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Adams v. State (12/17/2004) ap-1964
Adams v. State (12/17/2004) ap-1964
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts.
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN Q. ADAMS, )
) Court of Appeals No.
A-8573
Appellant, )
Trial Court No. 4FA-01-3435 CR
)
v. ) O P I N I O
N
)
STATE OF ALASKA, )
)
Appellee. )
[No. 1964 - December 17, 2004]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Niesje K.
Steinkruger, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K.
Brink, Public Defender, Anchorage, for
Appellant. Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
John Q. Adams appeals his conviction for misconduct
involving a controlled substance in the fourth degree (possession
of cocaine).1 Adams contends that the police seized the evidence
during an illegal pat-down search. He argues that the trial
court erred in denying his motion to suppress. We agree with
Adams and reverse his conviction.
Factual background
While on patrol at around 9 p.m. on October 15, 2001,
Fairbanks Police Officer Jonathan Terland noticed a car parked on
a dead end street near a local grade school. Officer Terland
was aware that the school had, on several prior occasions, been
targeted by vandals, trespassers, and burglars. He therefore
investigated. Officer Terland pulled up facing the car so that
his headlights illuminated it. But he did not activate his
emergency lights or block the car so it could not leave.
Officer Terland contacted a man who was standing
outside the car whom he later identified as Mr. Linn. The
officer asked Linn what he was doing in the area. Linn stated
that he had just picked up some baleen from the airport. He
explained that the baleen smelled bad, so he had stopped to check
on it. Linn pointed out the baleen and the officer confirmed
through the dispatcher that it was legal for Linn to possess it.
Officer Terland then decided to verify Linns story by
contacting the passenger, later identified as John Q. Adams.
Adams was seated in the car on the passengers side. Officer
Terland knocked on the car window, motioning for Adams to roll it
down. But Adams got out of the car.
Officer Terland asked Adams what he was doing in the
area. Adams told the officer that he and Linn had just been at a
birthday party and were just driving around. He also said that a
cover for the spare tire had come off so they had pulled into the
dead end street to secure it. Adams did not mention the baleen.
Officer Terland testified that Adams appeared to be
extremely nervous. He said that Adams was very jittery, placing
his hands in his pockets, removing them, putting them back in his
pockets.
Officer Terland decided to pat down Adams for weapons.
He justified this action because Adams had given a different
explanation for why he and Linn had stopped in the area than Linn
had given, and because Adams was acting very nervous. The
officer conceded that most people, when contacted for a
generalized request for information, were nervous. He estimated
that he would pat search for weapons approximately half of the
people that he would contact in what he described as generalized
contacts.
In searching Adams, Officer Terland felt a hard
cylindrical object that he immediately recognized as a crack
pipe. He then reached into Adamss pocket and removed the crack
pipe. A plastic bag of white powder came out with the pipe and
fell to the ground. Officer Terland arrested Adams for
possession of cocaine.
The State indicted Adams of one count of misconduct
involving a controlled substance in the fourth degree (for
possession of cocaine). Adams moved to suppress the evidence,
arguing that it was found as a result of an illegal pat-down
search. Superior Court Judge Niesje K. Steinkruger denied the
motion to suppress. Judge Steinkruger found that Officer Terland
could properly approach the car and make a general request for
information. She found that Adams voluntarily got out of the
car. She concluded that after Adams gave a different explanation
from Linn about why they were stopped on the dead end street, and
because Adams was acting very nervous, that Officer Terland was
justified in patting Adams down for weapons. She concluded that
when he was doing the pat-down search for weapons, Officer
Terland felt an item that he knew was a crack pipe. And at that
point, Officer Terland could properly seize the crack pipe.
Following this decision, Adams entered a Cooksey2 plea
to misconduct involving a controlled substance in the fourth
degree, reserving his right to appeal.
Analysis
Under the leading case of Coleman v. State,3 a police
officer has the authority to conduct an investigative stop when
he has a reasonable suspicion that imminent public danger exists
or serious harm to persons or property has recently occurred.
The Coleman rule places greater restrictions on a police officers
authority to conduct an investigative stop than does federal law.
Colemans more stringent requirements are based on Justice
Brennans dissenting opinion in Adams v. Williams.4 In that case,
Justice Brennan expressed concern that stops based on something
less than probable cause might simply be used as a pretext to
conduct searches for evidence. Justice Brennan perceived a
danger that the reasonable suspicion requirement, unless
restricted, would [open] the sluicegates for serious and
unintended erosion of the protection of the Fourth Amendment.5
In State v. G.B., we construed Coleman to allow a
police officer to conduct an investigative stop for a relatively
minor property crime.6 We set out a balancing test to weigh the
seriousness of the offense, the necessity for the stop, and the
imminence of the threat to public safety.7 In addition, these
factors must in turn be balanced against the strength of an
officers reasonable suspicion and the actual intrusiveness of the
investigative stop.8 As we stated in Gutierrez v. State, the
right to seize temporarily is not necessarily the right to
search.9
When we apply these standards of Alaska law to the
present case, we conclude that the trial court erred in
determining that Officer Terland could lawfully conduct a pat-
down search of Adams. We agree with Judge Steinkruger that
Officer Terland could approach Linn and Adams to ask them what
they were doing. A police officer can approach a private citizen
and direct questions to that person without turning the encounter
into an investigative stop.10 The encounter becomes an
investigative stop only when the officer restrains the citizen.
A citizen has been restrained by the police only when a
reasonably prudent person who is innocent of any crime would
treat the police officers actions as indicating an intent to
restrain or confine the person, considering all the
circumstances.11
When Officer Terland conducted the pat-down search of
Adams it is undisputed that he initiated an investigative stop.
This is the point at which we conclude that Officer Terlands
actions violated the Coleman standard. At the time that Officer
Terland patted down Adams, he had little information which would
lead a reasonable officer to conclude that imminent public danger
existed or that serious harm to persons or property had recently
occurred. The evidence in support of the conclusion that Linn
and Adams were engaged in criminal activity can be summarized as
follows: Adams and Linn were parked on a dead end street at
night; the dead end street was near a grade school that had been
frequently vandalized; when questioned, Adams and Linn gave
apparently conflicting accounts of why they were stopped in the
area.
Officer Terland did not give a convincing reason why he
thought Adams might be armed and dangerous. The officer stated
that Adams appeared to be very nervous during the questioning.
But Officer Terland conceded that most people he questioned in
similar generalized request[s] for information were nervous. He
stated that, of the people he contacted in this kind of
situation, he would feel the need to search approximately half of
them. Officer Terland also pointed out that Adams was constantly
taking his hands in and out of his pockets. But the officer
conceded that it was cold out and that might be a possible
explanation for Adamss behavior. Officer Terland never asked
Adams to keep his hands out where he could see them a far less
intrusive action than conducting a protective search.
This appears to be the kind of search which the supreme
court wished to preclude in Coleman. The purpose of the Coleman
rule was to protect citizens Fourth Amendment rights by limiting
the application of searches conducted incident to investigatory
stops. The purpose was to prevent potential abuses in cases
involving possessory crimes.12 In the present case, the State
had little to suggest that serious harm to persons or property
had recently occurred, and the officers need to conduct a
protective search was weak.
Conclusion
We conclude that the State did not justify Officer
Terlands pat-down search of Adams. We therefore conclude that
the evidence which Officer Terland found pursuant to that search
was the product of an illegal search and that the trial court
erred in denying Adamss motion to suppress. We accordingly
reverse Adamss conviction.
The conviction is REVERSED.
_______________________________
1 AS 11.71.040(a).
2 Cooksey v. State, 524 P.2d 1251, 1257 (Alaska 1974).
3 553 P.2d 40, 43-47 (Alaska 1976).
4 407 U.S. 143, 153, 92 S.Ct. 1921, 1926, 32 L.Ed.2d 612
(1972); See State v. G.B., 769 P.2d 452, 454 (Alaska App. 1989).
5 G.B., 769 P.2d at 454 (quoting Adams, 407 U.S. at 153, 92
S.Ct. at 1927).
6 769 P.2d at 455-57.
7 Id. at 456.
8 Id.
9 793 P.2d 1078, 1081 (Alaska App. 1990) (citing Howard v.
State, 664 P.2d 603, 609-10 (Alaska App. 1983)).
10 Romo v. Anchorage, 697 P.2d 1065, 1068 (Alaska 1985).
11 Id.
12 G.B., 769 P.2d at 454.
