] Where no evidence of the crime for which the
suspect was arrested could exist on their person, the police may
conduct a search for weapons. Under Alaska law, the police can
certainly conduct a pat-down search for typical weapons such as a
knife, gun, or club. [Fn. 3] The case before us raises the question
of the authority of the police to conduct a search incident to a
lawful arrest for atypical weapons.
We last visited this question in Jackson v. State. [Fn.
4] In Jackson, the suspect was arrested under authority of an
arrest warrant which had been issued for failure to appear on
shoplifting and driving while license suspended charges. [Fn. 5]
However, the arresting officer was not aware of the underlying
charges supporting the warrant. While placing Jackson under arrest,
the arresting officer conducted a search of Jackson which included
a search of Jackson's wallet. The officer stated that the reason
he searched Jackson's wallet was to ensure that the wallet did not
contain razor blades or other atypical weapons. During the wallet
search, the officer discovered cocaine. Jackson was charged with
cocaine possession. Jackson moved to suppress the evidence. The
trial court denied the motion. On appeal, this court explored the
authority of police officers to search for weapons under Alaska law
in conducting a search incident to arrest.
This court recognized a crucial distinction between a pat-
down search conducted during an investigative stop and a search
incident to arrest. The court quoted from Justice Thurgood
Marshall's dissent in United States v. Robinson:
[An investigative] stop involves a momentary
encounter between officer and suspect, while an in-custody arrest
places the two in close proximity for a much longer period of time.
If the individual happens to have a weapon on his person, he will
certainly have much more opportunity to use it against the officer
in the in-custody situation. The prolonged prox-imity also makes
it more likely that the individual will be able to extricate any
small hidden weapon which might go undetected in a weapons frisk,
such as a safety pin or razor blade. In addition, a suspect taken
into custody may feel more threatened by the serious restraint on
his liberty than a person who is simply stopped by an officer for
questioning, and may therefore be more likely to resort to force.[
[Fn. 6]]
We noted Justice Marshall's observation that the police discovered
the contraband on Robinson during the search of a cigarette package.
Justice Marshall concluded that, if the police were concerned about
safety, they always had the option to impound the cigarette package.
A search was therefore unnecessary. [Fn. 7]
In Jackson we also relied on a California Supreme Court
case, People v. Brisendine. [Fn. 8] In Brisendine, the defendant
was arrested at a remote campsite on a minor charge. The officer
searched the arrestee's knapsack, ostensibly for weapons, and found
drugs. We quoted the following language:
[An] officer who exceeds a pat-down
without first discovering an object which feels reasonably like a
knife, gun, or club must be able to point to specific and
articulable facts which reasonably support a suspicion that the
particular suspect is armed with an atypical weapon which would feel
like the object felt during the pat-down.
. . .
Typically in cases of warrantless weapons
searches the police must be able to point to specific and
articulable facts which reasonably justify a belief that the suspect
is armed. In the ordinary citation situation the fact of the arrest
alone will not supply this justification and additional facts must
be shown. In the case of transportation in the police vehicle,
however, or in the analogous circumstances here, the necessity of
close proximity will itself provide the needed basis for a
protective pat-down of the person. To intrude further than a pat-
down, the officer must provide additional specific and articulable
facts necessitating the additional intrusion.[ [Fn. 9]]
In Jackson we stated our holding as follows:
We therefore conclude that a search
incident to an arrest, where no evidence of the crime charged could
exist on the person, may extend to the person of the arrestee and
any containers associated with the arrestee's person which may
contain a gun, a large knife, or a club. Search of smaller
containers which could only contain atypical weapons such as a razor
blade, a small knife, a safety pin, or a needle must be supported
by specific and articulable facts which would lead a reason-able
person to believe that such an atypical weapon was in the small
container.[ [Fn. 10]]
Applying this analysis, we suppressed the evidence which the officer
found in Jackson's wallet.
Thus, Jackson clearly stands for the proposition that an
officer cannot search a wallet, backpack, or other closed container
for atypical weapons without "specific and articulable facts which
would lead a reasonable person to believe that such an atypical
weapon was in the small container." [Fn. 11] But the law is less
clear about how to treat a search for atypical weapons on the
suspect's person which are not in a container.
It seems to me that an atypical weapon in a container such
as a wallet or a backpack can be distinguished from a razor blade
or other atypical weapon which is on the suspect's person. First,
a person generally has a higher expectation of privacy in a
container such as a wallet. Second, as Justice Marshall pointed out
in his dissent in Robinson, if the police suspect a razor blade in
a wallet or backpack, they do have the option of seizing the item
and keeping it away from the suspect. If a suspect has a razor
blade in his wallet or in his backpack, a search for that item would
involve a major invasion of privacy. If we were to allow that sort
of intrusion, there seems little reason not to adopt the federal
rule stated in Robinson. Yet, when the razor blade is located on
the suspect, the balance is less clear. There is a stronger case
for allowing a search to promote officer safety.
In analyzing the testimony in the present case, we are to
look at the facts in the light most favorable to the prevailing
party, the state. Officer Kantor's testimony is set out on pages
4-6 of Judge Stewart's majority opinion. As I read Officer Kantor's
testimony, he felt something small and hard in the suspect's pocket
which he could not identify. He stated he was concerned that the
object might be a weapon, similar to a small knife or a razor blade.
Officer Kantor conceded that he did not know what the item was, but
he testified he was concerned that it might be a small weapon.
Judge Souter originally concluded that Officer Kantor's
conclusion that the two rocks of cocaine could feel like a knife or
razor blade was preposterous. Yet after actually examining the
rocks of cocaine, Judge Souter arrived at a different conclusion.
He stated:
[A]t the time of the suppression hearing,
relying on what I saw and heard but without the opportunity to feel
the evidence which is a big difference, I ruled that Officer
Kantor's stated suspicion that these two rocks of cocaine might be
a small knife or razor was ludicrous. That's wrong. Considering
that the defendant was wearing jeans[,] that these two so-called
rocks of cocaine were in his watch pocket and that they were also
covered by the thickness of his sweatshirt, there is no doubt in my
mind at this point after having myself felt these two rocks of
cocaine, physically, for the first time, there's no doubt in my mind
that Officer Kantor's suspicion that this might be a small knife or
a razor blade was reasonable. That's a reasonable suspicion based
on articulable facts.
Upon examining the evidence and evaluating Officer Kantor's
testimony, Judge Souter concluded that Officer Kantor had reasonable
suspicion that Joubert might have had a small knife or razor blade
in his pocket. In my view this finding would support Officer
Kantor's search of Joubert's pocket to make sure that he did not
have such a weapon. I accordingly dissent from the decision to
suppress the evidence seized as a result of that search.
FOOTNOTES
Footnote 1:
AS 11.71.030(a)(1).
Footnote 2:
392 U.S. 1, 27 (1968).
Footnote 3:
553 P.2d 40, 46 (Alaska 1976).
Footnote 4:
See 4 Wayne R. LaFave, Search and Seizure: A Treatise on the
Fourth Amendment sec. 9.5(c), at 276-80 (3d ed. 1996).
Footnote 5:
463 P.2d 403 (Cal. 1970).
Footnote 6:
LaFave, supra note 4, at 278.
Footnote 7:
See Rawlings v. Kentucky, 448 U.S. 98, 110-11 (1980).
Footnote 8:
See United States v. Robinson, 414 U.S. 218, 235-36 (1973).
Footnote 9:
See 569 P.2d 189, 199-200 (Alaska 1977).
Footnote 10:
See 791 P.2d 1023, 1028 (Alaska App. 1990).
FOOTNOTES (Concurrence)
Footnote 1:
791 P.2d 1023 (Alaska App. 1990).
Footnote 2:
463 P.2d 403 (Cal. 1970).
Footnote 3:
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Footnote 4:
392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).
Footnote 5:
See Free v. State, 614 P.2d 1374, 1378-79 (Alaska 1980).
Footnote 6:
491 P.2d 127, 140 (Alaska 1971).
Footnote 7:
569 P.2d 189 (Alaska 1977).
Footnote 8:
569 P.2d at 199-200.
Footnote 9:
See id.
Footnote 10:
See Collins, 463 P.2d at 405.
Footnote 11:
Id. at 406.
Footnote 12:
See People v. Brisendine, 531 P.2d 1099, 1102 (Cal. 1975).
Footnote 13:
791 P.2d 1023 (Alaska App. 1990).
Footnote 14:
See id. at 1024.
Footnote 15:
See id.
Footnote 16:
See id.
Footnote 17:
See id. at 1026-28.
Footnote 18:
Id. at 1028.
Footnote 19:
Id.
Footnote 20:
Id.
Footnote 21:
548 P.2d 1105 (Cal. 1976).
Footnote 22:
See id. at 1106.
Footnote 23:
See id. at 1108-09.
Footnote 24:
584 P.2d 1359 (Okla. Crim. App. 1978).
Footnote 25:
Id. at 1363.
Footnote 26:
Id. at 1363-64.
Footnote 27:
LaFave, p. 276 (quoting Cook, "The Art of Frisking", 40
Fordham L.Rev. 789, 796 (1972)).
Footnote 28:
Id., p. 277 (quoting United States v. Del Toro, 464 F.2d 520
(2nd Cir. 1972)).
Footnote 29:
Collins, 463 P.2d at 406.
Footnote 30:
See LaFave, pp. 278-79.
Footnote 31:
461 P.2d 659, 668-69 (Cal. 1969).
Footnote 32:
Id. at 668.
Footnote 33:
560 N.E.2d 482 (Ill. App. 1990).
Footnote 34:
See Bobby v. State, 950 P.2d 135, 138 (Alaska App. 1997)
(noting that the trial court's factual determinations will stand
unless clearly erroneous).
Footnote 35:
Jackson singles out razor blades and small pen knives as
"atypical" weapons. Jackson, 791 P.2d at 1028.
FOOTNOTES (Dissent)
Footnote 1:
414 U.S. 218, 235 (1973).
Footnote 2:
See Jackson v. State, 791 P.2d 1023, 1028 (Alaska App. 1990).
Footnote 3:
See id.
Footnote 4:
Id.
Footnote 5:
See at 1024.
Footnote 6:
Id. at 1026 (quoting Robinson, 414 U.S. at 257-59).
Footnote 7:
See id.
Footnote 8:
531 P.2d 1099 (Cal. 1975).
Footnote 9:
Jackson, 791 P.2d at 1028 (quoting Brisendine, 531 P.2d at
1108-09 (citations omitted)).
Footnote 10:
Id.
Footnote 11:
Id.
