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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.