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Baxter v. State (9/12/2003) ap-1898
Baxter v. State (9/12/2003) ap-1898
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
WILLIAM R. BAXTER, ) Court of Appeals Nos. A-
7982, A-7996,
VINCENT T. HAUGEN, and ) & A-
7998
LARA C. JOHNSON, )
) Trial Court Nos. 4FA-99-3812,
99-3813, Appellants, )
& 99-3814 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1898 September 12, 2003]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Ralph R. Beistline,
Judge.
Appearances: J. John Franich, Jr., Assistant
Public Advocate, Fairbanks, and Brant McGee,
Public Advocate, Anchorage, for Appellant
Baxter. Marcia E. Holland, Assistant Public
Defender, Fairbanks, and Barbara K. Brink,
Public Defender, Anchorage, for Appellant
Haugen. Robert S. Noreen, Fairbanks, for
Appellant Johnson. 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.
MANNHEIMER, Judge.
Based on evidence obtained during a traffic stop and
the ensuing arrest of the driver for not having a valid drivers
license, the police obtained a search warrant for a Fairbanks
residence. There, they uncovered a methamphetamine lab run by
the three defendants in this case. On appeal, the defendants
claim that this evidence was obtained illegally and should be
suppressed. For the reasons explained here, we conclude that the
evidence against the defendants was obtained lawfully, and we
accordingly affirm the defendants convictions.
Underlying facts
On the evening of May 1, 1999, North Pole
Police Officer Gary Jurgens stopped a car for having a
burned-out headlight. The driver, Lara C. Johnson,
told the officer that she did not have a valid drivers
license. Jurgens went back to his patrol car and,
using the computer, confirmed what Johnson had told
him.
Jurgens returned to Johnsons car. He asked
Johnson if she was carrying drugs on her person or in
her vehicle. When Johnson said no, Jurgens asked her
if he could search her and her vehicle. Johnson
replied that she did not care.
Jurgens then asked Johnson to empty her
pockets onto the trunk of her car. Johnson removed
some money and placed it on the trunk. But after
Johnson had finished rummaging through her pockets,
Jurgens noticed that there was a bulge in her front
pocket. He asked her to go ahead and ... take the
other items out. Johnson then removed three folded-up
coffee filters from her pants pocket and two pill
bottles from her jacket pocket.
When Jurgens asked Johnson if he could open
up the coffee filters, she again said that she did not
care. Jurgens unfolded one of the filters and
discovered a white powdery substance inside. Based on
his training and experience, he believed that this
substance was methamphetamine.
Johnson also gave Jurgens permission to open
the pill bottles. One bottle contained some blue pills
that Johnson said were over-the-counter sleeping pills.
The other bottle contained black and tarred-up
silverish ... little balls of a type Jurgens had never
seen. Jurgens could not identify these little balls,
but he suspected that the black substance might be tar
heroin.
After conducting these searches, Jurgens
arrested Johnson but not for possession of drugs.
Rather, he arrested her for driving without a valid
drivers license. (Jurgens did not arrest Johnson for
possession of methamphetamine because, under his police
departments procedures, no arrests were made for drug
possession until the State Crime Laboratory positively
identified the suspicious substance.) After arresting
Johnson for the driving offense, Jurgens transported
her to the North Pole police station.
At the police station, Jurgens conducted a
more thorough search of Johnsons person. During that
search, he opened Johnsons wallet and found a folded
piece of paper inside it. Jurgens removed this paper
and unfolded it; he found that it contained a written
list of items items that he believed were used for
making methamphetamine. Jurgens photocopied the list
so that he could do some follow-up investigation, and
then he returned the piece of paper to Johnsons wallet.
Three days later, Jurgens contacted
Investigator Tim D. Birt of the Statewide Drug
Enforcement Agency regarding his May 1st encounter with
Johnson. Jurgens gave Birt a copy of his police
report, the items he had seized from Johnson, and the
photocopy of the list he had found in Johnsons wallet.
Birt confirmed that the powdery substance was
methamphetamine, and he determined that the black and
silverish balls were iodine crystals. When Birt
examined the photocopied list, he immediately
recognized that it was a complete list of items
necessary for manufacturing methamphetamine, as well as
some of the [necessary] equipment.
Two months later, Investigator Birt applied
for a search warrant to search Johnsons residence for a
methamphetamine lab. The search warrant application
was based, in large part, on the evidence seized during
Jurgens May 1st encounter with Johnson.
When the police executed the search warrant,
they discovered a clandestine methamphetamine lab.
Johnson, her live-in boyfriend, Vincent T. Haugen, and
a guest, William R. Baxter, were all present at the
residence during the search. All three were
subsequently indicted for third-degree controlled
substance misconduct (manufacturing methamphetamine).1
They were also charged with fourth-degree misconduct
under two theories: maintaining a dwelling for the
keeping or distribution of a controlled substance, and
possession of methamphetamine.2 These charges were
eventually consolidated into a single count of
conspiracy to manufacture methamphetamine.3
(In addition, Baxter was arrested at the
scene on an outstanding warrant for failing to register
as a sex offender. During a pat-down search incident
to this arrest, the police discovered a brown vinyl
pouch on Baxters person. Birt obtained a search
warrant to open the pouch; it contained a small amount
of methamphetamine and drug paraphernalia. Baxter was
therefore charged with an additional count of fourth-
degree controlled substance misconduct.)
The searches that were conducted with Lara Johnsons
consent during the traffic stop
On appeal, the defendants contend that the
searches conducted by Officer Jurgens during the
traffic stop searches ostensibly performed with Lara
Johnsons consent were nevertheless illegal because
Johnson did not knowingly and voluntarily consent to
these searches. (The State does not challenge Haugens
and Baxters standing to assert the violation of
Johnsons Fourth Amendment rights.)
The defendants point out that Johnson was
never free to leave during the traffic stop, because
what would have been a minor offense (a burned-out
headlight) quickly became the more serious offense of
driving without a valid license. They argue that, at
this point, Johnson would have suspected that she was
going to be arrested, or at least she would have been
uncertain as to whether Jurgens intended to arrest her
(as opposed to issuing her a citation). The defendants
further argue that Jurgens either consciously or at
least implicitly took advantage of Johnsons uncertainty
and Johnsons attendant psychological pressure to remain
on the officers good side when Jurgens asked Johnson
to agree to the searches of her person and of the
vehicle. The defendants note that Jurgens never told
Johnson that she had the right to refuse the officers
requests.
As we explained in Schaffer v. State4, When
the government relies on the consent exception to the
warrant requirement, two main issues must be litigated:
did the defendant indeed consent, and did the defendant
do so with the requisite voluntariness? As we further
explained in Schaffer, even when a defendant expressly
consents to the requested search, the government must
still establish that the consent was voluntary,
unequivocal, intelligently given, and not the product
of duress or coercion.5 Ultimately, whether a
defendant voluntarily consented to a search is a
question that must be assessed based on the totality of
the circumstances.6
We acknowledge that the circumstances of a
traffic stop can be coercive. But all of the
circumstances noted by the defendants were brought to
the superior courts attention when the defendants
litigated their suppression motions. After hearing
this evidence (and the defendants arguments concerning
it), Superior Court Judge Ralph R. Beistline concluded
that Johnson had voluntarily consented to the searches
at the scene of the traffic stop.
When we review a trial courts ruling on a
motion to suppress evidence, we view the record in the
light most favorable to the trial courts ruling.7 For
the most part, the trial courts findings of fact will
be reversed only if (viewing the evidence in this
light) the findings are clearly erroneous.8 But when
we review the trial courts conclusions regarding the
accuseds state of mind and the issue of voluntariness,
we examine the entire record and make an independent
determination.9
Based on the record in this case, we uphold
Judge Beistlines ruling that Johnson validly consented
to reveal the contents of her pockets to Jurgens.
In a footnote in Haugens brief, he urges us
to consider the recent decision of the New Jersey
Supreme Court in State v. Carty, 790 A.2d 903 (N.J.
2002). Haugen asserts that the Carty decision
represents a judicial acknowledgement that there is
good reason to question the voluntariness of any
consent to search given by a motorist during a traffic
stop.
In Carty, the New Jersey Supreme Court does
indeed question whether motorists feel completely free
to refuse a police officers request to search during a
traffic stop.10 But the New Jersey court did not rule
that a motorists consent to search under such
circumstances fails to qualify as knowing and
voluntary. Rather, the New Jersey court adopted a
prophylactic rule to limit the circumstances in which a
police officer may ask a motorist to consent to a
search. The court ruled that a police officer may not
ask motorists for their consent to a search unless the
officer already has reasonable suspicion that the
motorist is engaged in illegal activity and that the
search will yield evidence of that illegal activity.11
Obviously, the fact that a police officer has
reasonable suspicion of criminal activity has nothing
to do with whether the motorists consent to the
requested search is knowing and voluntary. In
particular, the existence of reasonable suspicion to
support the officers request for a search does nothing
to lessen the inherently coercive aspects of the
situation for the motorist. What the Carty decision
implicitly acknowledges is that (1) the motorists
consent to the search will normally be voluntary and
knowing when analyzed under traditional Fourth
Amendment law, and therefore (2) if there is to be a
restriction on police officers ability to ask motorists
to consent to a search, that restriction must rest on a
different legal rationale.
The rationale adopted in Carty and in various
decisions from other jurisdictions12 is that (1)
traffic stops are lawful only to the extent that they
are confined in scope and duration to the officers
legitimate Fourth Amendment purpose the purpose of
citing the motorist for a violation of the traffic
laws, and therefore (2) an officer is entitled to
enlarge the scope or duration of the stop (by, for
example, seeking permission to engage in an unrelated
search) only if the officer has reasonable suspicion to
support an investigative stop for a different purpose.
The defendants in this case do not raise this
scope and duration constitutional issue, and we express
no opinion on the proper resolution of this question.
Our point is that the New Jersey Supreme Courts
decision in Carty does not support Haugens argument
that traffic stops are inherently so coercive as to
preclude (or presumptively preclude) a finding that the
motorist voluntarily consented to a search. If
anything, Carty supports the opposite conclusion which
is why the New Jersey Supreme Court believed that they
had to adopt a different approach to the problem.
In a related argument, the defendants argue
that even if Johnson initially consented to the search
of her person (by removing the money from her pockets),
she later implicitly withdrew this consent when she
stopped taking things out of her pockets and hesitated
before acceding to Jurgenss request to continue
(thereby revealing the coffee filters and pill
bottles).
But Judge Beistline appears to have taken
Johnsons conduct into account when he found that the
entire search was voluntary. Even though the
defendants made a similar argument at the suppression
hearing, Judge Beistline declared that Johnson did not
at any time indicate a desire to retract her consent.
The judge noted that Johnson never objected to emptying
her pockets and that later, when Jurgens asked whether
he could open the coffee filters and pill bottles that
Johnson had pulled from her pockets, Johnson again
responded, I dont care. Judge Beistline further noted
that Johnson cooperated with Jurgens throughout the
entire search.
Of course, an individual may withdraw or
limit their consent to a search at any time before the
search is completed, by either a verbal or physical act
indicating that the consent has been withdrawn.13 Once
voluntary consent has been given, however, the persons
lack of objection to subsequent closely related entries
and searches implies that the defendants consent was
not withdrawn. Phillips v. State, 625 P.2d 816, 818
(Alaska 1980). See, for instance, United States v.
Brown, 884 F.2d 1309, 1312 (9th Cir. 1989), where the
court ruled that any reluctance [the defendant] showed
in admitting [that] he was carrying the keys to his
luggage was not enough to indicate that he had
withdrawn his [prior] unambiguous statement of consent.
Here, Judge Beistline did not clearly err
when he concluded that Johnson did not withdraw her
consent to the search.
The post-arrest search of Lara Johnsons wallet
As explained above, after Jurgens arrested
Johnson for driving without a valid license, he brought
her to the police station and performed a more thorough
search of her person. During this search, Jurgens
opened Johnsons wallet. Inside the wallet, Jurgens
observed a folded piece of paper. He removed this
paper, unfolded it, and found that it contained a list
of items needed to manufacture methamphetamine.
The State argues that this search was
justified because (1) Johnson was under arrest, (2)
Jurgens had probable cause to believe that Johnson
possessed drugs, and therefore (3) Jurgens could search
Johnsons wallet for concealable evidence of drug
possession. The problem with the States argument is
that, although Johnson was under arrest, she was not
under arrest for possession of drugs.
Under Alaska law (as opposed to federal law),
a search incident to arrest is limited to weapons and
concealable evidence of the crime for which the arrest
was made.14 The State does not argue that Johnsons
wallet might have held concealable evidence of the
crime of driving without a valid license. Rather, the
State argues that the search of Johnsons wallet was
justified because the wallet might have contained
evidence of illegal possession of controlled
substances.
In Layland v. State, 535 P.2d 1043, 1047
(Alaska 1975), our supreme court held that a search
incident to arrest requires a substantially
contemporaneous arrest; the police can not perform a
search incident to arrest merely because they have
probable cause to arrest the suspect and could arrest
the suspect if they chose to.
But the present case involves a somewhat
different issue. It is true that Jurgens consciously
decided not to arrest Johnson for illegal possession of
drugs. However, Johnson was under arrest at the time
of this search under arrest for driving without a
valid license. The question is whether, during a
search incident to arrest, Alaska law restricts the
police to searching for evidence of the particular
crime for which the suspect has been arrested or,
instead, Alaska law allows the police to search the
arrestee for evidence of any crime for which the police
have probable cause here, illegal possession of drugs.
We conclude that this question is answered by
our decisions in Snider v. State, 958 P.2d 1114 (Alaska
App. 1998), and State v. Kendall, 794 P.2d 114 (Alaska
App. 1990). In Snider and Kendall, we held that the
propriety of a search incident to arrest is to be
assessed, not based on the police officers subjective
belief or understanding concerning the rationale for
the arrest, but rather based on whether the facts known
to the officer provided an objective justification for
the arrest.15 In particular, we concluded in Snider
that a contrary rule i.e., a rule limiting these
searches to evidence of the particular crime envisioned
by the arresting officer would lead to unfortunate and
unjustified results:
[A]pplication of [a] rule requiring
officers to state the correct ground before
an arrest is valid would lead to a procedure
where officers would be trained to state
every possible ground for making an arrest,
so that the arrest would be upheld if any one
of the grounds was valid. Furthermore,
requiring the officer to state the correct
ground for arrest would result in the
exclusion of evidence in cases where the
person who was arrested had not had his
rights violated.
In the instant case, the police had
reasonable suspicion to stop [the defendant],
... and ultimately had sufficient information
to arrest him for possession of [illicit
drugs]. [The defendant] personally had no
interest in whether the police who arrested
him were able to correctly articulate the
basis for the arrest. The only possible goal
which we would accomplish by suppressing the
evidence against [the defendant] would be to
require police in future cases to more
carefully articulate their grounds for
arrest. We are unconvinced that such a
ruling would have any positive effect.
Snider, 958 P.2d at 1117-18.
The present case is arguably
distinguishable from Kendall and Snider
because, here, the police officer actually
made a conscious decision not to arrest
Johnson for the drug offense, despite having
probable cause to believe that she had
committed this offense. But the same
reasoning applies to these facts as well.
If we adopted a rule that limited
searches incident to arrest to evidence of
the precise crime for which the arrest was
made, we would simply motivate the police to
charge arrestees with any and all conceivable
crimes. At the same time, we would defeat
the salutary policy that was followed by the
police department in the present case: the
policy of not charging people with felony
drug offenses (with all of the attendant
expense and disruption of the suspects lives)
unless and until the officers suspicions are
confirmed by laboratory analysis.
We therefore conclude that because
Officer Jurgens had validly arrested Johnson
for driving without a valid license, and
because Jurgens had probable cause to believe
that Johnson was guilty of possession of
illicit drugs, he could search Johnsons
person and, in particular, her wallet for
evidence of possession of illicit drugs as
part of the search incident to arrest.
In addition, we also conclude that
the officers search of Johnsons wallet was
authorized because it was done with Johnsons
consent. When Jurgens searched Johnsons
wallet, Johnson had already given the officer
consent to search her person for illegal
drugs. (And we have upheld the voluntariness
of that consent.) Prior Alaska cases have
held that, when the police lawfully search a
suspects person, the police may search
articles of personal property immediately
associated with the person16 such as a
wallet.
We acknowledge that Alaskas prior
cases on the question of associated articles
all deal with searches incident to arrest,
not with consent searches. There is a
difference. In a search incident to arrest,
the scope and intensity of the search are
prescribed by various rules of law; but in a
consent search, the permissible limits of the
search are established by the scope of the
consent that has been given. One might argue
that, even though Johnson consented to a
search of her person, she did not mean to
include personal items such as her wallet.
On the other hand, Johnson had already
voluntarily emptied her pockets (both her
pants pockets and her jacket pockets), and
there is no indication that she objected to
the officers search of her wallet.
We conclude that we need not
resolve this potential dispute (nor ask the
superior court to resolve it). In their
briefs to this Court, the defendants do not
argue that even if Johnson consented to the
search of her person for drugs, this consent
did not include her wallet. Nor do the
defendants raise any other legal argument to
dispute Jurgenss authority to search Johnsons
wallet for drugs. Rather, the defendants
argue that even though Jurgens was entitled
to search the wallet for drugs, the officer
exceeded the permissible scope of that search
when he unfolded the piece of paper and read
it.17
For these reasons, we uphold the
officers search of Johnsons wallet for drugs.
The remaining issue is whether, in the course
of searching the wallet for drugs, the
officer was authorized to remove, unfold, and
read the folded piece of paper.
The unfolding and reading of the piece of paper
Finally, the defendants argue that even if
Jurgens was entitled to search Johnsons wallet, he
had no authority to open and read the folded piece
of paper that he found inside the wallet. The
defendants point out that this paper was not
folded in a manner suggesting that it was a slip
or bindle (i.e., a characteristic single-purpose
container for drugs). The defendants argue that
the incriminating nature of the paper was revealed
only after Jurgens unfolded it and read it and
thus Jurgens was not entitled to do that.
The State responds by arguing cursorily that,
because Jurgens was entitled to search Johnsons wallet
for evidence of drugs, he was entitled to remove and
open the folded piece of paper. The issue is not that
simple.
Jurgens was entitled to search Johnsons
wallet for drugs because she had consented to this
search. Jurgens was also entitled to perform an
arguably more intensive search a search of Johnsons
wallet for evidence of drug possession as part of the
search incident to Johnsons arrest (because the wallet
was an article of personal property immediately
associated with her person).
We acknowledge that Jurgens opening and
inspection of the folded piece of paper within Johnsons
wallet represents a different level of intrusion than
merely opening her wallet and inspecting its contents.
But in McCoy v. State, 491 P.2d 127 (Alaska 1971), the
supreme court held that an officer performing a search
incident to arrest can seize and open closed containers
found on the person of the arrestee.18 Thus, Jurgens
was presumptively entitled to open and inspect the
contents of any closed containers that he found on
Johnsons person or in her wallet. This means that even
if the folded piece of paper is analogized to a closed
container, Jurgens was presumptively entitled to open
and read it.
However, in Alaska, the scope or intensity of
a search incident to arrest is limited by the offense
being investigated.19 The police may search only those
items that might constitute or contain fruits,
instrumentalities, or other evidence of that crime.20
Thus, Jurgenss authority to open and read the
folded piece of paper depends on whether there was
reason to believe that this item either contained
illicit drugs or was some other evidence of Johnsons
crime of drug possession.
The Alaska Supreme Court addressed this same
situation (police inspection of a folded piece of paper
found in a suspects wallet) in Middleton v. State, 577
P.2d 1050 (Alaska 1978). The police had arrested
Middleton for armed robbery. During a search incident
to arrest, the police examined Middletons wallet and
found that it contained a folded piece of paper. The
police opened the piece of paper and discovered that it
was a floor plan of the liquor store where the robbery
was committed.21
On appeal, the defendant argued that even if
the police were authorized to search her wallet as a
search incident to arrest, they could not lawfully open
the folded piece of paper without a warrant.22 The
supreme court rejected this argument, declaring that
the officers were not required to obtain a warrant to
authorize them to open the folded piece of paper
because the opening of the paper was an integral part
of the search for evidence permitted [by] McCoy [v.
State, 491 P.2d 127, 130-31 (Alaska 1971)].23
In other words, the supreme court concluded
that there was reason to believe that the folded piece
of paper either constituted or contained evidence of
Middletons crime. The court noted that evidence of an
armed robbery clearly can ... take[] the form of cash
(including marked money) or indications of
premeditation (for example, floor plan sketches).24
In this context, reason to believe does not
mean probable cause. Rather, it is a lesser standard.
For example, in Lemon v. State25, the supreme court
upheld the seizure and search of a burglary suspects
clothing (incident to his arrest) thus allowing the
government to use specks of insulation from the burgled
building that were found clinging to Lemons clothes.
The court concluded that, even one and a half days
after the burglary, there was a likelihood that the
clothing Lemon was wearing at his arrest ... would
contain evidence of the crime for which he was
arrested.26
Clearly, the supreme court was not using the
word likelihood in the sense of more probable than not.
Rather, the search was valid because there was reason
to suspect that (a) some or all of the clothing that
Lemon wore at the time of his arrest was the same
clothing he had worn during the burglary the day
before, and (b) this clothing might contain trace
evidence connecting Lemon to the crime. Similarly, in
Middleton, the supreme court did not uphold the search
because the outward appearance of the folded piece of
paper in Middletons wallet gave some particular
indication that this paper was evidence of the bank
robbery. Rather, the court concluded that the search
of the paper was lawful because (a) bank robbery is a
crime that is generally premeditated, and thus (b) it
is reasonable to suppose that bank robbers might write
notes on paper relating to their planning or execution
of the offense.
Thus, the issue in the present case is
whether there was any reason to believe that the folded
piece of paper in Johnsons wallet constituted or
contained evidence of her crime of methamphetamine
possession.
The answer would be easy if the officer had
had probable cause to believe that Johnson was
distributing drugs. It is eminently reasonable to
suspect that a drug dealer would make notes relating to
customers and suppliers. But when Jurgens searched
Johnsons wallet, he only had probable cause to believe
that she was guilty of drug possession that is,
possession for personal use. Arguably, it is not so
obvious that when a person is arrested for possession
of drugs for personal use, the papers in their wallet
could be expected to shed light on whether they are
guilty of drug possession.
Nevertheless, when a person is arrested for
drug possession, the papers on their person may contain
notations identifying the source of the drugs a name,
an address, or a telephone or pager number or
identifying the price that was paid for the drugs.
Such information would be evidence relating to the
crime for which the person has been arrested. Because
of this, we conclude that it was reasonable for Jurgens
to examine the folded paper in Johnsons wallet. Our
conclusion is buttressed by the fact that in Middleton,
and more recently in State v. Joubert27, our supreme
court has demonstrated a willingness to countenance a
certain amount of speculation as to the locations where
evidence of a crime might be found during a search
incident to arrest.
For these reasons, we conclude that Jurgens
acted lawfully when he opened and inspected the folded
piece of paper in Johnsons wallet.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 AS 11.71.030(a)(1).
2 AS 11.71.040(a)(5) and AS 11.71.040(a)(3)(A),
respectively.
3 AS 11.71.020(a).
4 988 P.2d 610, 613 (Alaska App. 1999).
5 Id. at 615.
6 Frink v. State, 597 P.2d 154, 169 n.30 (Alaska 1979) (the
voluntariness of a persons consent to a search is a question
of fact, to be determined from the totality of the circum
stances).
7 Stumbaugh v. State, 599 P.2d 166, 172 (Alaska 1979);
Hubert v. State, 638 P.2d 677, 683 (Alaska App. 1981).
8 Chilton v. State, 611 P.2d 53, 55 (Alaska 1980); Tagala v.
State, 812 P.2d 604, 607 (Alaska App. 1997).
9 Beagel v. State, 813 P.2d 699, 704 (Alaska App. 1991).
10 Carty, 790 A.2d at 910-11. See also Justice Stevenss
dissent in Ohio v. Robinette, 519 U.S. 33, 47-48; 117 S.Ct.
417, 425; 136 L.Ed.2d 347 (1996).
11 Carty, 790 A.2d at 912.
12 Federal cases: See United States v. Chavez-VanZuela,
268 F.3d 719 (9th Cir. 2001) (finding that the continued
detention of a motorist after the resolution of a traffic
offense was not justified because the officer did not have a
reasonable and articulable suspicion of other criminal
activity); United States v. Purcell, 236 F.3d 1274, 1280
(11th Cir. 2001) (unrelated questions which unreasonably
prolong the detention are unlawful); United States v. Holt,
229 F.3d 931, 940 (10th Cir. 2000) (holding that an officer
exceeded the reasonable scope of detention for a traffic
stop when the officer asked the motorist about issues
unrelated to the purpose of the stop the motorists failure
to wear a seatbelt); United States v. Holloman, 113 F.3d
192, 196 (11th Cir. 1997) (noting that a traffic stop must
not last longer than necessary to investigate and process
the traffic violation). Compare United States v. Allegree,
175 F.3d 648, 650-51 (8th Cir. 1999) (focusing on the issue
of whether the officers questioning unreasonably extended
the duration of the stop); United States v. Jones, 44 F.3d
860 (10th Cir. 1995) (finding that continued detention of a
motorist was justified because the officer had a reasonable
suspicion that the motorist was transporting illegal drugs);
United States v. Shabazz, 993 F.2d 431, 436 (5th Cir. 1993)
(rejecting the argument that a traffic stop was unreasonably
extended when the officer asked unrelated questions while
waiting for the results of a computer check).
State cases: People v. Cox, 782 N.E.2d 275, 278-79 (Ill.
2002) (holding that a police officers actions during a
traffic stop must be reasonably related in scope to the
circumstances which justified the stop in the first place);
People v. White, 770 N.E.2d 261, 267 (Ill. App. 2002)
(holding that a police officers questioning during a traffic
stop is limited in both duration and scope by the purpose of
the stop); State v. Mitchell, 960 P.2d 200, 203 (Kan. 1998)
(holding that the duration of a traffic stop was
unreasonable when, after the officer obtained enough
information to issue the citation, the officer began to
question the motorist about drug-related offenses); State v.
Taylor, 973 P.2d 246, 253-54 (N.M. App. 1998) (police are
not entitled to go on a fishing expedition while conducting
their investigation of the offense that initially justified
a traffic stop); State v. Dom¡nguez-Mart¡nez, 895 P.2d 306,
309 (Or. 1995) (holding that, under Oregon statutory law, a
police officer who has stopped a vehicle to investigate a
traffic infraction may investigate only that infraction,
unless the state can point to some [other] basis ... to
broaden the scope of the investigation). Compare State v.
Swords, 575 S.E.2d 751, 752-53 (Ga. App. 2002) (holding that
an officer who stopped a motorist on the mistaken belief
that his truck was missing a temporary tag was not permitted
to continue his investigation after determining that the tag
was in fact present); Green v. State, 93 S.W.3d 541, 547
(Tex. App. 2002) (holding that an officer could ask
questions unrelated to the purpose of the traffic stop while
he ran a computer check because this questioning did not
extend the length of the motorists detention); Maysonet v.
State, 91 S.W.3d 365, 373 (Tex. App. 2002) (holding that,
during a traffic stop, an officer is permitted to ask the
driver for their license, proof of registration, and
insurance, and may also inquire as to the motorists
destination and the purpose of the trip); Henderson v.
State, 551 S.E.2d 400, 402 (Ga. App. 2001) (explaining that
an officer may ask unrelated questions while writing out a
citation or warning, but cannot extend the duration of stop
by unrelated questioning either by delaying the writing-out
of the citation or warning, or by questioning the motorist
following the issuance of the citation or warning).
See also Wayne R. Lafave, Search & Seizure (2002 Supp.),
9.2, Vol. 4, p. 17-22 (discussing the issue of whether,
during a traffic stop or an investigative stop, police
officers may pursue questioning or seek consent to a search
which is unrelated to the basis upon which the stop was
lawfully made).
13 See LaFave, 8.1(c), Vol. 3, pp. 631-32.
14 State v. Joubert, 20 P.3d 1115, 1118, 1119 (Alaska
2001); McCoy v. State, 491 P.2d 127, 138 (Alaska 1971).
15 Snider, 958 P.2d at 1117-18; Kendall, 794 P.2d at 117.
16Hinkel v. Anchorage, 618 P.2d 1069, 1071 (Alaska 1980).
17In Johnsons opening brief (pp. 9-10), she argues:
Officer Jurgens specified in his testimony that Ms.
Johnson gave him permission to search her for
narcotics. [But n]othing in that consent gave Officer
Jurgens the right to search Ms. Johnson for anything
other than narcotics. Neither did Ms. Johnson give
Officer Jurgens specific permission to read her
personal papers.
Likewise, in Appellant Haugens opening brief (pp. 21-22), he
notes that [t]he [States] justification for searching
the wallet was for evidence of drug possession, and he
argues that the officer could not have reasonably
believed that the folded piece of paper contained drugs
or was otherwise evidence of drug possession. Haugen
reiterates this position in his reply brief (p. 7):
The question raised by Mr. Haugen ha[s] to do with the
scope and intensity of the search for weapons or
contraband, not that the search itself could take
place.
18 McCoy, 491 P.2d at 135-38.
19 See Lemon v. State, 514 P.2d 1151, 1158 (Alaska 1973).
20 McCoy, 491 P.2d at 137.
21 Middleton, 577 P.2d at 1051.
22 Id. at 1055.
23 Id.
24 Id.
25 514 P.2d 1151 (Alaska 1973).
26 Id. at 1159.
27 20 P.3d 1115, 1119-1120 (Alaska 2001).
