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opinion is published in the Pacific Reporter. Readers
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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
| RUSSELL LEE DUNCAN JR., | ) |
| ) Court of Appeals No. A-9702 | |
| Appellant, | ) Trial Court No. 3AN-05-4345 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2151 March 14, 2008 |
| ) | |
Appeal from the
Superior Court, Third Judicial District,
Anchorage, Larry D. Card, Judge.
Appearances: Krista Maciolek, Assistant
Public Advocate, and Joshua Fink, Public
Advocate, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
Russell Lee Duncan Jr. argues that the superior court
erroneously denied his motion to suppress. Duncan contended that
the police illegally searched him when they contacted him
following a citizens complaint. We conclude that the police had
probable cause to arrest Duncan, and that the search was a lawful
search incident to arrest. Therefore, we uphold Duncans
conviction.
Background facts and proceedings
On May 17, 2005, Adam Glazer, the owner of a business
in downtown Anchorage, called the Anchorage Police to complain
about drug dealing occurring outside his business near the
intersection of 4th and D Street. Glazer told the dispatcher
that a drug deal happened a minute before he called, and also the
night before. Glazer reported that he had a picture of the guy
todayand that the guy was the only one out there. Glazer
described the suspects race, build, and the color and type of his
clothing.
Anchorage Police Sergeant Dennis Allen was in the
downtown area and heard the dispatchers report on his radio.
When he heard the report, he thought its probably Mr. Duncan.
Sergeant Allen had contacted Duncan on numerous occasions in the
past and, on several of those occasions, Duncan was suspected of
drug sales.
Allen responded to the 4th and D Street area and saw
Duncan dressed as Glazer described in his telephone call to the
police. Allen contacted Duncan and checked him for weapons with
a pat-down search. Allen found Chore Boy in Duncans right
pocket, but at an evidentiary hearing, Allen could not explain
how he found the Chore Boy during the pat-down search.
Anchorage Police Officer James Cross also responded to
the dispatchers report. When Cross arrived in the area, Sergeant
Allen turned Duncan over to Officer Cross. At that point, Cross
also pat-searched Duncan.
Officer Cross was familiar with Duncan from prior
contacts. Cross explained that he knew from experience that
people involved with drugs often carried sharp objects like razor
blades or needles. When Cross searched Duncan, he removed
Duncans hat and a piece of crack cocaine fell out of the hat.
Cross found two other pieces of crack cocaine in the sweatband of
the hat. Cross asked Duncan if he had anything else, and Duncan
directed Cross to a crack pipe in his pocket.
The grand jury charged Duncan with one count of fourth-
degree misconduct involving a controlled substance.1
Duncan moved to suppress the cocaine found by the
police. Duncan argued that the pat-down searches conducted by
the officers exceeded the lawful scope of a pat-down search and
that the searches were not incident to arrest.
Superior Court Judge Larry D. Card denied Duncans
motion, ruling that the search was justified as incident to
arrest.
Discussion
Duncan first argues that a pat-down search was not
permissible in the circumstances of his case because the officers
did not possess specific and articulable facts to support a
reasonable belief that Duncan may have been armed. The State
concedes that the discovery of Duncans cocaine cannot be
justified as a pat-down search in an investigatory stop. But
Judge Card did not deny Duncans motion on this basis. Judge Card
ruled that the police had probable cause to arrest Duncan, and
that the search was justifiable as one incident to arrest.
The police may conduct a warrantless search incident
to arrest when (1) the arrest is supported by probable cause; (2)
the search is roughly contemporaneous with the arrest; (3) the
arrest is not a pretext for the search; and (4) the arrest is for
an offense, evidence of which could be concealed on the person.2
Duncan concedes that the second and fourth requirements are
satisfied in his case. However, Duncan argues that the police
did not have probable cause to arrest him before he was searched.
Duncan also maintains that even if the police did have probable
cause, the arrest was a pretext to conduct the search.
Probable cause to arrest exists if the facts and
circumstances known to the officer would support a reasonable
belief that an offense has been or is being committed by the
suspect subject to the search.3 The police can establish
probable cause with reasonably trustworthy information provided
by an informant.4 Informants are normally designated as police
informants or citizen informants.5 When a tip is provided by a
cooperative citizen, or an informant not from the criminal
milieu[,] there is less need for establishing credibility of the
informant.6
An ordinary citizen who reports a crime
stands on a much different footing. He acts
with an intent to aid the police in law
enforcement because of a concern for society
or his own safety. Since the citizen
informer often provides information only
once, there is little opportunity to
establish credibility or reliability in the
most common manner-comparison with accurate
information provided in the past.
We hold that a valid arrest may be made
on information provided by a citizen
informer and that the informers prior
reliability need not be established before
the arrest. The only caveat placed on such a
rule is that some of the details of the
information must be verified before arrest
occurs.[7]
To satisfy the requirement of some corroboration, the
State suggests that the police can consider Duncans reputation
for drug dealing to consider whether there was probable cause to
believe Duncan was committing an offense. There is support for
using reputation evidence in cases from the Alaska Supreme Court.
In Eliason v. State,8 the court specifically noted that in United
States v. Harris,9 three justices of the United States Supreme
Court condoned the use of reputation evidence in search warrant
affidavits.10 Our supreme court returned to this issue in Keller
v. State.11 In Keller, the court noted that a plurality of the
U.S. Supreme Court approved the use of reputation evidence,
quoting an excerpt from Harris:12
We cannot conclude that a policemans
knowledge of a suspects reputation
something that policemen frequently know ...
is not a practical consideration of everyday
life upon which an officer (or a magistrate)
may properly rely in assessing the
reliability of an informants tip. To the
extent that Spinelli prohibits the use of
such probative information, it has no
support in our prior cases, logic, or
experience and we decline to apply it to
preclude a magistrate from relying on a law
enforcement officers knowledge of a suspects
reputation.[13]
In Kristich v. State,14 the supreme court again
returned to Harris and concluded that Harris held that a police
officer's knowledge of a suspects reputation was a practicable
consideration of everyday life upon which a magistrate may
properly rely.15
While Kristich may have given an expansive analysis of
the Harris case, a critical analysis of the issue shows that an
unexplained claim of a suspects criminal reputation should not be
credited when evaluating probable cause.16 As Professor LaFave
concludes in his treatise on search and seizure, a generalized
assertion of criminal reputation, ... is not to be considered at
all on the issue of probable cause.17
But here, the police knew more than Duncans general
criminal reputation. Both Sergeant Allen (Duncan and I go back
quite a few years.) and Officer Cross had ongoing contact with
Duncan in the downtown area. Several of the contacts involved
suspicion that Duncan was selling drugs, and led to earlier
arrests of Duncan. The police knew that the area outside Glazers
business is an area where theres been a lot of drug activity and
an area where we get a lot of calls for people ... doing drugs.
Thus, the police in this case personally knew Duncan and his
criminal history and knew that the area where the informant
reported that Duncan was drug dealing was an area with a
reputation for drug activity.
A Florida case, Chaney v. State,18 addresses similar
issues to those raised in this case. In Chaney, a citizen told a
police officer that he had witnessed what he believed to be
several drug transactions across the street from where he had
been working.19 He told the officer he had seen people exchange
money and items which he believed were drugs.20 The informant
described the man conducting the transactions, what he was
wearing, and that he saw the man take items out of his back
pocket.21 The officer then went to the area, identified the
suspect described by the witness, and when she approached him,
put her hands on the back of his pants.22 The officer then
reached inside the pocket and pulled out a large quantity of
crack cocaine rocks.23
The trial court denied the appellants motion to
suppress the drugs based on the argument that the tip from the
informant did not establish probable cause.24 On appeal, the
court reviewed the totality of the circumstances to determine
whether the tip was sufficient to establish probable cause. The
court held that the officer did not have probable cause to search
the defendant stating that the record failed to provide any
testimony that the location described by the citizen informant
had any prior history of drug transactions or arrests[,] or that
the police officer had any prior knowledge of the appellants
involvement in drug dealing.25
Unlike Chaney, and as shown by the testimony of the
police at the evidentiary hearing, Allen and Cross knew that the
area around Glazers business was an area known for drug activity.
And the police knew that Duncan was an individual who was
regularly in that area and was associated with the sale of drugs.
Judge Card found that the officers knowledge of Duncans drug
history was confirmed by Duncans extensive history of criminal
convictions involving drugs extending back to the 1980s.
In Joubert,26 the Alaska Supreme Court reaffirmed its
analysis that probable cause to arrest does not require a showing
that criminal activity actually occurred, but requires only a
fair probability or substantial chance of criminal activity.27
Applying that standard, we agree with Judge Cards conclusion that
the police had probable cause to believe that Duncan was selling
drugs.
Duncan next argues that the officers actions leading
to Duncans arrest were a pretext to search Duncan. But Judge
Card rejected Duncans argument. He found that the police, acting
on Glazers information about the recent drug sale, had probable
cause to arrest Duncan. The record supports Judge Cards ruling.
The police responded to a citizen complaint about drug dealing,
and there is no evidence supporting a claim that the police used
this complaint as a pretext to search Duncan incident to arrest.
Finally, Duncan claims that the officers were not
entitled to arrest him because the officers did not know whether
Duncan had been selling marijuana or some other drug. Because
delivery of less than one ounce of marijuana is a misdemeanor
under AS 11.71.050, and because the officers did not see the
transactions that Glazer reported to the police, Duncan argues
that AS 12.25.030(a) does not authorize an arrest for a
misdemeanor that was not committed in the officers presence.
There are two answers to Duncans claim. First, Duncan
did not raise this issue in his pleadings in the superior court,
nor did Judge Card rule on the issue. Normally, this court does
not address search and seizure issues raised for the first time
on appeal.28 Next, probable cause is not a standard that
requires certainty, only a fair probability or substantial
chance.29 Under that standard, the information the police had
when they contacted Duncan established a substantial chance that
Duncan had committed a felony by selling a drug other than a
small quantity of marijuana.
Conclusion
The judgment of the superior court is AFFIRMED.
_______________________________
1 AS 11.71.040(a)(3)(A).
2 See State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001)
(citing McCoy v. State, 491 P.2d 127, 138 (Alaska 1971)).
3 Id. at 1118 (citations omitted).
4 See Erickson v. State, 507 P.2d 508, 517 (Alaska 1973).
5 See Effenbeck v. State, 700 P.2d 811, 813 (Alaska App.
1985).
6 Erickson, 507 P.2d at 517.
7 Id. at 518.
8 511 P.2d 1066 (Alaska 1973).
9 403 U.S. 573, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971).
10 511 P.2d at 1071 n.16.
11 543 P.2d 1211(Alaska 1975).
12 Id. at 1218 n.12.
13 Id. (quoting Harris, 403 U.S. at 583, 91 S. Ct. at 2081-
82).
14 550 P.2d 796 (Alaska 1976).
15 Id. at 803 (quoting Harris, 403 U.S. at 583, 91 S. Ct.
at 2082).
16 See 2 Wayne R. LaFave, Search and Seizure: A Treatise
on the Fourth Amendment 3.2(d), at 47-66 (4th ed. 2004)
(discussing the information to be considered in a probable cause
determination).
17 Id. at 62.
18 956 So.2d 535 (Fla. App. 4th Dist. 2007).
19 Id. at 536-37.
20 Id. at 537.
21 Id.
22 Id.
23 Id.
24 Id.
25 Id. at 539.
26 20 P.3d 1115 (Alaska 2001).
27 Id. at 1119 (quoting Van Sandt v. Brown, 944 P.2d 449,
452 (Alaska 1997) (quoting Murdock v. Stout, 54 F.3d 1437, 1441
(9th Cir. 1995))).
28 See Moreau v. State, 588 P.2d 275, 279-80 (Alaska 1980)
(search and seizure claims ordinarily cannot be raised for the
first time on appeal because such errors do not affect the
fundamental fairness of the fact-finding process).
29 Joubert, 20 P.3d at 1119 (quoting Van Sandt, 994 P.2d
at 452).
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