Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
Johnson v. State (04/16/2004) ap-1926
Johnson v. State (04/16/2004) ap-1926
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
DONNELL R. JOHNSON, )
) Court of Appeals
No. A-8487
Appellant, )
Trial Court No. 4FA-02-0997 CR
)
v. ) O P I N
I O N
)
STATE OF ALASKA, )
)
Appellee. )
[No. 1926 - April 16, 2004]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Charles R.
Pengilly, Judge.
Appearances: Margi A. Mock, 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 Gregg D. Renkes, Attorney General,
Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Fairbanks Police Officer David Elzey arrested Donnell
R. Johnson for minor on licensed premises for being in a bar
while under 21 years of age.1 He searched Johnson incident to
the arrest. Officer Elzey searched Johnson to make sure that
Johnson did not have anything on him which could be used as a
weapon. During the search, Officer Elzey found a fake
identification card and a plastic bag which contained cocaine.
Johnson moved to suppress the bag containing cocaine, arguing
that Officer Elzeys discovery of the cocaine could not be
justified as a search for weapons. The State argued that the
search was justified as a search for evidence of the crime of
minor on licensed premises. Superior Court Judge Charles R.
Pengilly upheld the search on this theory. Johnson appeals to
this court. We affirm.
Factual and procedural background
During the early morning hours of April 6, 2002, Joseph
Wells, a security guard at the Captain Bartlett Hotel in
Fairbanks, noticed two young men engaged in activities he
regarded as suspicious. The two men entered the hotel together,
and one man, Clarence Nicholson, made numerous calls on his cell
phone while continuously roaming the hallway and periodically
peeking out the front door. The other man, Johnson, went into
the hotel bar, even though he appeared to be underage. Wells
continued to observe the two men for approximately 30 minutes,
and then called the Fairbanks Police Department. Wells reported
his suspicions that Johnson was underage in a bar, and that
Nicholson was involved in some sort of drug activity.
At this point Nicholson went out into the parking lot
and Wells followed to observe. Nicholson got into a vehicle
which had just pulled up and dug around under the dashboard
behavior which Wells found suspicious. Officer Elzey pulled up
just as the vehicle was leaving. Wells told Officer Elzey of his
suspicions. Officer Elzey attempted to follow the vehicle, but
was unable to locate it and shortly returned to the hotel.
Upon entering the hotel, Officer Elzey asked Wells the
whereabouts of Johnson, to which Wells replied, [W]ell, hes in
the bar. Officer Elzey then entered the bar where he saw Johnson
seated with Nicholson, who had apparently managed to get past
Wells after the transaction in the parking lot. Officer Elzey
had the two men step out into the lobby and then asked them their
names and birth dates. Both men responded truthfully and
provided Officer Elzey with identification. Johnson admitted to
being only nineteen years old. At this time Fairbanks Police
Officer Scott Adams arrived at the scene and determined from the
hotel bartender that Johnson had been drinking. Nicholson was old
enough to be in the bar, so Officer Elzey focused his attention
on Johnson. Officer Elzey confirmed by radio that the
identifications that Nicholson and Johnson had provided were
accurate and then placed Johnson under arrest for minor on
licensed premises.
Officer Elzey handcuffed Johnson and performed a pat-
down search. Officer Elzey testified that he performed this
search, not to look for drugs, but rather to find anything that
could be used as a weapon. By Johnsons ankle, either in his shoe
or in his sock, Officer Elzey discovered a Georgia identification
card. He asked Johnson if it was a fake, and Johnson admitted it
was. Officer Elzey then confirmed that the identification was,
in fact, a fake identification card. He continued the pat-down
and found a cell phone and pager in the front pocket of Johnsons
sweatshirt. When Officer Elzey reached Johnsons front left pants
pocket he felt some items and, being unsure what they were,
removed them. The items were a round metallic container of Carmex
lip balm, a four-by-three inch pack of Dentyne Ice gum, and a
plastic bag containing four smaller baggies of cocaine.
The State charged Johnson with minor on licensed
premises and minor consuming alcohol.2 Johnson was also charged
with fourth-degree misconduct involving a controlled substance,
for possession of cocaine.3
Johnson moved to suppress the evidence that Officer
Elzey found while searching him. Johnson conceded the facts that
we have described above, but he argued that minor on licensed
premises is not a crime for which evidence would normally be
found in a persons clothing and thus, Elzeys authority to search
Johnson incident to arrest was limited to a search for weapons.
Johnson then argued that Elzeys seizure of the identity card and
the cocaine exceeded the lawful scope and intensity of a weapons
search (because these objects did not feel like weapons).
The State argued that Elzeys search of Johnsons pockets
was a valid search incident to arrest. Specifically, the State
argued that Elzey was authorized to conduct a search of this
intensity because there were several objects that Johnson could
have picked up and put in his pockets while he was in the bar
objects such as swizzle sticks, in addition to napkins and
matchbooks with the Captain Bartlett logo that would be
corroborating evidence of Johnsons presence on licensed premises.
The State supported its argument with the testimony of Wells, who
stated that there were swizzle sticks, napkins, and matchbooks
with the Captain Bartlett logo on them available at the bar. At the close of
the hearing, Judge Pengilly agreed with Johnson that the seizure of the packet of
cocaine could not be justified as a search for weapons. However, Judge Pengilly
agreed with the State that a reasonable person could suspect that Johnsons pockets
might contain evidence relevant to the crime of minor on licensed premises.
Moreover, Judge Pengilly found that this evidence could be of a size and texture that
would allow a search of the scope and intensity that Elzey performed when he
discovered the identification card in Johnsons shoe and the bag of cocaine in
Johnsons pocket. Thus, Judge Pengilly upheld the search of Johnsons pockets as a
search incident to arrest.
Whether an arrest for minor on licensed
premises is an offense where evidence of the
crime can be concealed on a person
Under federal law, a police officer who has legally
arrested a person may search that person incident to the
arrest.4 Alaska law places more stringent requirements on the
officers ability to search incident to arrest. Under Alaska law,
an officer may conduct a limited search for weapons.5 Beyond
this, the officer may only search for evidence related to crimes
for which the police have probable cause to arrest.6
The only issue in the case before us is whether
Johnsons arrest for minor on licensed premises was an offense
where evidence of that crime could be concealed on Johnsons
person. Judge Pengilly concluded that the answer was yes. We
believe that he was correct. Among other things, Officer Elzey
actually did find evidence of the crime on Johnson Johnson had a
fake identification card that showed that he was over 21 years of
age that he could have used to obtain a drink in the bar. Judge
Pengilly also accepted the States argument that Officer Elzey
could search for evidence such as napkins, matchbooks, or swizzle
sticks from the bar which would have been evidence that Johnson
was in the bar. We conclude that Judge Pengilly was correct in
concluding that Officer Elzeys search of Johnson was justified
under this theory.
It is true that Officer Elzey did not articulate this
as the reason for the search. In his testimony, Officer Elzey
justified the search as a search for weapons. He testified that
he did not want anyone in his police car who might have any
object that could harm him, and therefore he conducted a thorough
search. The State does not contest Judge Pengillys ruling that
Officer Elzeys search was too intrusive to justify as a search
for weapons. But a court is required to determine the propriety
of the scope of a police officers search incident to arrest by
determining whether the facts known to the officer provided an
objective justification for the search.7 This is the standard
Judge Pengilly applied. When we apply this standard, we
conclude, as Judge Pengilly did, that Officer Elzey could search
Johnson for evidence of the crime of minor on licensed premises.
Johnson argues that it was unnecessary for Officer
Elzey to search him because the officer had abundant evidence
that Johnson had been in the bar and that Johnson was underage.
Johnson also contends that he was arrested for a relatively minor
offense.8 He argues that, after considering these factors, there
was no justification for the officers intrusive search. Johnson
relies on language in State v. Joubert,9 where in justifying a
search incident to arrest for evidence, the Alaska Supreme Court
found it was noteworthy that the offense for which Joubert was
arrested, vehicle theft, was not a minor offense.10 The supreme
court stated that Joubert did not maintain the same expectation
of privacy as one arrested for failure to appear for a court
date.11 In giving examples of minor offenses where a search for
evidence of the crime would not be justified, the court used
examples from prior cases that held that failure to appear and
failure to pay a fine were not offenses for which the police
could search for evidence of the crime on the suspect.12 Johnson
uses this language in Joubert to argue that we should apply a
balancing test similar to the balancing test which we set out in
State v. G.B.,13 for investigative stops.14 Johnson suggests
that we should weigh such factors as the seriousness of the
offense and the necessity for the search in determining whether
the search incident to arrest is lawful. We decline to adopt
such a rule.
The rule suggested by Johnson appears to us to create
substantial uncertainty. We believe that the established rule,
which allows the police to search for evidence of a crime which
could be found on the person, creates more predictability. Prior
court decisions have established that there are some offenses,
such as failure to appear or failure to pay a fine, where
evidence of the crime could not be found on the person. We
believe that there are similar offenses where it will be clear
that a search incident to arrest for evidence of a crime is not
reasonable. We believe that the established Alaska rule is the
rule we must follow: the police, incident to arrest, may search
a person for evidence of a crime, for which they have probable
cause, that could be concealed on the person. Applying this
rule, we conclude that Judge Pengilly did not err in denying
Johnsons motion to suppress.
AFFIRMED.
_______________________________
1 AS 04.16.049(a).
2 AS 04.16.050(a).
3 AS 11.71.040(a).
4 United States v. Robinson, 414 U.S. 218, 234-36, 94 S.Ct.
467, 476-77, 38 L.Ed.2d 427 (1973).
5 Baxter v. State, 77 P.3d 19, 26-29 (Alaska App. 2003).
6 Id.
7 State v. Joubert, 20 P.3d 1115, 1120 (Alaska 2001).
8 See AS 04.16.180(a) (stating that under state law being
under age 21 on licensed premises is a class A misdemeanor). But
see Fairbanks General Code Ordinance 14-179(a) & (b) (stating
that being under age 21 on licensed premises is a violation
punishable by fine).
9 20 P.3d 1115.
10 Id. at 1120-21.
11 Id. at 1120.
12 Id. at 1120 n.24.
13 769 P.2d 452 (Alaska App. 1989).
14 Id. at 455-57.
