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McGuire v. State (5/30/2003) ap-1881
McGuire v. State (5/30/2003) ap-1881
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
JOHN GREENWAY McGUIRE, )
) Court of Appeals No. A-
8216
Appellant, ) Trial Court No.
4FA-S01-2220 CR
)
v. ) O P I N I O
N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1881 May 30,
2003] )
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Mary E. Greene,
Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, 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.
During a pat-down search for weapons, a police officer
felt a plastic baggie containing bindles (single-purpose paper
packages used for transportation of narcotics) in the pocket of
John G. McGuires pants. Ultimately, the officer seized the
baggie, opened a bindle, tested its contents for controlled
substances, and discovered cocaine. This evidence led to a grand
jury indictment charging McGuire with one count of third-degree
misconduct involving a controlled substance.1
McGuire moved to suppress the cocaine, arguing that the
search went beyond the permissible scope of a pat-down for
weapons. After an evidentiary hearing, Superior Court Judge Mary
E. Greene issued a decision denying the motion. McGuire entered
a no contest plea to fourth-degree misconduct involving
controlled substances,2 preserving his right to appeal the denial
of his suppression motion.3
We agree with Judge Greenes conclusion that the cocaine
was discovered pursuant to a legal pat-down search and that the
officer was permitted to seize the baggie. Therefore, we affirm
the superior court.
Facts and proceedings
Alaska State Trooper Scott Johnson was among several
police officers responding to a report of a large fight with a
weapon fired or brandished outside a Fairbanks bar. Trooper
Johnson patted down several people for weapons, including
McGuire. While he was patting McGuire down, Trooper Johnson felt
what he believed was a plastic baggie that made the crackling
sound consistent with a plastic baggie in the pocket of McGuires
lightweight cargo pants. He also felt the 90 degree rectangular
... corners of paper bindles. Johnson perceived what he thought
were bindles without squeezing McGuires pocket.
When Trooper Johnson felt the bindles, he was
absolutely certain McGuire had narcotics. Johnson asked McGuire
what he had in his pocket and McGuire responded that it was his
marijuana. Johnson removed the baggie, saw several bindles
inside, and field-tested the contents of the bindles for
narcotics. The bindles contained cocaine and McGuire was
arrested.
After the grand jury returned the indictment, McGuire
moved to suppress the cocaine, arguing he had been subjected to
an illegal search beyond the scope of a limited pat-down search
for weapons. Judge Greene conducted an evidentiary hearing at
which only Trooper Johnson testified.
At the evidentiary hearing, the State argued that
Trooper Johnson was justified in seizing and opening the bindles
he found during a lawful pat-down search because he was
absolutely certain that the bindles contained illicit substances.
The State argued, This is like plain feel doctrine and ... the
drugs were in plain view at that time and he was able to open up
the pocket to take the baggie out. The State cited Newhall v.
State4 for the proposition that officers may seize a container
that they are at least virtually certain contains contraband
under the plain view doctrine.
McGuire did not address the States plain feel argument.
Instead, McGuire cited State v. Joubert5 for the proposition that
Trooper Johnson could only search McGuire for guns. McGuire
conceded the validity of the pat-down search: I wouldnt fault
the officer for making the pat-down search for a weapon under
what I understand to be the circumstances in this case. However,
McGuire argued that Trooper Johnson exceeded the scope of a
permissible weapons pat-down search. McGuire claimed that
Trooper Johnson reached into his pocket on suspicion that the
pocket might contain narcotics.
Judge Greene stated that she recollected an explicit
United States Supreme Court plain feel case called Dickerson or
Dickinson, and that she would review that case as well as Newhall
and Joubert before issuing a written order. Later that day, the
State filed a notice of supplemental authority, citing Minnesota
v. Dickerson,6 as well as two opinions from other states.
In her written order, Judge Greene found that the facts
were undisputed, that Trooper Johnson conducted a legitimate pat-
down for weapons, and that during this pat-down he felt bindles
in a plastic bag that he was certain would contain illegal drugs.
She relied on Minnesota v. Dickerson to find that [p]olice
officers may seize contraband that is clearly non-threatening
detected during a pat-down permitted by Terry v. Ohio [7] ...
without violating the Fourth Amendment. Judge Greene concluded
that the seizure from McGuires pocket of the plastic bag
containing the bindles was lawful. In addition, Judge Greene
ruled that opening the bindles was legal under Newhall, because
the contents of the bindles were identifiable to a virtual
certainty.
McGuire moved to reconsider and requested an additional
evidentiary hearing on the scope of Trooper Johnsons pat-down
search, because the authority presented by the state and relied
on by the court in making its decision was not made known to
defense counsel prior to hearing. Judge Greene denied
reconsideration. McGuire appeals.
Did the trooper lawfully seize and open the
bindles he found in McGuires pocket?
Although Judge Greene did not expressly
discuss the scope of Trooper Johnsons pat-down search
of McGuire, the judge noted that McGuire did not
dispute Johnsons testimony concerning the scope and
intensity of the pat-down.
During his testimony, Johnson was asked
whether the pat-down involved reaching and grabbing
into things. He answered, No, its just an outer search
with your fingertips. He then described how he had
discovered the baggie containing the bindles:
[McGuire] was wearing ... lightweight
cotton pants [with] cargo pockets. ... [A]s
I was patting [the left pocket], I could feel
a plastic baggie inside. It made [a]
crackling sound consistent with a plastic
baggie. And when I was patting it down with
my fingertips, I could feel the 90 degree
rectangular ... corners of paper bindles
inside.
The prosecutor asked Johnson if he had had to
squeeze McGuires pocket to discover these
bindles. Johnson answered no: he was able
to detect the bindle corners with only a
light touch of his fingertips.
McGuire did not cross-examine
Johnson concerning the scope or the intensity
of the pat-down, except to confirm that
Johnson was conducting the pat-down in an
effort to discover weapons, and that Johnson
knew for certain that the baggie and the
bindles did not feel like a weapon.
At the evidentiary hearing in the
superior court, and on again appeal, McGuire
and the State argue about whether Trooper
Johnson could have been certain, based on
sense of touch alone, that McGuires pocket
contained narcotics.
The State asserts that when Johnson
felt a baggie containing slim rectangular
objects, there was only one reasonable
conclusion to be drawn: that these slim
rectangular objects were bindles i.e.,
distinctive paper containers whose sole
purpose is to serve as envelopes for
narcotics. The State argues that once
Johnson was certain that McGuires pocket
contained narcotics, he was entitled to seize
the bindles from the pocket and open them.8
McGuire argues that Johnson could
not have identified the contents of McGuires
pocket with certainty based on touch alone.
He asserts that there are many types of slim
rectangular objects that might be found in a
baggie in a pocket sticks of gum or baseball
cards, for example. McGuire contends that
Johnson could not have become certain that
these objects were bindles until he removed
the baggie from McGuires pocket and looked at
the objects.
We, too, are skeptical that Johnson
could have identified the slim rectangular
objects as bindles (to the exclusion of
anything else) based on touch alone.
However, we conclude that this issue is moot.
We assume, for purposes of
argument, that Johnsons touch of the baggie
and the bindle edges did not give him
probable cause to believe that McGuire was in
possession of narcotics. However, Johnsons
touch gave him at least an articulable
suspicion that this was the case. Armed with
this articulable suspicion, Johnson could
properly ask McGuire what was in his pocket.
When McGuire answered that he was carrying an
illicit drug (marijuana), this established
probable cause for an arrest thus justifying
a search of McGuires pocket incident to
arrest.
McGuire points out that Johnson
testified at the evidentiary hearing that he
did not believe McGuire when McGuire asserted
that the baggie contained marijuana. But
Johnsons testimony reveals that he did not
think that McGuire was jesting about
possessing illicit drugs. Rather, Johnson
disbelieved McGuires assertion only in the
sense that Johnson was fairly sure that
McGuire, when he admitted to possessing
marijuana, was attempting to conceal the fact
that his crime was more serious than
possession of marijuana.
Here, the crucial fact is that
McGuire admitted that he was currently
breaking a drug law in Johnsons presence.
Even though there may have been some
uncertainty as to the degree of McGuires
offense, his statement provided probable
cause for an arrest and a search incident to
arrest thus justifying Johnson in removing
the baggie from McGuires pocket.
Once Johnson removed the baggie
from McGuires pocket and could see for
himself that it contained bindles, Johnson
could lawfully open these bindles and examine
their contents.9
For these reasons, we uphold Judge
Greenes denial of McGuires suppression
motion.
Did Judge Greene abuse
her discretion by denying
McGuires motion to
reconsider?
McGuire argues that Judge Greene
erred because she denied his motion to
reconsider. We uphold the superior courts
order unless we are convinced that the court
abused its discretion.10
In his reconsideration motion,
McGuire requested an additional evidentiary
hearing about the scope of Trooper Johnsons
pat-down search because he was not aware of
Dickerson and the authority presented by the
state and relied on by the court in making
its decision was not made known to defense
counsel prior to hearing. But McGuire
obviously knew that the scope of Trooper
Johnsons pat-down search was the issue in the
case because that was how McGuire himself
framed the issue in the memorandum in support
of his motion: the search was beyond the
scope of a limited pat-down search for
weapons[.] And the State said in the
opposition it filed that it is apparent that
the discovery and seizure of the clear baggie
containing cocaine resulted from a lawful
plain view search. The frisk was lawful,
Trooper Johnson immediately recognized that
the plastic baggie he felt was consistent
with the manner in which illicit drugs are
packaged.
Dickerson had been decided more
than five years before the hearing, and the
States memorandum in opposition informed
McGuire that the State was relying on the
plain-view doctrine as extended to the sense
of touch. Furthermore, at the conclusion of
the hearing, McGuire did not request to
submit any additional briefing or present
additional authority to the court. The case
proceeded to argument on the motion with no
objection or request for additional briefing
from McGuire. Finally, as our discussion
above shows, the record supports Trooper
Johnsons seizure and examination of the
cocaine bindles found on McGuire without
resort to Dickerson. We conclude that Judge
Greene did not abuse her discretion when she
denied reconsideration.
Conclusion
The judgment of the superior court
is AFFIRMED.
_______________________________
1 AS 11.71.030(a) (possession of cocaine with
intent to deliver).
2 AS 11.71.040(a) (possession of cocaine).
3 See Cooksey v. State, 524 P.2d 1251, 1255-57
(Alaska 1974).
4 843 P.2d 1254 (Alaska App. 1992).
5 20 P.3d 1115 (Alaska 2001).
6 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334
(1993).
7 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
8 See Schraff v. State, 544 P.2d 834, 847 (Alaska
1975) (upholding the seizure and ensuing warrantless
search of an aluminum foil slip).
9 See Schraff, 544 P.2d at 847; see also Newhall, 843
P.2d at 1259 ([U]nder the Fourth Amendment to the
United States Constitution[,] a police officer may open
a package under the plain view theory ... if the
contents of the container [are] identifiable to a
virtual certainty. The police are required to have
more than probable cause to inspect the contents of the
package; the officer can search the package only when
the information which the officer has rises to a state
of certitude, rather than mere prediction.) (internal
quotes and citation omitted).
10 Magden v. Alaska USA Federal Credit Union, 36 P.3d
659, 661 (Alaska 2001).
