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Way v. State (11/12/2004) ap-1956
Way v. State (11/12/2004) ap-1956
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
J. LEE WAY, )
) Court of Appeals No.
A-8549
Appellant, )
Trial Court No. 4FA-02-2253 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1956 November 12, 2004]
)
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 the
Appellant. W. H. Hawley Jr., 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.
In the early morning hours of May 13, 2002, the Alaska
State Troopers and the North Pole Police raided a residential
apartment because they had received a tip that a wanted fugitive,
Richard Noriega, was attending a social gathering there. Some
half-dozen officers set up a perimeter surveillance around the
apartment (apparently waiting for Noriega to emerge, or perhaps
waiting to obtain a search warrant), but they entered the
apartment without a warrant after one of the occupants looked out
and saw the officers.
The officers ordered everyone out of the apartment, and
then the officers ordered all of the men to lie face down on the
ground and submit to handcuffing. With all of the male occupants
prostrate and handcuffed, the officers entered the apartment with
a police dog and began a search for Noriega. It turned out that
he was not there.
When it became clear that Noriega was not present, the
officers left the apartment and began to release all of the
people handcuffed on the ground. But before each man was
uncuffed, the officers brought [them] to their feet and searched
[them]. Each man was frisked for weapons, and the officers also
demanded that each man identify himself (so that the officers
could check to see whether any of them had outstanding warrants).
One of the men on the ground was J. Lee Way. Trooper
Patrick S. Johnson was already acquainted with Way from a traffic
stop the week before. During that traffic stop, the troopers
discovered components for a methamphetamine lab in the back of
Ways van. The troopers also found a loaded handgun inside the
van. Way was not arrested at that time, but his vehicle was
impounded, and he was informed that he would be facing felony
charges.
Based on that earlier traffic stop, Johnson concluded
that Way might be armed and might be under the influence of
drugs. For this reason, Johnson pulled Way aside (with his hands
still cuffed behind his back) and subjected him to special
questioning. During this questioning, Ways jacket pocket gaped
open and Johnson observed a syringe inside. Johnson removed the
syringe from Ways pocket and examined it; the syringe appeared to
have blood on its barrel (thus suggesting that the syringe had
been used recently). A further pat-down search of Ways clothing
yielded a glass pipe; this pipe field-tested positive for
cocaine. Based on these discoveries, Way was arrested and
ultimately charged with fourth-degree controlled substance
misconduct.
In this appeal, Way contends that the evidence against
him was obtained illegally. Way does not dispute the officers
authority to enter the apartment or to order him to leave the
apartment. (And we express no opinion on these issues.)
However, Way argues that the officers had no authority to detain
him at the scene, handcuff him, and subject him to questioning
the actions that led to the discovery of the drug paraphernalia.
The superior court ruled that the officers actions had
been proper because (1) the officers were entitled to temporarily
restrain all of the occupants of the apartment while the officers
searched the apartment for the fugitive, Noriega, and then, (2)
based on the officers particularized knowledge of Way and his
potential dangerousness, the officers were entitled to frisk Way
before they released him. Thus, the superior court apparently
ruled that the pat-down of Ways pockets would have been legal
even if Trooper Johnson had not first observed the syringe in
plain view.
Summary of our decision
Way does not contest the officers authority
to enter the apartment without a warrant, or the
officers authority to order all of the occupants to
leave the apartment while they conducted their search
for Noriega. We therefore assume, for purposes of this
appeal only, that the officers had this authority.1
Based on this assumption, and based on the
United States Supreme Courts decision in Michigan v.
Summers (which we discuss below), we agree with the
superior court that the officers were authorized to
restrain the occupants in some fashion during their
search of the apartment.
The next question is whether the officers
were authorized to continue to detain Way, and to
question him, even after it was clear that the fugitive
Noriega was not in the apartment. The officers sole
reason for entering the apartment was to search for
Noriega. The officers had no information that any
illegal activity was occurring in the apartment. That
is, the officers had no articulable basis for believing
that Way had committed a serious crime (other than the
drug offense that was discovered during the traffic
stop the previous week), and thus Ways continued
detention can not be justified on this basis.
Potentially, Ways continued detention could
have been justified if the officers reasonably believed
that Way had just helped Noriega escape from the
apartment. But the officers had the apartment under
surveillance and surrounded for some time before they
decided to enter. Thus, the officers failure to find
Noriega in the apartment meant that he had not been
there for a while. Under these circumstances, the fact
that Way was present at the apartment when the officers
arrived did not provide a reasonable basis for the
officers to infer that Way had aided Noriega, the
fugitive they sought.
In sum, the officers in the present case had
no articulable basis for continuing to restrain Way
after the officers completed their search and
discovered that Noriega was not in the apartment.
Nevertheless, the State argues that even if
the officers impermissibly held Way after the search
for Noriega was completed, the officers were authorized
to frisk Way for weapons before they released him and
that this frisk would have revealed the syringe and the
glass pipe. As we explain here, we conclude that the
State is correct. Ways earlier encounter with the
police yielded evidence that Way was involved in drug
trafficking, and a firearm was found in his vehicle.
These circumstances warranted the officers at the
apartment in suspecting that Way might be armed and
presently dangerous to them.
For this reason, we agree with the superior
court that the officers were authorized to perform a
protective frisk of Ways outer clothing and thus, we
conclude that the superior court correctly denied Ways
suppression motion.
The rule announced in Michigan v. Summers, and the
cases applying this rule to the service of arrest
warrants
In Michigan v. Summers, 452 U.S. 692, 101
S.Ct. 2587, 69 L.Ed.2d 340 (1981), the United States
Supreme Court ruled that when police officers serve a
search warrant at a residence, the officers have a
limited authority to detain the occupants of the
premises while the officers conduct the judicially
authorized search.2 The restraint of the occupants is
justified (1) by the fact that a judicial officer has
already authorized a police entry of the residence
(based on probable cause to believe that the residence
contains evidence of a crime), and (2) by the officers
need to protect themselves from attack while they are
executing the warrant, and to prevent the occupants
from concealing or disposing of the items described in
the search warrant. Summers, 452 U.S. at 702-05; 101
S.Ct. at 2594-95.3
For the most part, the cases interpreting and
applying the Summers rule deal with instances in which
the police are executing search warrants for evidence
of a crime. Courts often reason that, in such
circumstances, the prior judicial decision to issue the
warrant means that there is reason to suspect that any
voluntary occupant of the residence might be involved
in the criminal activity described in the warrant, or
might be a friend or associate of the people involved
in that criminal activity. Thus, the police normally
would be justified in temporarily detaining all
occupants to make sure that they do not interfere with
the search (either by personally attacking or impeding
the officers, or by trying to warn others of the
officers presence), and to make sure that the occupants
do not attempt to conceal or destroy the evidence for
which the police are searching.
These principles are illustrated by the Sixth
Circuits decision in United States v. Fountain, 2 F.3d
656 (6th Cir. 1993).4 In Fountain, the police were
serving a warrant that authorized a search for evidence
of illicit drugs. A visitor to the residence, one
McEaddy, was handcuffed and ordered to lie face down on
the living room floor while the police conducted the
search.5 The court held that McEaddys detention and
restraint were proper under the Summers rule:
Concern for [the] safety of the agents and
the need to prevent disposal of any narcotics
on the premises ... justified the restraint
of the occupants, particularly under the
circumstances of this case, where the search
was part of a narcotics investigation and
weapons had been seized from the home just
one month earlier. The character of the
intrusion on McEaddy and its justification
were reasonable and proportional to law
enforcements legitimate interests in
preventing flight in the event incriminating
evidence is found and in minimizing the risk
of harm to officers. Those concerns plainly
outweighed the intrusion experienced by
McEaddy in being required to be on the living
room floor while the search was completed.
And those concerns are the same regardless of
whether the individuals present in the home
being searched are residents or visitors.
... [W]e believe that a valid search
warrant plus McEaddys apparently voluntary
connection with the home [to be searched]
provided the agents with an easily
identifiable and certain basis for
determining that suspicion of criminal
activity justified [McEaddys] detention,
particularly when the agents did not
immediately know whether McEaddy was a
resident.
Fountain, 2 F.3d at 663 (internal citations omitted).
The court additionally concluded that even after the
officers completed their search of the residence
(during which they found drugs and three firearms6 ),
the officers were justified in briefly continuing their
detention of McEaddy and in questioning McEaddy about
his potential relationship to the drugs and the weapons
found in the house:
With respect to the [continued]
detention, ... [w]e recognize that the agents
lacked probable cause to arrest McEaddy
immediately following the conclusion of the
search, but we conclude, nevertheless, that
his continued detention [for a short]
interrogation was reasonable.
. . .
Once the search of the premises was
completed and resulted in the discovery of
drugs and firearms, the agents had reasonable
suspicion to focus on any occupant who was
present in the home voluntarily or
purposefully. Although McEaddy was already
handcuffed at this point, the use of
handcuffs does not necessarily turn an
encounter into an arrest for which probable
cause is required. ... McEaddy was not
removed from the home, placed in a squad car,
or taken to the police station. ... Rather,
the agents took McEaddy into the adjoining
dining room, where he was briefly questioned.
Although the intrusion was significant, it
was reasonable in light of the significant
law enforcement interests and the physical
surroundings of the encounter.
Fountain, 2 F.3d at 664, 666.
Although the concerns that arise when the police are
serving an arrest warrant in a residence are somewhat
different from the concerns that arise when the police
are searching a residence for evidence of a crime,
courts have applied the Summers rule to cases involving
arrest warrants too.7 For instance, in People v.
Hannah, 59 Cal.Rptr.2d 806 (Cal. App. 1996), the police
entered an apartment to serve an arrest warrant on a
juvenile offender. The officers ordered the occupants
to remain seated while they served the warrant. Based
on the officers contact with one of the occupants, they
concluded that he was under the influence of drugs, and
they arrested him. The California Court of Appeal
concluded that the police acted lawfully when they
temporarily detained the defendant:
[I]t is reasonable for a police officer who
is in a residence attempting to execute an
arrest warrant to determine who is present.
This is true even when he does not reasonably
believe [that] any one of [these occupants]
is the subject of the arrest warrant. If the
police officer has received information
[that] the suspect he is attempting to arrest
is in the residence, it is reasonable to
conclude [that one or more of the] people
inside may know the suspect and have
information concerning where he might be
found. Additionally, a reasonable police
officer could be concerned [that] the
individuals in the residence not only know
the suspect, but are either related to or
friends with him. Therefore, it is
reasonable to conclude [that these]
individuals may attempt to alert the suspect
to the fact the police are there or might
assist him in escaping. Consequently, there
was a legitimate governmental interest in
detaining defendant to determine who he was
and if he had any information concerning the
juvenile they were searching for, while the
other officers searched the apartment. In
addition, the detention was reasonably
necessary to ensure defendant did not warn
the juvenile or assist him in evading arrest.
Hannah, 59 Cal.Rptr.2d at 811-12.
However, the decision in Hannah must be contrasted with
the decision reached by the Illinois Court of Appeals
in People v. Bailey, 733 N.E.2d 891 (Ill. App. 2000).
The Bailey court recognized that the Summers rule
applies to the execution of an arrest warrant, but the
court concluded that the police exceeded their
authority when they not only detained an occupant of
the residence while they conducted their search, but
then also questioned and searched him after their
search of the residence was completed.8
The Illinois court reasoned that the decision in
Summers was an application of Terry v. Ohio9 to a
specific circumstance (the execution of a warrant).
The court then noted that, under Terry, even when the
police are justified in temporarily detaining a person,
the scope of that detention is limited by the officers
justification for the detention:
In Terry v. Ohio, the United States Supreme
Court explained that the reasonableness of
such a detention is determined by
ascertaining (1) whether the officers action
was justified at its inception, and (2)
whether [the officers action] was reasonably
related in scope to the circumstances which
justified the interference in the first
place. ... The Terry standard applies to a
detention occurring within a residence after
police officers have legitimately entered the
residence.
Bailey, 733 N.E.2d at 894 (internal citations omitted).
The Illinois court then concluded that the police
exceeded their authority under Terry and, therefore,
their authority under Summers when they questioned and
searched Bailey:
Were [Officers] Jensen and Ambrosini allowed
to question [Bailey] about his own
criminality, and then search his pocket for
illegal items, when their justification for
detaining him was to prevent interference
with Keeses arrest?
. . .
In the instant case, the justification
given by Jensen and Ambrosini for detaining
[Bailey] was to prevent him from interfering
with Keeses arrest. They operated within the
bounds of that justification when they stood
in front of [Bailey] and prevented him from
leaving the kitchen. The record shows that
no further action was needed to accomplish
[the officers] purpose. Nevertheless, the
officers expanded the scope of [Baileys]
detention by questioning him about his own
criminality and searching him for illegal
items. This conduct was unrelated to Keeses
arrest and did not facilitate their original
goal of merely preventing interference with
execution of the warrant. We thus [uphold
the lower courts] finding that [Baileys]
fourth amendment rights were violated.
Bailey, 733 N.E.2d at 894-95.
Both the decision in Hannah and the decision in Bailey
uphold the authority of the police to restrain the occupants of a
residence, to the extent reasonably necessary, when the police
enter the residence pursuant to a warrant authorizing them to
search for a fugitive. The extent of reasonable restraint is
somewhat different in an arrest warrant context than it would be
in a normal search warrant context because the rationale for the
restraint is different.
When the police are serving a normal search warrant
that is, when a magistrate has determined that there is probable
cause to believe that evidence of a crime will be found inside
the residence the police will often have reason to believe that
the occupants of the residence have some connection to the
illegal activity being investigated. In such circumstances, not
only will the police be authorized to restrain the occupants to
prevent them from interfering with the search, but even when the
search is ended, the police will often have sufficient reasonable
suspicion to briefly continue their detention of the occupants
for investigative purposes under Alaskas version of the Terry
rule the Coleman-Ebona rule.10
But when the police are serving a warrant whose sole
purpose is to allow the officers to enter a residence to make an
arrest, a third persons mere presence at the residence will often
furnish no reasonable ground for believing that this third person
is connected to the fugitives crimes. In such circumstances,
while the officers may have the authority to restrain the
occupants of the residence to a reasonable degree to prevent
their interference with the arrest, the officers will generally
have no basis for continuing their detention of these occupants
after the arrest has been made or, as in the present case, after
the officers have searched the residence and have assured
themselves that the fugitive is not there.
This explains the differing results in Hannah and
Bailey. The court in Hannah upheld the defendants conviction
because the police obtained the incriminating evidence during the
temporary restraint imposed on the defendant while the officers
conducted their search for the juvenile named in the warrant. On
the other hand, the court in Bailey reversed the defendants
convictions because the police obtained the incriminating
evidence only after the officers unlawfully prolonged their
detention and questioning of the defendant.
Application of this law to the facts of Ways case
In the present case, the officers sole reason
for entering the apartment was to search for a
fugitive, Noriega. The officers had no information
that any illegal activity was occurring in the
apartment. Thus, the officers had no articulable basis
for believing that Way was about to commit, or had just
committed, a serious crime (other than the drug offense
which had been uncovered the previous week).
Nevertheless, based on the results of the
traffic stop the week before, the officers had
articulable reasons to believe that Way was a drug
trafficker who at least occasionally went armed. Given
this knowledge, the officers were justified in taking
precautions with Way to ensure their safety while they
conducted the search of the apartment for Noriega.
Moreover, several other people were present in the
apartment when the officers arrived, and the officers
needed to at least watch these people during the
search. We therefore conclude that the officers were
authorized to temporarily restrain Way in handcuffs
while they conducted their search.
But although the officers may have been
authorized to restrain Way while they conducted their
search of the apartment, the officers had no suspicion
of criminal activity to justify their continued
detention of Way (under the Coleman-Ebona rule) after
the search was completed.
Potentially, Ways continued detention might
have been justified if the officers reasonably believed
that Way had just helped Noriega escape from the
apartment an action that would have constituted
hindering prosecution under AS 11.56.770. But the
officers had the apartment under surveillance and
surrounded for some time before they decided to enter.
Thus, the officers failure to find Noriega in the
apartment meant that he had not been there for a while.
Under these circumstances, the fact that Way was
present at the apartment when the officers arrived did
not provide a reasonable basis for the officers to
infer that Way had aided Noriega to avoid apprehension.
It is true that, when the officers
interviewed the owner of the apartment, she confirmed
that Noriega had been there earlier in the day. It is
therefore possible that other people in the apartment
(including Way) had information about Noriegas
movements or whereabouts. But after the officers
completed their search of the apartment, they had no
continuing authority to detain the occupants of the
apartment to question them about these matters.
(Compare the Georgia Court of Appeals
decision in Mercer v. State, 554 S.E.2d 732, 734-35
(Ga. App. 2001). In Mercer, ten to twelve officers
executed a search warrant at a residence where a party
was being held; the warrant was based on probable cause
to believe that a fugitive would be at the party and
that drugs would be found there as well. The officers
handcuffed and searched everyone at the party; no one
was free to leave until the officers had talked to
[them] and determined [that] they had nothing to do
with it.11 The Georgia court held that this wholesale
detention and search of every person at the party was
illegal that the police could handcuff and search
individual party-goers only if the officers reasonably
suspected that that particular person posed a danger to
them while they conducted their search, or that the
person might aid the fugitive, or that the person was
connected to the illegal drug activity.12)
In sum, the officers in the present case had
no articulable basis for continuing to restrain Way,
and to subject him to custodial questioning, after the
officers completed their search and discovered that
Noriega was not in the apartment.
The States alternative argument that, even though the
officers may not have had the authority to continue
their restraint of Way, the officers were nevertheless
authorized to frisk Way before they released him
The State argues in the alternative that even
if the officers improperly restrained and questioned
Way after the officers completed their search for
Noriega, the officers were nevertheless entitled to
frisk Way before they released him and that the
syringe and the glass pipe would have been discovered
in the frisk.
Way does not dispute the States assertion
that the incriminating evidence would have been
discovered during a patdown of Ways outer clothing.
However, Way argues that the officers had no
justification for frisking him.
The State relies on the Supreme Courts
decision in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct.
338, 62 L.Ed.2d 238 (1979). The Ybarra decision
extended the rule of Terry v. Ohio (a case that dealt
with investigative stops based on suspicion of criminal
activity) to situations in which police officers must
come into contact with people while serving a search
warrant. In Ybarra, the Supreme Court held that the
police were entitled to frisk the people they
encountered at the premises being searched if the
police could show that the frisk was a reasonable step
to ensure the officers safety. (The Ybarra decision is
discussed in Wayne R. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment (3rd ed. 1996),
4.9(d), Vol. 2, pp. 635-36.)
But even though the Ybarra decision
acknowledges that the police have the right to conduct
protective frisks when serving a warrant, the facts of
Ybarra illustrate a situation in which this kind of
protective frisk is not authorized.
The defendant in Ybarra was a patron of a
tavern who happened to be present when the police
served a search warrant at the tavern. The warrant was
based on probable cause to believe that the bartender
was dealing heroin.13 When the police entered the
tavern, they frisked every patron. During the officers
frisk of Ybarra, they discovered six packets of heroin.
The Supreme Court held that the frisk of Ybarra had
been illegal:
It is true that the police possessed a
warrant ... to search the tavern in which
Ybarra happened to be at the time the warrant
was executed. But ... [e]ach patron who
walked into the ... [t]avern ... was clothed
with the constitutional protection against an
unreasonable search or ... seizure. ...
Although the search warrant ... gave the
officers authority to search the premises and
to search [the bartender], it gave them no
authority whatever to invade the
constitutional protections possessed
individually by the taverns customers.
. . .
[T]he State argues that the ... patdown
search of Ybarra constituted a reasonable
frisk for weapons under the doctrine of Terry
v. Ohio [citation omitted]. ... We are
unable to [agree]. The initial frisk of
Ybarra was simply not supported by a
reasonable belief that he was armed and
presently dangerous, [the required] predicate
to a patdown of a person for weapons.
Ybarra, 444 U.S. at 91-93, 100 S.Ct. at 342-
43.
The Supreme Court noted that the
police did not recognize [Ybarra] as a person
with a criminal history, nor did the police
have any particular reason to believe that he
might be inclined to assault them. Ybarras
hands were empty, he gave no indication of
possessing a weapon, and he made no gestures
[nor took] other actions indicative of an
intent to commit an assault.14 For these
reasons, the court concluded, the officers
had no reasonable basis to frisk him.
This Court, too, has affirmed the
principle that the police can not frisk a
person based simply on that persons
unfortunate choice of associates.15 Rather,
the predicate to a patdown of a person for
weapons is a reasonable belief that [the
person] [is] armed and presently dangerous.16
Thus, we must decide whether the officers in
this case had sufficient reason to believe
that Way was armed and presently dangerous
that is, whether the circumstances
established a substantial possibility that
[Way] possessed items which could be used for
an attack [on the officers] and that [Way]
would so use [these items].17
Often, in a Terry context, the
suspicion of criminal activity that justifies
the investigative detention will also provide
the reasoned basis for concluding that the
person detained might be armed and presently
dangerous. This is most likely to be true
when the police have articulable suspicion
that the person has just committed, or is
about to commit, a serious felony.18 And
this is sometimes true with regard to people
who are present when the police are executing
a search warrant: if the search warrant is
for evidence of a violent crime (or a crime
that is commonly associated with violent
behavior, such as drug dealing), and if the
police have reason to believe that the people
on the premises are associated with that
crime, then the police will often have the
requisite basis for a protective frisk.19
But when the search warrant is for
evidence of a crime that does not commonly
involve violence, or if the crime does
involve violence but the people on the
premises have no apparent connection to the
crime, then the police will not be authorized
to conduct protective frisks unless the
officers have some additional affirmative
indication that particular individuals are
armed and presently dangerous.20
Ways case falls within this latter
category. The police had no indication that
criminal activity was occurring at the
apartment; rather, they entered because they
believed that a fugitive was present in the
apartment. Before conducting their search,
the officers restrained Way and the other
male occupants and guests, but solely because
these men happened to be there at the time.
There was nothing about the circumstances of
this encounter that gave the officers any
reason to believe that Way might be armed and
presently dangerous. There was no indication
that Way was presently engaged in criminal
activity, and Way did not act aggressively or
engage in furtive movements or give the
officers any other reason to believe that he
might be inclined to assault them.
The State points out that Noriega,
the fugitive whom the officers were seeking,
was apparently known to be armed and
dangerous. But the issue is not Noriegas
dangerousness; rather, the issue is Ways
apparent dangerousness. Compare United
States v. Chaves, 169 F.3d 687, 691-92 (11th
Cir. 1999); Sharrar v. Felsing, 128 F.3d 810,
824-25 (3rd Cir. 1997); and United States v.
Colbert, 76 F.3d 773, 777 (6th Cir. 1996)
all three cases holding that the polices
authority to conduct a protective sweep of a
building (incident to making an arrest at
that building) hinges on facts giving rise to
a suspicion of danger from an attack by a
third party during the arrest, not the
dangerousness of the arrested individual.21
The State alternatively contends
that the officers had an affirmative reason
to believe that Way was armed and presently
dangerous a reason that was not based on the
circumstances of the encounter at the
apartment, but rather was based on the
circumstances of the traffic stop the week
before. As we explained earlier in this
opinion, one of the state troopers involved
in the raid on the apartment had prior
knowledge of Way. One week earlier, this
same trooper had participated in a traffic
stop of Ways vehicle; the vehicle contained
the components for a methamphetamine lab, as
well as a tote bag with a loaded gun inside
it. These facts, the State asserts, provided
sufficient basis for the officers to conclude
that Way might be armed and presently
dangerous thus authorizing the officers to
frisk Way before they released him.
As LaFave recognizes, a frisk may
be justified if the officer knows that the
suspect had previously ... engaged in serious
criminal conduct [or] that the suspect had
previously been armed.22 However, as the New
Jersey Supreme Court stated in State v.
Valentine, 636 A.2d 505, 510-11 (N.J. 1994),
a frisk never will be justified based solely
on the officers knowledge of a suspects
criminal history. There must be some aspect
of the present encounter that makes the
persons prior crimes pertinent to the
officers assessment of whether the person is
currently armed and presently dangerous.23
Court decisions on this issue tend
to draw a line between instances where the
police reasonably suspect a person of using
or buying drugs and instances where the
police reasonably suspect that the person is
dealing drugs on the street. Courts are
generally not willing to accept the premise
that all persons who use drugs are
potentially armed and dangerous; but courts
are more willing to accept the premise that
people who deal drugs in large quantities or
who deal drugs on the street may be armed.24
The facts of Ways case fall
somewhere between these poles. Way had been
found in possession of the components of a
methamphetamine lab. Notwithstanding this
discovery, the police did not arrest him for
a drug offense. The record does not explain
why no arrest occurred. The police may have
had tactical reasons for leaving Way on the
street despite having probable cause to
arrest him; on the other hand, the identity
of the components found in Ways vehicle may
have been ambiguous enough that police were
unsure whether they had probable cause for an
arrest.
The discovery of the handgun in
Ways vehicle also failed to provide clear
evidence of Ways dangerousness. As Trooper
Johnson conceded at the evidentiary hearing,
the weapon was not found on Ways person, but
rather in his vehicle. There was another
person in the vehicle, and Johnson conceded
that the weapon might have belonged to this
other occupant. Moreover, Johnson never
asserted that Way had acted belligerently or
aggressively toward the officers during the
earlier traffic stop.
We consider it to be a close
question whether Johnsons knowledge of the
prior traffic stop gave the officers a
sufficient basis for frisking Way before
releasing him. However, we believe that it
is better policy to resolve this case in
favor of a frisk.
We are aware that police officers
are sometimes advised to proceed under the
assumption that every person they deal with
may be armed. This may be prudent advice,
especially in Alaska, where people are
generally free to carry concealed weapons.
But if the Fourth Amendment is to be
enforced, an officers lack of information as
to whether a person is armed can not,
standing by itself, justify a frisk. Terry
and Ybarra are based on the proposition that
the officer must have affirmative indications
that the person both possesses a weapon (or
an object that could be used as a weapon25 )
and is potentially motivated to use that
weapon against the officer.
On the other hand, law enforcement
officers are often required to place
themselves in harms way in particular, to
put themselves at close quarters with people
who may be motivated to harm them. In
deciding what circumstances justify a
protective frisk, we must not set the bar so
high that officers are needlessly endangered.
We conclude that Ways apparent involvement
with drug trafficking, and the discovery of
the weapon in his vehicle in the earlier
traffic stop, provided a sufficient basis to
authorize the officers to perform a
protective frisk of Ways outer clothing
before releasing him.
Conclusion
For the reasons explained here, the judgement
of the superior court is AFFIRMED.
_______________________________
1 See Moreau v. State, 588 P.2d 275, 280 (Alaska 1978)
(holding that, absent exceptional circumstances, potential
violations of the Fourth Amendment will not be treated as
plain error).
2 Summers, 452 U.S. at 705, 110 S.Ct. at 2595.
3 See also State v. Young, 39 P.3d 651, 658-59 (Idaho App.
2002); Mercer v. State, 554 S.E.2d 732, 734 (Ga. App. 2001);
People v. Glaser, 902 P.2d 729, 735-36 (Cal. 1995); People
v. Matelski, 98 Cal.Rptr.2d 543, 549-551 (Cal. App. 2000).
4 Overruled on other grounds in Trepel v. Roadway Express,
Inc., 194 F.3d 708, 717 (6th Cir. 1999).
5 Fountain, 2 F.3d at 663.
6 See id. at 666.
7 See United States v. Vaughan, 718 F.2d 332, 334-35 (9th
Cir. 1983); State v. Spraggin, 239 N.W.2d 297, 304-05
(Wis. 1976).
8 Bailey, 733 N.E.2d at 894-95.
9 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
10 The Alaska rule governing investigative stops was
articulated in Coleman v. State, 553 P.2d 40, 46 (Alaska 1976),
and Ebona v. State, 577 P.2d 698, 700 (Alaska 1978).
11 Mercer, 554 S.E.2d at 734.
12 Id. at 734-35.
13 Ybarra, 444 U.S. at 87-88, 100 S.Ct. at 340-41.
14Ybarra, 444 U.S. at 93, 100 S.Ct. at 343.
15United States v. Bell, 762 F.2d 495, 499 (6th Cir. 1985).
16Eldridge v. State, 848 P.2d 834, 838 (Alaska App. 1993),
quoting United States v. Bell, 762 F.2d at 499.
17Wayne R. LaFave, Search and Seizure: A Treatise on the
Fourth Amendment (3rd ed. 1996), 9.5(a), Vol. 4, p.
253.
18See LaFave, 4.9(d), Vol. 2, pp. 638-39, and 9.5(a),
Vol. 4, p. 254-56.
19See LaFave, 4.9(d), Vol. 2, pp. 639, 640-42.
20LaFave, 9.5(a), Vol. 4, p. 256-57. See United States v.
Ward, 682 F.2d 876, 881 (10th Cir. 1982) (holding that
the police could not frisk the occupant of a residence
that was being searched for evidence of illegal
bookmaking, because there was no reason to believe that
the occupant was armed and presently dangerous); United
States v. Clay, 640 F.2d 157, 162 (8th Cir. 1981)
(holding that there was no basis for the police to
frisk a person who knocked at the door of the apartment
the officers were searching, when the police had no
idea whether he was connected to the crime they were
investigating); United States v. Cole, 628 F.2d 897,
899 (5th Cir. 1980) (holding that the police had no
basis for frisking a person who drove into the carport
of the premises they were searching); State v.
Vandiver, 891 P.2d 350, 357-58 (Kan. 1995) (officers
serving a search warrant for illicit drugs at an
apartment had no basis for frisking visitors to the
apartment); State v. Grant, 361 N.W.2d 243, 247 (N.D.
1985) (no basis for searching the purse of a woman who
entered the premises carrying groceries and accompanied
by two small children while the search was underway);
State v. Myers, 637 P.2d 1360, 1362 (Or. App. 1981)
(the police had no basis to frisk a guest at an
apartment where they executed a search warrant for
marijuana, when the police had no reason to suspect
that this guest was a buyer or co-possessor of the
marijuana). See also Leveto v. Lapina, 258 F.3d 156,
165-66 (3rd Cir. 2001) (suggesting that law enforcement
officers conducting a search for evidence of tax
evasion would normally have little reason to suspect
that [persons on the premises] posed a threat).
21Chaves, 169 F.3d at 692, quoting Colbert, 76 F.3d at 777.
22 9.5(a), Vol. 4, p. 258.
23See, e.g., United States v. Hairston, 439 F.Supp. 515,
518-19 (N.D. Ill. 1977), a case in which the defendant
was stopped for driving a vehicle with a noisy muffler;
the court held that the fact that the defendant was a
convicted felon did not justify a frisk.
24Compare Upshur v. United States, 716 A.2d 981 (D.C. App.
1998), State v. Arthur, 691 A.2d 808 (N.J. 1997), and
Commonwealth v. Zhahir, 751 A.2d 1153 (Pa. 2000)
(rejecting the notion that a frisk is justified
whenever officers have a reasonable suspicion that the
person is using or attempting to purchase illicit
drugs), with United States v. Hishaw, 235 F.3d 565
(10th Cir. 2000), State v. James, 795 So.2d 1146 (La.
2000), and Abraham v. State, 962 P.2d 647 (Okla. Crim.
App. 1998) (upholding frisks based on reasonable
suspicion that the person was selling drugs on the
street).
25See State v. Wagar, 79 P.3d 644 (Alaska 2003).
