Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
Albers v. State (06/18/2004) ap-1940
Albers v. State (06/18/2004) ap-1940
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. 1940 June 18, 2004]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Chet Randall, Portland, Maine,
for the Appellant. Kenneth M. Rosenstein,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
A police officer saw Arthur Albers and a second man
walk into an alley behind a bookstore in downtown Anchorage.
When the officer followed them into the alley, he saw Alberss
companion crouching down and lighting a crack pipe. At this
point, the officer called for backup and he initiated an
investigative stop of Albers and his companion.
At the officers command, Albers put his hands into the
air, but he kept his left hand clenched. He refused repeated
commands to open his hand. Finally, at the command of the
police, Albers put his hands behind him and opened his left hand;
a small rock of crack cocaine fell out. This discovery led to
Alberss conviction for fourth-degree misconduct involving a
controlled substance.1 The question in this appeal is whether
the police were authorized to make Albers open his hand.
As we explained in our previous decision in this case
Albers v. State, 38 P.3d 540 (Alaska App. 2001) the State
concedes that the police did not have probable cause to arrest
Albers until they discovered the cocaine in his hand.2 Thus, the
officers authority to open Alberss hand must be assessed under
the law governing investigative stops. In our previous decision,
we held that the forcible opening of a suspects hand (or an order
directing the suspect to open their hand) is equivalent to a pat-
down search[,] and [thus] it requires the same justification as a
pat-down of the detainees clothing.3
[T]he 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.
Albers, 38 P.3d at 542. Because the superior
court did not apply this test when it
initially evaluated the officers authority to
search Alberss hand, we directed the superior
court to reconsider the legality of this
search.
Although the testimony previously
presented in the superior court had more or
less clarified the particular facts of the
officers encounter with Albers, Superior
Court Judge Larry D. Card allowed the State
(over Alberss objection) to present
additional testimony concerning the hazards
faced by the police when making felony drug
arrests and investigative stops. After
hearing this testimony, Judge Card again
concluded that the search of Alberss hand had
been justified. We now review that decision.
Alberss argument that Judge Card should not have taken
additional testimony during the proceedings on
remand
Before we reach the merits of Judge Cards
decision upholding the search of Alberss hand, we
must first address a preliminary issue. Albers
argues that Judge Card exceeded his authority, or
at least abused his discretion, when he allowed
the State to present testimony concerning the
hazards faced by the police when they detain
people in connection with the investigation of
felony drug offenses. Albers notes that, in our
prior decision in this case, we did not explicitly
direct Judge Card to take additional testimony.
Although we did not expressly order the
superior court to re-open the evidence, we did direct
the superior court to consider a new aspect of the
case. Albers cites no legal authority that would bar a
trial court from re-opening the evidence during
proceedings on remand if the trial court concludes that
additional testimony is required to fully answer a new
question posed by an appellate court. Indeed, this
Court recently held that, at least in the absence of a
contrary directive from the appellate court, a trial
court has the implicit discretion to re-open the
evidence during proceedings on remand. See Crawford v.
State, 87 P.3d 824, 825 (Alaska App. 2004).
Albers also argues that it was unfair to give
the State an opportunity to supplement the record
regarding the potential justification for the search of
Alberss hand. But, again, we note that we directed the
superior court to consider a new aspect of the case.
There was no manifest unfairness in allowing the
parties to offer supplemental testimony on this new
issue. Both parties Albers as well as the State had
the opportunity to offer supplemental testimony. We
conclude that Judge Card did not abuse his discretion
when he decided to re-open the evidence.
The search of Alberss hand
In our previous decision in this case, we
stated that the legality of the search of Alberss hand
turn[ed] on whether the officers had articulable
reasons to apprehend some danger to their safety.4 Our
prior decisions in this area suggested that, in order
to meet this test, the officers would need some
articulable reason to believe that Alberss hand
contained a weapon. But recently, in State v. Wagar,
79 P.3d 644 (Alaska 2003), our supreme court rejected
this formulation as too narrow. The supreme court
concluded instead that an officer can justifiably
remove and examine an object from a pocket (or hand)
during a frisk for weapons if the officer reasonably
believes that the object could be used as a weapon.
In Wagar, the police approached a vehicle
whose occupants were suspected of possessing and using
cocaine.5 Wagar was one of the occupants of the car.
He put his hands into the pockets of his pants, even
though the officers told him not to do that.6 Then
Wagar turned his body sideways to the officer an
action which, according to the officers testimony,
betokened an attempt to hide something or to gain a
better posture for fighting.7 The officer responded by
conducting a pat-down of Wagars clothing for weapons
(leading to the discovery of a glass vial containing
cocaine).8 The issue on appeal was whether the seizure
of the vial during this pat-down search was justified.
When this Court reviewed Wagars case, we
concluded that the seizure of the vial was not
justified because (1) it did not appear to be a normal
weapon and (2) the officer had no affirmative
indication that Wagar possessed an atypical weapon.9
But the supreme court concluded that this test was too
narrow. The true question, the supreme court declared,
was whether the officer conducting the pat-down
reasonably believed that the object in Wagars pocket
[might] be used as a weapon.10
The overarching rationale [for pat-down
searches] is officer safety. As the [United
States Supreme Court observed in Terry v.
Ohio11]: Certainly it would be unreasonable
to require that police officers take
unnecessary risks in the performance of their
duties. The distinction between objects that
are not shaped like typical weapons but may
nevertheless be weapons and similar objects
that are merely potentially usable as weapons
seems extremely tenuous. If there is a
difference[,] it lies in the intent of the
bearer of the object. But this intent is not
necessarily apparent to the officer
conducting the frisk. In our view, the
distinction inherent in the court of appealss
decision is too vague to serve as a dividing
line between permissible and impermissible
searches that are conducted to ensure officer
safety.
Wagar, 79 P.3d at 648.
According to the testimony
presented by two police officers during the
proceedings on remand in Alberss case, it is
common for drug dealers and drug users to
carry weapons. Moreover, drug dealers and
drug users commonly carry implements that are
small enough to fit in ones hand and that
might be used as weapons: such things as
fingernail files, glass crack pipes, razor
blades, and small pocket knives.
It is true, as Albers points out in
his brief, that the officers conceded that
many people walking the streets of Anchorage
(or anywhere else) have these same types of
objects in their pockets or purses. But the
legality of the officers actions in Alberss
case must be evaluated in the context of an
investigative stop for a felony drug offense.
In Terry v. Ohio,12 the United
States Supreme Court declared that when a
court evaluates whether a pat-down search for
weapons was justified, the court may take
into account the nature of the criminal
activity that the officer reasonably suspects
is occurring. 392 U.S. at 28, 88 S.Ct. at
1883. (In Terry, for instance, the suspected
criminal activity was robbery.)
This Court, too, has acknowledged
that when a court evaluates the legality of a
pat-down search conducted during an
investigative stop, the court can take into
consideration the presumption that people
engaged in felony conduct are more likely to
be armed and/or to resort to violence when
confronted by the police. See Gutierres v.
State, 793 P.2d 1078, 1081 (Alaska App.
1990). Indeed, in Wilburn v. State, 816 P.2d
907 (Alaska App. 1991), this Court suggested
that a pat-down search for weapons might be
justified whenever a police officer conducts
an investigative stop of a person suspected
of committing a felony drug offense in the
officers presence.13
As Albers correctly points out,
many aspects of his encounter with the police
suggested that he was not an immediate
danger, and that his refusal to open his hand
indicated no more than his desire to hide
drugs from the officers. Alberss hands were
in plain sight throughout the encounter.
There was no metal or other material showing
between Alberss fingers, nor was there any
obvious bulge in his fingers or protrusion
from his hand. Albers made no aggressive
gestures and uttered no aggressive words.
Indeed, he was compliant with all of the
officers commands except for his refusal to
open his hand.
Nevertheless, the situation was
potentially a volatile one. The officers had
interrupted Albers and his companion while
Alberss companion was apparently engaged in a
felony drug offense. The police did not know
what was in Alberss hand, and he refused to
open his hand. Although Alberss hand could
have contained drugs, it also might have
contained an object that could be used as a
weapon. And, as our supreme court noted in
Wagar, if Albers was carrying such an object
in his hand, the officers safety would hinge
[on] the intent of the bearer of the
object.14
We note that other courts have
upheld searches of a suspects hand in similar
circumstances.15
For these reasons, we uphold the
superior courts conclusion that the search of
Alberss hand was justified under the facts of
this case.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 AS 11.71.040(a)(3)(A).
2 38 P.3d at 541.
3 Id.
4 Albers, 38 P.3d at 542.
5 79 P.3d at 646.
6 Id.
7 Id.
8 Id. at 646-47.
9 Wagar v. State, Alaska App. Memorandum Opinion No. 4458
(September 26, 2001), pp. 2-3; 2001 WL 1143307 at *1.
10 Wagar, 79 P.3d at 648.
11392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
12392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
13816 P.2d at 911-12.
1479 P.3d at 648.
15See State v. Bridges, 610 So.2d 827, 829 (La. App. 1992)
(upholding the search of a suspected drug dealer who
would not open his clenched hand); Hendren v.
Commonwealth (unpublished), 2000 WL 1052161, *3-*4 (Va.
App. 2000) (upholding the search of a motorists hand
after the motorist initially refused to stop his car at
a traffic checkpoint, then kept his right hand closed
and tried to hide it in his pants pocket); People v.
Shackelford, 546 P.2d 964, 967 (Colo. App.1976)
(upholding the search of a suspects hand during an
investigative stop after the suspect kept his hand
closed and refused to open it). See also Worthey v.
State, 805 S.W.2d 435, 437, 437-39 (Tex. Crim.
App.1991) (upholding the search of a suspects purse
when, during an investigative stop, the suspect
disobeyed the officers order not to move or hide her
hands).
