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Dollison v. State (7/14/00) ap-1681
Dollison v. State (7/14/00) ap-1681
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
DARNELL DOLLISON, )
) Court of Appeals No. A-7237
Appellant, ) Trial Court No. 3AN-S98-0003 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1681 July 14, 2000]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Eric T. Sanders, Judge.
Appearances: Paul E. Malin, 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.
Darnell Dollison appeals his conviction for fourth-degree
misconduct involving a controlled substance. [Fn. 1] Dollison was
charged with this crime because a police officer found crack cocaine
in a container that was in Dollison's pocket. Dollison argues that
the cocaine should have been suppressed because the police officer's
search exceeded the permissible scope of a pat-down search for
weapons incident to arrest. We disagree with Dollison's argument
and affirm his conviction.
Dollison also claims that the superior court erroneously
rejected his proposed statutory mitigating factor that he possessed
a "small quantity" of cocaine. We agree with Dollison on this
claim, but Judge Sanders announced that he would not adjust
Dollison's sentence even if he had found the mitigating factor.
Therefore, this error was harmless. Accordingly, we affirm
Dollison's sentence.
Facts and proceedings
Shortly before midnight on December 31, 1997, Anchorage
Police Officer Kevin B. Mitchell saw an individual "sitting way low"
in a Cadillac that had a burned out headlight and was about to pull
into the street. The Cadillac drove onto the street and pulled into
the driveway of a residence. Officer Mitchell pulled up beside the
Cadillac because he saw that Dollison was the driver and he knew
that Dollison had outstanding misdemeanor warrants. Mitchell
approached Dollison, told him that he was under arrest on those
warrants, and handcuffed Dollison's hands behind his back.
Officer Mitchell conducted a pat-down search for weapons.
Mitchell felt a cylindrical object in Dollison's outer shirt pocket
that was "immediately recognizable" as a crack pipe, a device for
smoking crack cocaine. Mitchell asked Dollison if it was his crack
pipe, and Dollison answered that it was. Mitchell removed the
object from Dollison's shirt pocket. It was a crack pipe with
residue in it and, according to Mitchell's observation, "[i]t had
been heavily used." The pipe was a little bigger than a pen.
Mitchell also removed a small Tylenol bottle from
Dollison's pants pocket. Mitchell thought the Tylenol container
could have felt like a weapon, but was not sure what it could have
been. When he removed the Tylenol container from Dollison's pocket,
Mitchell concluded from the container's condition and his own work
experience that the Tylenol container probably contained illegal
drugs. He shook the bottle and heard that there was something
inside. Later, he applied for and obtained a search warrant to open
the container and discovered a rock of crack cocaine inside. The
cocaine weighed .05 grams.
The grand jury indicted Dollison for fourth-degree
misconduct involving a controlled substance, a class C felony.
Dollison moved to suppress the evidence. The State conceded that
Dollison was in custody and that his answer to Officer Mitchell's
question about the crack pipe should be suppressed. Dollison argued
that the pipe and the Tylenol container should also be suppressed
as the fruit of an illegal search. Judge Sanders ruled that Officer
Mitchell was entitled to seize the crack pipe because it felt like
a crack pipe.
Dollison entered a no contest plea preserving his right
to appeal the denial of his motion to suppress. [Fn. 2] Dollison
was a third-felony offender and was therefore subject to a
presumptive sentence of three years. [Fn. 3] Dollison claimed that
the cocaine found in his possession ( .05 grams) was a "small
quantity" for purposes of statutory mitigating factor (d)(14).
Judge Sanders agreed that the quantity that Dollison had in his
possession was "what a lay person would consider . . . small," but
he believed that this court's decision in Knight v. State [Fn. 4]
required him to reject the proposed mitigator. Additionally, Judge
Sanders stated that even if the mitigating factor applied, he would
not adjust Dollison's sentence. Judge Sanders sentenced Dollison
to a 5-year term with 2 years suspended.
Discussion
Was the evidence legally seized?
A law enforcement officer may conduct a protective search
for weapons incident to arrest. [Fn. 5] Under Alaska law, a search
incident to an arrest without a warrant is limited in scope to a
protective search for weapons, or for evidence of the crime for
which the suspect was arrested and which could be concealed on the
suspect's person. [Fn. 6]
Here, Officer Mitchell arrested Dollison on valid
outstanding warrants. After restraining Dollison, Mitchell patted
Dollison down for weapons and located an object that was
"immediately recognizable" as a crack pipe. Mitchell had extensive
experience with crack pipes, seizing "at the very least one a
night." Officer Mitchell removed the crack pipe from Dollison's
pocket and saw that it was heavily used.
Because Officer Mitchell identified the object in
Dollison's exterior shirt pocket as a crack pipe, Officer Mitchell
had probable cause to believe that Dollison was unlawfully
possessing drugs. Thus, following discovery of the pipe, Officer
Mitchell could arrest Dollison for possessing cocaine and could
search any containers on Dollison's person that might plausibly
contain evidence of that crime. [Fn. 7] Even so, Mitchell obtained
a search warrant before he looked into the Tylenol container and
found the small rock of cocaine. Under these facts, Officer
Mitchell was clearly justified to search Dollison incident to arrest
and to seize the crack pipe and the container with the crack
cocaine. We agree with Judge Sanders that this evidence was legally
seized.
Did the superior court apply Knight v. State
correctly when it rejected Dollison's claim that he possessed a
"small quantity" of cocaine?
Dollison argues that Judge Sanders erred by rejecting
proposed mitigating factor (d)(14), that Dollison's offense involved
a small quantity of a controlled substance because Dollison
possessed only .05 grams of cocaine. [Fn. 8] As explained earlier,
Judge Sanders thought that most people would consider this amount
of cocaine "small", but he believed that under Knight he was
required to reject the mitigator. As a proponent of a mitigating
factor, Dollison had the duty to establish the mitigating factor by
clear and convincing evidence. [Fn. 9] Relying on Knight, Dollison
argues that Judge Sanders should have found that he had proven that
the .05 grams that he possessed was a "small quantity."
In Knight, this court ruled that whether a quantity of a
controlled substance is a "small quantity" for purposes of statutory
mitigating factor (d)(14) is primarily a question of fact for the
superior court:
[T]his question ... is primarily one of fact,
not one of law. Within any class of controlled substance, what
constitutes an unusually small or large quantity may vary from case
to case, depending on variables such as the precise nature of the
substance and the form in which it is possessed, the relative purity
of the substance, its commercial value at the time of the offense,
and the relative availability or scarcity of the substance in the
community where the crime is committed. Variations may also occur
over time: what amounted to a typical controlled substance
transaction ten years [ago] might be an exceptional one today. [Fn.
10]
Here, Judge Sanders found that the commercial value of the cocaine
that Dollison possessed was about ten dollars and that the quantity
that Dollison possessed was in fact small. However, because Judge
Sanders had seen a large number of cases where individuals possessed
very small amounts of cocaine, he concluded that Dollison's case was
a typical case. Because the quantity of cocaine that Dollison
possessed was typical of the quantity in many other cases before
Judge Sanders, he concluded that Dollison had not shown that he
possessed an uncharacteristically small quantity of cocaine for
purposes of mitigator (d)(14).
Alaska Statute 11.71.040(a)(1) prohibits the possession
of any amount of cocaine however large or small. Under Knight, a
small quantity under mitigating factor (d)(14) is "a quantity that
is uncharacteristically small in comparison to the broad-middle
ground covered by a typical drug case[.]" [Fn. 11] We take this
opportunity to clarify Knight. The "typical drug case" referred to
in Knight is a drug case where the quantity involved in the case
falls in the broad-middle ground penalized by the statute when
considering the nature of the substance, its form, its purity, its
commercial value, and its relative availability or scarcity. [Fn.
12] The "typical drug case" does not refer to the amount that is
typically prosecuted or the typical case that appears on a judge's
docket.
In Dollison's case, Judge Sanders found that Dollison
possessed .05 grams (less than two thousandths of an ounce) of
cocaine with a commercial value of ten dollars. This appears
indicative of an amount that would be consumed in a single use. The
Knight factors establish that Dollison's case involved a "small
quantity" of cocaine.
However, although Dollison proved mitigating factor
(d)(14), we do not remand this case for resentencing. Judge Sanders
declared that he would not have adjusted Dollison's presumptive 3-
year term even if Dollison had proven mitigator (d)(14). Therefore,
any error in applying Knight was harmless and Dollison's sentence
must be affirmed.
Conclusion
The judgment of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 11.71.040(a)(3)(A) (possession of cocaine).
Footnote 2:
See Cooksey v. State, 524 P.2d 1251 (Alaska 1974).
Footnote 3:
AS 12.55.125(e)(2).
Footnote 4:
855 P.2d 1347 (Alaska App. 1993).
Footnote 5:
See Chimel v. California, 395 U.S. 752, 762-63 (1969); Zehrung
v. State, 569 P.2d 189, 199-200 (Alaska 1977), modified on other
grounds, 573 P.2d 858 (Alaska 1978), Dunn v. State, 653 P.2d 1071,
1079-80 (Alaska App. 1982).
Footnote 6:
See Zehrung, 569 P.2d at 199-200.
Footnote 7:
See Snider v. State, 958 P.2d 1114, 1118 (Alaska App. 1998).
Footnote 8:
AS 12.55.155(d)(14).
Footnote 9:
AS 12.55.155(f).
Footnote 10:
Knight, 855 P.2d at 1349-50.
Footnote 11:
Id. at 1349.
Footnote 12:
Id. at 1349-50.
