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303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| JOSEPH E. ERICKSON, | ) |
| ) Court of Appeals No. A-8942 | |
| Appellant, | ) Trial Court No. 4FA-04-536 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2053 - July 7, 2006 |
| ) | |
Appeal from the
Superior Court, Fourth Judicial District,
Fairbanks, Donald D. Hopwood, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K.
Brink, Public Defender, Anchorage, for the
Appellant. Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Joseph E. Erickson was a passenger in a car that was
stopped by Alaska State Trooper Joseph Hazelaar for not having a
front license plate. Trooper Hazelaar asked Erickson for
identification. Erickson stated he had no identification. He
identified himself as Chris Erickson and provided a date of
birth. Trooper Hazelaar checked the Alaska Public Safety
Information Network (APSIN) and found no record matching the
information provided by Erickson. He therefore concluded that
Erickson had committed the offense of providing false
information. He ordered Erickson out of the car and conducted a
pat-down search. The search yielded an identification card that
identified Erickson as Joseph Erickson. Trooper Hazelaar placed
Erickson under arrest for giving him false information. During
the pat-down search, Trooper Hazelaar found illegal drugs on
Erickson. The State charged Erickson with possession of illegal
drugs. Erickson moved to suppress the evidence that
Trooper Hazelaar found during the search. Superior Court Judge
Donald D. Hopwood upheld the search. Erickson was convicted, and
he appeals Judge Hopwoods decision denying his motion to
suppress. We conclude that, under the facts of this case, Trooper
Hazelaar could order Erickson out of the car. But we conclude
that Trooper Hazelaar did not have a sufficient basis to conduct
a pat-down search. We accordingly reverse Judge Hopwoods order
upholding the search and remand for further proceedings.
Factual and procedural background
On February 15, 2004, at 3:51 a.m. while on routine
patrol in Fairbanks, Alaska State Trooper Joseph Hazelaar
conducted a traffic stop for a traffic violation no front
license plate. Trooper Hazelaar observed two men in the car.
Neither was wearing a seat belt. Trooper Hazelaar informed the
driver of the license plate violation and asked both men to
produce identification. The driver produced an Alaska-issued
drivers license that identified him as Erik Schroeder. The
passenger (Erickson) said he had no identification. Trooper
Hazelaar then asked the passenger for his name and date of birth.
The passenger identified himself as Chris Erickson and gave his
date of birth as May 29, 1982. Trooper Hazelaar then contacted
dispatch to run a background check on the individuals. An APSIN
check of Schroeders drivers license revealed that Schroeder was
on parole and probation for robbery in the first degree. The
information provided by Erickson matched no record in the APSIN
database. Trooper Hazelaar concluded that Erickson was probably
falsely reporting his name. Trooper Hazelaar testified that it
was his regular practice, during a traffic stop, to ask all
individuals for identification, whether or not they were wearing
a seatbelt. Trooper Hazelaar further testified that the
majority of the time that a person provides a false name, they
are hiding something such as an outstanding warrant or the fact
that they are on probation.
Trooper Hazelaar concluded that, for his safety, he
should order Erickson out of the car. He explained that he took
this action because it was around 4:00 a.m., he was the only
officer on the scene, and he had learned that Schroeder was on
parole and probation for armed robbery. Trooper Hazelaar
testified that Erickson acted suspiciously as he got out of the
car. Specifically, Trooper Hazelaar said that, when he told
Erickson to get out of the car, Erickson appeared surprised and
apparently looked for various exit points. When he actually got
out of the car, he was very hesitant and appeared not to want to
join Trooper Hazelaar at the rear of the car.
When Erickson left the car, Trooper Hazelaar saw a
black bag or purse lying in the snow next to the passenger-side
door; this bag or purse had not been there before Erickson got
out of the car. When Erickson came to the back of the car,
Trooper Hazelaar patted him down for weapons. Trooper Hazelaar
testified that, as he moved his hand over Ericksons front pants
pocket, he felt an identification card. He testified that, based
on his training and experience, he knew 100 percent that it was
some type of form of identification, as opposed to a credit card,
based on the firmness of its edge. Trooper Hazelaar then removed
the item, which in fact was an identification card. The
identification cards picture matched Ericksons face but the name
on the card was Joseph E. Erickson rather than Chris Erickson.
Trooper Hazelaar then placed Erickson under arrest for making a
false report.
In the trial court there was a factual dispute about
whether the identification card was in Ericksons front pocket or
in his wallet. At the evidentiary hearing, Trooper Hazelaar
testified that he could not remember whether the card had been
removed from Ericksons wallet or his front pocket. He later
stated, after being reminded of his grand jury testimony, that
the card was in Ericksons front pants pocket. Erickson contends
that the audio tape of the contact clearly establishes that the
trooper found the card in Ericksons wallet. Judge Hopwood
resolved this conflict by finding that Trooper Hazelaar found the
card in Ericksons front pants pocket.
After placing Erickson under arrest for making a false
report, Trooper Hazelaar continued his pat-down search. He
found a plastic bag with a green leafy substance inside it and a
glass pipe with a white milky residue on the inside. Trooper
Hazelaar then asked Erickson about the black bag on the snow
beside the passenger door. Erickson replied that it looked like
trash. Trooper Hazelaar retrieved the black bag and searched it.
He found a white powdery substance that ultimately tested
positive as methamphetamine. Trooper Hazelaar also found a hotel
room key card in Ericksons wallet.
Erickson was indicted on two counts of fourth-degree
misconduct involving a controlled substance under AS
11.71.040(a)(3)(A). The first count charged possession of the
methamphetamine found in the black bag next to the car. The
second count related to possession of methamphetamine that the
police later found in the hotel room Erickson shared with
Schroeder. In addition, the State charged Erickson with sixth-
degree misconduct involving a controlled substance for possession
of marijuana and with providing false information.1
Erickson moved to suppress all of the evidence that the
State obtained after Trooper Hazelaar ordered him to get out of
the car. Judge Hopwood conducted an evidentiary hearing and
denied the motion to suppress. Judge Hopwood concluded that
Trooper Hazelaar validly stopped the car for a traffic violation.
He concluded that Trooper Hazelaar had legitimate concerns about
his safety and was justified in ordering Erickson out of the car
and patting him down for weapons. Judge Hopwood considered the
facts that Trooper Hazelaar was the only officer at the scene,
that he made the stop at approximately 4:00 a.m., and that he had
just discovered that the driver, Schroeder, was on probation and
parole for a serious felony. Furthermore, the judge considered
that Erickson claimed not to have identification and that there
was no record in APSIN matching the name Chris Erickson. He
noted that Trooper Hazelaar testified that Erickson appeared to
be under the influence of something and was acting suspiciously.
Judge Hopwood found that, while Trooper Hazelaar was
patting down Erickson for weapons, he discovered what he believed
was an identification card in Ericksons pocket. Trooper Hazelaar
removed the card from Ericksons pocket and identified him.
Trooper Hazelaar then arrested Erickson for making a false report
and handcuffed Erickson.
Judge Hopwood found that Trooper Hazelaar then searched
Erickson incident to the arrest. Trooper Hazelaar discovered
money, the glass pipe with the residue, and the baggie with the
green leafy substance in it. He also discovered the room card
key, which led to the search of the hotel room. Judge Hopwood
denied Ericksons motion to suppress.
Erickson was convicted by a jury of fourth- and sixth-
degree misconduct involving a controlled substance for possessing
the methamphetamine found in the black bag and the marijuana
found on his person. The trial court granted a motion for
judgment of acquittal with respect to the false information and
report charge, and the jury acquitted Erickson on the fourth-
degree misconduct involving a controlled substance count stemming
from the methamphetamine found in the hotel room. Erickson now
appeals from Judge Hopwoods order denying his motion to suppress.
Why we conclude that Trooper Hazelaar could
order Erickson out of the car
In Maryland v. Wilson,2 the United States Supreme Court
held that a police officer can order the driver and the
passengers out of a car that the officer has stopped for a
routine traffic violation, without need of any further
justification. The State urges us to adopt this federal
standard. But we conclude that we do not need to decide this
issue. In our view, Judge Hopwood found case-specific reasons
that justified Trooper Hazelaars action of ordering Erickson out
of the car. First, Judge Hopwood pointed out that the stop
occurred at 4:00 a.m. and that Trooper Hazelaar was the only
officer at the scene. Trooper Hazelaar then found out that the
driver, Schroeder, was on parole and probation for a serious
felony offense. Erickson appeared to be under the influence of
alcohol or drugs. Furthermore, Trooper Hazelaar suspected that
Erickson had given him false identification because there was no
record of Chris Erickson in the APSIN database. We conclude that
Judge Hopwood did not err in concluding that Trooper Hazelaar had
legitimate case-specific reasons for ordering Erickson out of the
car.
Why we conclude that Judge Hopwood erred in
finding that Trooper Hazelaar could conduct a
pat-down search of Erickson
The State argues that Trooper Hazelaar had probable
cause to arrest Erickson for giving false information to a police
officer about his identity while he was under arrest, detention,
or investigation for a crime... .3 In the first place, we
question whether Erickson was under detention or investigation
for a crime. At the time of Ericksons offense, the Alaska
Statutes defined failure to wear a seatbelt as an infraction that
was punishable by a fine of fifteen dollars.4 Furthermore, even
if a violation of the seatbelt law can be classified as a crime,
the State has not presented any evidence which would allow us to
conclude that the fact that Ericksons name did not appear in
APSIN established probable cause for Trooper Hazelaar to arrest
Erickson for giving a false name.
The States assertion, for which it did not provide any
evidence, is that the APSIN database is so comprehensive and
accurate that if a persons name is not listed, a police officer
can conclude that the person has given him a false name and has
probable cause to arrest the person for giving false
identification. It appears that APSIN includes the name of
anyone who has an Alaska drivers license.5 It also appears
that APSIN includes the name of anyone with an arrest, a criminal
conviction, or a traffic ticket originating in Alaska.6 But even
assuming this information is accurate, many people would not be
listed in the database. It seems likely that many Alaska
residents do not have drivers licenses. In particular, a
resident of a bush community might have little reason to have a
drivers license. Furthermore, many people visit Alaska from
other states and countries. It seems likely that they would not
appear in the APSIN database. Furthermore, the States argument
appears to rest on an unrealistic expectation that information in
the APSIN database is accurate and can be easily obtained. Many
people go by nicknames, middle names, or initials. Many women
change their last name when they are married. Accordingly, if
the name is not entered in the database the same way it is given
to the officer, the officer might not locate the name even if it
was in the database. And it certainly seems possible that a
trooper or a dispatcher could make a mistake in spelling a name
or in hearing or writing down a date of birth.
The foregoing examples are some of the reasons why we
cannot accept the States assertion that Trooper Hazelaars
inability to find Ericksons name in the APSIN database gave the
trooper probable cause to arrest Erickson for falsely identifying
himself. (We also note that Judge Hopwood granted Ericksons
motion for judgment of acquittal on the charge that he falsely
identified himself.) We conclude, on the record before us,
that, although Trooper Hazelaar might have had reasonable
suspicion that Erickson gave him a false identity, he did not
have probable cause to arrest Erickson on that ground.
Therefore, we reject the States assertion that the trooper was
authorized to search Erickson incident to that arrest.
The State next contends that Trooper Hazelaar had
reasonable grounds to conduct a pat-down search of Erickson for
weapons. Trooper Hazelaar initially stopped the car in which
Erickson was a passenger for not having a front license plate a
relatively minor traffic violation for which Erickson apparently
had no responsibility. The trooper had probable cause to cite
Erickson for failure to wear a seatbelt. But this offense was
also a minor infraction, punishable by a fifteen-dollar fine.
The standard for conducting a pat-down search for
weapons in these circumstances is set out in Free v. State.7 In
that case, the Alaska Supreme Court concluded that, when a police
officer has legitimately stopped a person, he may conduct a
limited search for weapons if he reasonably believes that the
person may be armed and dangerous:
The fourth amendment allows a police officer
who has a reasonable belief that the
individual with whom he is dealing may be
armed and dangerous to conduct a limited
search for weapons for his own protection.
The officer need not be absolutely certain
that the individual is armed, nor have
probable cause to arrest him for a crime
only that his safety or that of others may be
in danger. The officers reasonable belief
may be based on his own personal observations
or information from a reliable third
party.[8]
Although we conclude that the information that Trooper Hazelaar
had was sufficient to allow him to order Erickson to get out of
the car, we do not believe that the record shows that the trooper
had sufficient reason to conduct a pat-down search for weapons.
It is true that the stop occurred at 3:51 a.m., that Trooper
Hazelaar was by himself, and that the trooper learned the driver,
Schroeder, was on probation or parole for a serious felony
offense. Furthermore, Erickson appeared to be under the
influence of some drug, had no identification, and the trooper
could not identify him in the APSIN database. The trooper also
testified that Erickson acted suspiciously when the trooper told
him to get out of the car.
However, in our view, these facts do not support a
reasonable belief that Erickson was armed and dangerous.
Professor LaFave, in his treatise on search and seizure, lists
circumstances that would justify a pat-down search where the
officer has stopped a person for a legitimate non-criminal
reason:
a characteristic bulge in the suspects
clothing; observation of an object in the
pocket which might be a weapon; an otherwise
inexplicable sudden movement toward a pocket
or other place where a weapon could be
concealed; an otherwise inexplicable failure
to remove a hand from a pocket; awkward
movements manifesting an apparent effort to
conceal something under his jacket; backing
away by the suspect under circumstances
suggesting he was moving back to give himself
time and space to draw a weapon; awareness
that the suspect had previously been engaged
in serious criminal conduct; awareness that
the suspect had previously been armed;
awareness of recent erratic and aggressive
conduct by the suspect; discovery of a weapon
in the suspects possession; discovery that
the suspect is wearing a bullet[-]proof vest
as to which he makes evasive denials; and
awareness of circumstances which might prompt
the suspect to take defensive action because
of a misunderstanding of the officers
authority or purpose.[9]
The Alaska cases that we have examined are consistent
with the federal standard set out in LaFave. For instance, in
State v. Wagar,10 the Alaska Supreme Court reviewed a case where
a trooper approached a couple in a parked car. The trooper had
been informed by a witness that the occupants in the car appeared
to be using cocaine and drinking.11 When the trooper approached
the car, the man, Wagar, got out of the car. The trooper told
Wagar not to put his hands in his pockets. Wagar put his hands
in his pockets in spite of the troopers admonition. The trooper
also stated that Wagar turned away from him in a type of fighting
posture. The trooper stated that, because of these actions by
Wagar, he concluded that he was potentially ... at risk. The
trooper frisked Wagar for weapons. He ultimately found
cocaine.12
In upholding the troopers right to conduct the pat-down
search, the Alaska Supreme Court, relying on Terry v. Ohio,13
stated:
Not every legitimate stop can be accompanied
by a frisk. What is needed is a reasonable
belief at the time of the initiation of the
frisk that the suspect may be armed and
dangerous.[14]
The Alaska Supreme Court held that the specific factors that the
trooper set out justified his performing a pat-down search of
Wagar.
In Brown v. State,15 a police officer caught Brown
walking down the hall of a hotel carrying a portable television
set which the officer suspected might have been stolen. After
the officer asked Brown several questions, Brown gave evasive
answers. The officer conducted a pat-down search of Brown. We
upheld the pat-down search on the ground that the officer
reasonably suspected that Brown had recently committed a burglary
in the hotel from which he was taking the television set. We
concluded that, because the officer had a reasonable suspicion
that Brown was involved in a burglary, which was a felony under
Alaska law, it was reasonable for him to fear that someone
suspected of burglary would carry a weapon and resort to
violence.16
By contrast, in Adams v. State,17 a police officer
contacted two men (Adams and Linn) at night. We summarized the
situation 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.18 The officer stated that Adams appeared to
be very nervous when he questioned him. The officer also stated
that Adams was constantly taking his hands in and out of his
pockets. But the officer conceded that it was cold outside and
that he had never asked Adams to keep his hands out of his
pockets. We concluded that the officer had not given a
convincing reason why he thought Adams might be armed and
dangerous and held that the officer had no basis to conduct a pat-
down search.19
Admittedly, Adams is distinguishable from the present
case. In Adams, the officer was merely investigating possible
criminal activity, and one of the questions before us was whether
the officer had a sufficient basis to conduct an investigative
stop. Here, the officer was justified in stopping Schroeder and
had probable cause to cite Schroeder and Erickson for traffic
infractions. However, the standard remains that in order to
conduct a pat-down search, the record must establish a reasonable
basis for the officer to conclude that the suspect might be armed
and dangerous.20 In this case, the record does not support such
a conclusion.
There was simply nothing about the circumstances
surrounding the offenses that Trooper Hazelaar was investigating
that would indicate that Erickson might be armed and dangerous.
We are concerned that, if we authorized a pat-down search under
these circumstances, the police would be authorized to conduct a
pat-down search of a passenger who had committed a seatbelt
violation where the passengers name did not appear in the APSIN
database. We believe that more is required and that the facts in
this case that it was late, the officer was alone, and Erickson
acted surprised, hesitant, looked for exit points, appeared to be
under the influence of some drug, had no identification, and was
accompanied by a person on probation or parole do not supply
sufficient reasons to justify the pat-down search.
Our concern is that unless strictly regulated by
courts, pat-down searches may be used as a pretext to conduct a
search for evidence.21
We accordingly conclude that Judge Hopwood erred in
finding that Trooper Hazelaar was justified in conducting a pat-
down search of Erickson. The trial court has not determined what
evidence must be suppressed as a fruit of the illegal pat-down
search or whether Trooper Hazelaar would inevitably have
discovered the evidence that led to Ericksons convictions by
observing the black bag or purse lying in the snow next to the
car before he patted Erickson down. Because these issues remain,
we remand to the trial court for further proceedings.
REVERSED and REMANDED.
_______________________________
1 AS 11.71.060(a)(1); AS 11.56.800(a)(1)(B)(i).
2 519 U.S. 408, 415, 117 S. Ct. 882, 137 L. Ed. 2d 41
(1997).
3 Former AS 11.56.800(a)(1)(B)(i).
4 AS 28.05.095(a)(2) and AS 28.05.099(a).
5 See http://www.dps.state.ak.us/apsin/whatapsin.asp;
http://www.dps.state.ak.us/apsin/histapsin.asp.
6 Id.
7 614 P.2d 1374, 1378 (Alaska 1980).
8 Id. (internal citations omitted).
9 4 W. LaFave, Search and Seizure 9.6(a) at 627-30 (4th ed.
2004) (citations omitted).
10 79 P.3d 644 (Alaska 2003).
11 Id. at 646.
12 Id.
13 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
14 Wagar, 79 P.3d at 647 n.4 (citation omitted).
15 684 P.2d 874 (Alaska App. 1984).
16 Id. at 879.
17 103 P.3d 908 (Alaska App. 2004).
18 Id. at 911.
19 Id.
20 Id.
21 State v. G.B., 769 P.2d 452, 456 (Alaska App. 1989).
See also Adams, 103 P.3d at 911; Eldridge v. State, 848 P.2d 834,
838 (Alaska App. 1993).
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