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Albers v. State (12/28/2001) ap-1779
Albers v. State (12/28/2001) ap-1779
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
ARTHUR ALBERS, )
) Court of Appeals No. A-7446
Appellant, ) Trial Court No. 3AN-98-4383 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1779 December 28, 2001]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Larry D. Card, Judge.
Appearances: Chet Randall, Assistant Public
Advocate, and Brant G. McGee, Public Advocate, Anchorage, for
Appellant. Maarten Vermaat, 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.
MANNHEIMER, Judge.
The question presented in this appeal is whether, during
an investigative stop, the police may order or force the detained
person to unclench their hand. Because the police have only limited
authority to conduct a search during an investigative stop an
authority limited to ensuring officer safety we hold that the
police may order or force the detained person to open their hand
only if the police have an articulable reason to suspect that the
detained person is holding something that could endanger the police.
The superior court did not resolve this issue when it
denied the defendant's motion to suppress. We therefore remand this
case to the superior court with directions to make findings on this
issue.
Underlying facts
A police officer observed two men, Arthur Albers and
Emmanuel Rodriguez, walk into the alley behind a bookstore in
downtown Anchorage. Suspecting that the men were engaged in illegal
drug activity, the officer called for backup and then followed the
two men.
When the officer rounded the corner of the building, he
saw Rodriguez lighting a glass crack pipe. The officer ordered
Albers and Rodriguez to stand and put their hands against the wall.
Albers stood still and raised his hands in the air, but he kept his
left hand clenched. The officer repeatedly ordered Albers to
unclench his hand, but Albers refused.
The officer held the two men at gunpoint until his backup
arrived, and then the police ordered Albers to place his hands
behind his back and open his left fist. When Albers complied, a
small rock of crack cocaine dropped from his hand.
After Albers was indicted for possession of cocaine
(fourth-degree controlled substance misconduct), he asked the
superior court to suppress the cocaine: Albers argued that the
police had conducted an illegal search when they ordered him to open
his hand. The superior court denied the suppression motion. Albers
then went to trial and was convicted. He now renews his suppression
arguments.
Police authority to order a detained person to open their
hand during an investigative stop
The State concedes that the police did not have probable
cause to arrest Albers for drug possession or for any other offense.
For his part, Albers does not dispute that the police had reasonable
suspicion to detain and question him regarding Rodriguez's drug
offense. Thus, to resolve whether the police could lawfully force
Albers to open his hand, we must examine the scope of police
authority to search a detained person during an investigative stop.
When police officers conduct an investigative stop, they
often contemporaneously perform a "pat-down search" of the detained
person i.e., a tactile probing of the detained person's external
clothing for weapons. In the present case, the police performed a
slightly different type of search: they ordered Albers to unclench
his hand and reveal what was there. Courts from around the country
all but unanimously agree that an order of this kind is equivalent
to a pat-down search and that it requires the same justification
as a pat-down of the detainee's clothing. [Fn. 1]
The fact that the police have sufficient justification for
conducting an investigative stop does not invariably mean that they
will have justification for performing a weapons pat-down. Under
the United States Supreme Court's decisions in Sibron v. New York
[Fn. 2] and Terry v. Ohio [Fn. 3], the test is whether the officer
was aware of specific and articulable facts that would support a
reasonable inference that the detainee was armed or possessed some
other article that could pose a danger to the officer.
Thus, in cases where the detainee's actions gave reason
to believe that the detainee was holding or reaching for a weapon,
or where the circumstances otherwise provided reason to suspect that
the detainee might be armed or otherwise pose a danger, appellate
courts have upheld searches of detainees' closed hands. [Fn. 4]
By the same token, however, appellate courts have struck down
searches of detainees' closed hands when the facts did not give rise
to a concern for officer safety. [Fn. 5]
We, too, conclude that the legality of the search of
Albers's hand turns on whether the officers had articulable reasons
to apprehend some danger to their safety. In Coleman v. State [Fn.
6] and Ozenna v. State [Fn. 7], the Alaska Supreme Court cautioned
that police authority to conduct investigative stops should not be
construed so broadly as to allow officers to perform searches for
evidence of possessory offenses on less than probable cause. If we
are to carry out this policy, we must insist that pat-down searches
of a detainee's clothing or, as in the present case, searches of
a detainee's clenched or closed hand be limited to their original
rationale, which is to ensure officer safety. Such a search will
be justified only when there is some articulable reason to believe
that the detainee possessed a weapon or otherwise posed a threat to
the officer's safety. The search is not justified when it is
supported solely by a suspicion that the detainee may be hiding
evidence of a possessory drug offense.
We emphasize that, during an investigative stop, a pat-
down search is justified whenever the circumstances would warrant
a reasonably prudent person in suspecting that the detainee was
armed or otherwise posed a threat to the officer. The officer need
not have probable cause to believe that the detainee is armed. We
recognize that police officers, in performance of their duty, often
place themselves in situations of potential peril. The courts
should not increase that peril by unjustifiably limiting officers'
ability to protect themselves. As the Washington Court of Appeals
said in State v. Serrano, appellate courts should not engage in
"pointless hair-splitting" that requires officers to "wager [their]
physical safety against the odds that a [potential] assailant is
actually unarmed". [Fn. 8]
Thus, a search of a suspect's hand would be justified
where the suspect "makes a sudden move to his pocket notwithstanding
a police order to keep his hands in plain view". [Fn. 9] Likewise,
"it is proper for [an] officer to grab and force upon a suspect's
hand [if] there is reason to believe that the suspect may have a
weapon in his hand." [Fn. 10]
But appellate courts also have a constitutional duty to
protect citizens from overzealous police officers, a duty "to
safeguard the privacy and security of individuals against arbitrary
invasions" by agents of the government. [Fn. 11] Were we to affirm
pat-down searches in the absence of any reason to apprehend danger
to the officer, we would be neglecting this duty.
As the United States Supreme Court said in Terry v. Ohio,
a pat-down search must not be based on an officer's "volatile or
inventive imagination", nor can it be allowed to degenerate into "an
act of harassment". Rather, a pat-down search must be "the tempered
act" of a police officer "who[,] in the course of an investigation[,]
had to make a quick decision as to how to protect himself and others
from possible danger". [Fn. 12]
We remand this case to the superior court, directing the
court to reconsider Albers's suppression motion in light of this
opinion
As we have explained here, the police could not lawfully
order Albers to open his hand (or forcibly seize what was in his
hand) unless Albers's actions and/or the surrounding circumstances
gave the police an articulable reason to think that Albers might be
holding a weapon or other dangerous instrument in his hand. When
the superior court decided Albers's suppression motion, the court
did not expressly address this question. We therefore REMAND
Albers's case to the superior court with directions to re-assess
Albers's suppression motion under the law explained here.
Within 90 days, the superior court should issue
supplemental findings and forward them to us. The parties will then
have 30 days to file memoranda addressing the superior court's
supplemental findings. When we have received the supplemental
findings and the parties's memoranda, we will renew our
consideration of Albers's appeal.
FOOTNOTES
Footnote 1:
See Reyes v. United States, 758 A.2d 35, 38-39 (D.C. App.
2000); State v. Martin, 738 So.2d 98, 103-04 (La. App. 1999); Upshur
v. United States, 716 A.2d 981, 984 (D.C. App. 1998); People v. Cox,
693 N.E.2d 483, 488 (Ill. App. 1998); State v. Williams, 544 N.W.2d
350, 353-54 (Neb. 1996); Mayhue v. State, 659 So.2d 417, 418-19
(Fla. App. 1995); State v. Caudle, 884 S.W.2d 81, 86 (Mo. App.
1994); State v. Bridges, 610 So.2d 827, 829 (La. App. 1992); Payne
v. Commonwealth, 414 S.E.2d 869, 870-71 (Va. App. 1992); State v.
Pressley, 825 P.2d 749, 753-54 (Wash. App. 1992); Shackelford v.
State, 579 So.2d 306, 307 (Fla. App. 1991); State v. Glover, 806
P.2d 760 (Wash. 1991) at 763 (concurring opinion of Justice Guy,
joined by two other members of the court) and at 766 (dissenting
opinion of Justice Utter, joined by one other member of the court);
State v. Halverson, 584 P.2d 408, 410 (Wash. App. 1978).
But see State v. Parker, 645 So.2d 1309, 1310 (La. App. 1994)
(holding that a defendant who was legitimately stopped on suspicion
of drug trafficking had no expectation of privacy in the contents
of his clenched fist).
Footnote 2:
392 U.S. 40, 64; 88 S.Ct. 1889, 1903; 20 L.Ed.2d 917 (1968).
Footnote 3:
392 U.S. 1, 23-24, 26-29; 88 S.Ct. 1868, 1881, 1882-84; 20
L.Ed.2d 889 (1968).
Footnote 4:
See Reyes v. United States, 758 A.2d 35, 38-39 (D.C. App.
2000); State v. Martin, 738 So.2d 98, 103-04 (La. App. 1999); State
v. Williams, 544 N.W.2d 350, 353-54 (Neb. 1996); State v. Caudle,
884 S.W.2d 81, 86 (Mo. App. 1994); State v. Bridges, 610 So.2d 827,
829 (La. App. 1992); State v. Pressley, 825 P.2d 749, 753 (Wash.
App. 1992).
Footnote 5:
See Jackson v. United States, 742 A.2d 883, 884-86 (D.C. App.
1999); Payne v. Commonwealth, 414 S.E.2d 869, 870-71 (Va. App.
1992); Shackelford v. State, 579 So.2d 306, 307 (Fla. App. 1991).
Footnote 6:
553 P.2d 40, 44-47 (Alaska 1976).
Footnote 7:
619 P.2d 477, 479 (Alaska 1980).
Footnote 8:
544 P.2d 101, 106 (Wash. App. 1975).
Footnote 9:
Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment (3rd ed. 1996), sec. 9.5(b), Vol. 4, p. 273.
Footnote 10:
Id., sec. 9.5(b), Vol. 4, p. 273 n.143.
Footnote 11:
Delaware v. Prouse, 440 U.S. 648, 653-54; 99 S.Ct. 1391, 1396;
59 L.Ed.2d 660 (1979).
Footnote 12:
392 U.S. 1, 28; 88 S.Ct. 1868, 1883; 20 L.Ed.2d 889 (1968).
