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Jones v. State (11/3/00) ap-1699
Jones v. State (11/3/00) ap-1699
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.
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
EVERETT LEON JONES, )
) Court of Appeals No. A-7328
Appellant, ) Trial Court No. 3AN-S98-6117 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1699 - November 3, 2000]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Larry D. Card, Judge.
Appearances: Douglas O. Moody, Assistant
Public Defender, and Barbara K. Brink, Public Defender, Anchorage,
for Appellant. Nancy R. Simel, 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.
COATS, Chief Judge.
The police responded to a 911 call that reported an
argument between a tenant and a landlord. When they arrived at the
scene, the police separated the landlord and the tenant and began
to question them individually about the dispute. When the tenant,
Everett Leon Jones, attempted to walk away from the officers, they
restrained him. When Jones began to resist, he was handcuffed. He
continued to resist the officers, who ultimately searched him,
finding cocaine.
Jones was charged with possession of cocaine and resisting
arrest. The question presented by this case is whether the police
could lawfully restrain Jones at the scene of the dispute. We
conclude that they could not, and that the cocaine that the police
obtained as a result of the illegal restraint must be suppressed.
We therefore reverse Jones's conviction for misconduct involving a
controlled substance in the fourth degree. In addition, we remand
Jones's conviction for resisting arrest for further findings.
On July 20, 1998, in response to a 911 call, officers from
the Anchorage Police Department arrived at the scene of a reported
disturbance between a tenant and landlord. Officer Ryan McNamara
arrived first. He heard yelling from inside the building, but
remained outside. Soon, another officer arrived, and together they
entered the building. Inside, they saw a man and woman arguing in
the hallway. The man was later identified as Everett Jones; the
woman as Lola Strzelewicz, his landlord.
As the officers walked into the hallway, Jones moved away
from Strzelewicz and attempted to pass by Officer McNamara. Officer
McNamara stopped Jones and asked him to step outside so that he
could talk to Jones about the disturbance. Jones replied that he
needed to go to his room down the hall. Officer McNamara then
ordered Jones to step outside. He told Jones that he could go to
his room after McNamara had figured out what had happened. McNamara
later testified that Jones was not free to go at that time.
Jones and McNamara went outside, and Jones began telling
McNamara what had happened. Jones was wearing a fanny pack so that
the pouch was in front; as Jones was talking, he put his hand into
the fanny pack. McNamara ordered Jones not to do that, and Jones
quickly took his hand out of the fanny pack.
Jones then said that he had to go lean some bicycles up
against another side of the house, and began briskly walking away
from McNamara. McNamara stood in his way. Jones stopped and put
his hand inside his fanny pack. McNamara ordered Jones to take his
hand out of his fanny pack and put his hands behind his back so that
McNamara could handcuff him. Jones refused.
McNamara and another officer then handcuffed Jones.
McNamara decided to pat search Jones for weapons. McNamara asked
Jones if Jones had any weapons on him. Jones said he did not.
McNamara first examined the fanny pack. There, he found a small
pocket knife and a "razor blade style box cutting knife," which had
a razor blade mounted in it. McNamara then patted Jones's right
side. McNamara found a small pocket knife in Jones's right front
pocket.
As McNamara patted Jones's right side, Jones, while
handcuffed, began reaching for his left front pocket. The officers
told Jones to stop reaching for his pocket, but Jones did not. The
officers pushed Jones up against the wall and attempted to examine
Jones's left front pocket.
As the officers continued to attempt to search Jones,
Jones continued to twist, kick, and struggle. He continued to
struggle even though three officers were holding him. After a
protracted struggle, the officers were able to search Jones's left
pocket, and found a plastic bag containing crack cocaine.
The state charged Jones with misconduct involving a
controlled substance in the third degree (possessing cocaine with
the intent to deliver) a class B felony, and resisting arrest, a
class A misdemeanor. [Fn. 1] Jones filed a motion to suppress the
cocaine on the ground that the police seized the cocaine illegally
by conducting an illegal investigative stop. Superior Court Judge
Larry D. Card denied this motion.
Jones then proceeded to trial in a court trial before
Judge Card. Judge Card acquitted Jones of misconduct involving a
controlled substance in the third degree, finding that the state had
not presented sufficient evidence that Jones intended to distribute
the cocaine, but he convicted Jones of the lesser-included offense
of possession of cocaine, misconduct involving a controlled
substance in the fourth degree, a class C felony. He also convicted
Jones of resisting arrest. Jones now appeals these convictions.
In Coleman v. State, [Fn. 2] the Alaska Supreme Court
held that investigative stops are permitted only in "cases where the
police officer has a reasonable suspicion that imminent public
danger exists or serious harm to persons or property has recently
occurred." [Fn. 3]
The state relies on State v. G.B., [Fn. 4] for the
proposition that Alaska's courts use a flexible approach in
balancing the seriousness and recency of a suspected crime and the
strength of the officers' suspicion against the intrusiveness of the
stop. It is true that G.B. held that there were no pre-established
classes of crime limiting police authority to make an investigative
stop: "A minimally intrusive stop based on solid information
indicating that a crime is actually in progress or has just been
completed may be justified under Coleman even when the crime itself
is not a felony and involves harm that in other contexts might not
seem particularly serious." [Fn. 5]
But in Jones's case, although the police knew that Jones
was involved in a dispute with his landlord, they had no indication
that Jones had assaulted the landlord or had committed any illegal
act. Accordingly, there was no basis for Officer McNamara to
require Jones to stay at the scene and talk to him, and therefore,
the cocaine that the police later found was seized as the result of
an illegal investigative stop. We therefore conclude that Judge
Card should have granted Jones's motion to suppress this evidence.
Jones concedes that, under Alaska law, even if the police
arrested him illegally, he had no right to resist the arrest. [Fn.
6] However, Jones argues that there was insufficient evidence to
convict him of resisting arrest.
The relevant statute provides that "[a] person commits the
crime of resisting or interfering with arrest if, knowing that a
peace officer is making an arrest [and] with the intent of
preventing the officer from making the arrest, the person resists
. . . arrest . . . by force." [Fn. 7] Jones admits that he knew
that the officers were peace officers and that he struggled. But
he contends that the state did not prove either that the officers
were making an arrest at the time he was resisting, or that Jones
knew this and intended to prevent the officers from making the
arrest.
Judge Card found that Jones resisted the police and this
finding is clearly supported by the record. But Jones initially
resisted an investigative stop and later a search. There is no
evidence that Jones was ever told that he was under arrest.
Although it is not invariably necessary for the state to prove that
a person was explicitly told that he was under arrest in order to
prove that the person knew that he was under arrest, the state must
prove that the defendant was otherwise aware of the arrest. It is
unclear when the police actually arrested Jones, and for what. In
order to convict Jones of resisting arrest, the state had to prove
that the police were arresting Jones, that Jones knew the officers
were arresting him, and that Jones used force with the intent to
prevent the officers from making the arrest. Since Judge Card's
findings did not focus on these elements, and the existence of these
elements is not obvious from the record, we conclude that we should
remand this case to Judge Card for further findings.
The case is remanded to the superior court. On remand,
the court shall dismiss the charge of misconduct involving a
controlled substance in the fourth degree. The court shall, within
sixty days, reconsider and make additional findings on the charge
of resisting arrest. In the event that the superior court makes
findings convicting Jones of this offense, the parties will have
thirty days after the issuance of those findings to submit memoranda
addressing those findings to this court. We retain jurisdiction.
REVERSED in part, REMANDED in part.
FOOTNOTES
Footnote 1:
AS 11.71.030(a)(1); AS 11.56.700(a)(1).
Footnote 2:
553 P.2d 40 (Alaska 1976).
Footnote 3:
Id. at 46.
Footnote 4:
769 P.2d 452 (Alaska App. 1989).
Footnote 5:
Id. at 456.
Footnote 6:
See Miller v. State, 462 P.2d 421 (Alaska 1969); Jurco v.
State, 825 P.2d 909, 911-15 (Alaska App. 1992).
Footnote 7:
AS 11.56.700(a)(1).
