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are encouraged to bring typographical or other formal
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Courts:
303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
KRISTIAN SKJERVEM,
Appellant, Court of Appeals No. A-
9972
v. Trial Court No. 3AN-04-
10353 Cr
STATE OF ALASKA,
Appellee. O P I N I
End of Caption O N
No. 2237 September 18, 2009
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Philip R. Volland,
Judge.
Appearances: Renee McFarland, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Timothy W. Terrell, 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 Bolger, Judges.
MANNHEIMER, Judge.
BOLGER, Judge, concurring.
Kristian Skjervem appeals his conviction for fourth-
degree controlled | substance misconduct (possession of cocaine | ).1 The issue on appeal is whether the evidence against Skjervem was the fruit of an unlawful search or seizure. For the reasons explained here, we conclude that we can not resolve this issue without further findings of fact. We therefore remand this case to the superior court. |
Overview of the facts underlying
this case
Although the facts pertaining to the
legality of the searches in this case must be described
in some detail, the basic events underlying this case
can be described in a few sentences:
Several Anchorage police officers were
summoned to a residence on West 25th Avenue after a
neighbor reported that a woman was breaking into the
house. When the police arrived, they observed a woman
trying to replace a window screen from inside the
house. They also observed a car in the driveway;
Skjervem was in the drivers seat of this car, and
another man was in the front passenger seat.
The police took everyone into custody at
gunpoint. A few minutes later, however, the owner of
the house appeared on the scene and explained that
there was no burglary. The woman was staying at the
house with his permission, but she had left her key
inside the house and then had locked herself out which
explained why she removed a window screen and entered
the house through the window. As to Skjervem, he was
there by complete coincidence: he was simply dropping
off his passenger.
The issues presented in this appeal all arose
because the police did not release Skjervem after their
suspicions about the burglary were resolved.
A more detailed look at the searches and seizures in
this case
When the police first arrived at the house
and it appeared that a burglary was in progress, the
officers ordered Skjervem and his passenger out of the
car at gunpoint. The officers handcuffed Skjervem,
patted him down for weapons (and found none), and then
put him in one of the patrol cars. After about 15
minutes, Officer Robert Blanton removed Skjervem from
this first patrol car and placed Skjervem in Blantons
own patrol car.
Skjervem remained in custody in Blantons
patrol car for another 10 or 15 minutes. Although the
superior court made no express finding on this issue,
there is substantial evidence suggesting that, during
this time (i.e., while Skjervem was sitting in
handcuffs in Blantons patrol car), the owner of the
house showed up and explained that there was no
burglary, and the police began to release the people
whom they were holding in custody.
But instead of releasing Skjervem, the
supervising officer at the scene Sergeant Pablo Paiz
directed Officer Blanton to remove Skjervem from his
(Blantons) patrol car and bring him to Paiz, still in
handcuffs.
According to Paizs testimony, he directed
Blanton to do this because he had looked into Skjervems
car and had seen a small, round, gold-colored canister
on the front seat of the car. Paiz stated that this
canister was about the size you would make if you
circled your ... thumb and index finger. In other
words, the canister was apparently shallow and a little
bit larger in diameter than a quarter similar to some
popular lip balm containers. (Blanton testified that
he, too, observed this canister on the front seat of
Skjervems car.)
The presence of this small, gold-colored
canister made Paiz suspicious because, [f]rom [his]
experience, people [who] are involved with drugs will
carry small quantities of drugs in these types of
boxes. Paiz believed that Skjervem might be using this
small, gold-colored canister as a stash box, and he
therefore wanted to question Skjervem about drugs
before releasing him from custody.
In a footnote to one of the superior courts
written decisions in this case the Order re Motion for
Reconsideration dated September 12, 2006 the superior
court declared that, in addition to the small, gold-
colored canister, Sergeant Paiz also observed a green
crack pipe and an associated push rod on the seat of
Skjervems vehicle. Somewhat curiously, however, the
superior court did not rely on this fact as a
justification for the officers continued detention of
Skjervem.
Moreover, it is debatable whether the record
supports this finding of fact. It is true that, when
Paiz first described these events, his testimony
suggested that he observed all of these items not only
the small, gold-colored canister, but also the crack
pipe and the push rod at the same time, from a vantage
point outside of Skjervems car. However, when Paiz
was questioned further on this issue, he seems to have
clarified that he had observed only the small, gold-
colored canister at the time he began interrogating
Skjervem and that the other items were discovered
later, hidden behind a backpack that was lying on the
seat of Skjervems car, when Paiz and another officer
(Charles Robertson) entered the vehicle and searched
it.
The testimony of Officers Blanton and
Robertson corroborates this latter version of events.
Blanton testified that when he looked into Skjervems
car (from the outside), he saw the small, gold-colored
canister on the front seat, as well as a backpack and a
cell phone, but he did not see any other items.
Blanton further testified that he certainly would have
made note of the crack pipe if he had seen it.
For his part, Officer Robertson testified
that when he entered and searched Skjervems car, he was
not looking for drugs, but rather for weapons.
According to Robertson, the search of the car took
place after Skjervem had been questioned by Sergeant
Paiz and had admitted that he was carrying a small
amount of marijuana in the gold-colored canister.
Robertson told the court that he was assigned to search
Skjervems car because the police were still considering
releasing Skjervem at this point because [it was just
a] little bit of marijuana and they wanted to make
sure that there were no items in the car that might
pose a threat to them once Skjervem was released.
For these reasons, we have serious doubts
about the assertion in the superior courts footnote
that Sergeant Paiz saw the crack pipe and the
associated paraphernalia in plain view on the seat of
Skjervems car. But because we must send this case back
to the superior court for a further finding on a
different factual issue, we need not decide at present
whether the assertion in the footnote is clearly
erroneous.
Aside from the factual controversy that we
have just described, there were also significant
differences between the testimony given by Sergeant
Paiz and the testimony given by Skjervem concerning
what happened after Officer Blanton brought Skjervem
over to Sergeant Paiz for questioning. However, for
purposes of our decision, we will adhere to the version
offered by Sergeant Paiz, because the superior court
found Paizs version to be more credible.
According to Sergeant Paiz, when Skjervem was
brought to him for further questioning, Paiz asked
Skjervem what was in the small, gold-colored canister,
and Skjervem replied that the canister contained
marijuana. Paiz also testified that he asked Skjervem
if the officers could search his car, and Skjervem
consented.
After receiving this consent, both Paiz and
Officer Robertson searched Skjervems vehicle. Their
searches yielded two crack pipes, a push rod, and a
battery-powered gram scale. Following the seizure of
this drug paraphernalia, Paiz directed Blanton to
search Skjervems person again, this time more
thoroughly. During this search, Blanton felt a lump in
one of Skjervems socks. When Blanton asked Skjervem
what this was, Skjervem replied that it was crack
cocaine.
The superior courts rulings
Superior Court Judge Phillip R. Volland
suppressed Skjervems two admissions of drug possession
his statement that the gold-colored canister contained
marijuana, and his statement that the lump in his sock
was a packet of cocaine because Judge Volland
concluded that these two statements were the products
of custodial interrogation, and the police had not yet
advised Skjervem of his Miranda rights. Nevertheless,
Judge Volland ruled that the police lawfully found and
seized the marijuana and the cocaine.
Judge Volland concluded that the police were
initially justified in taking Skjervem into custody
because of their reasonable belief that there was a
burglary in progress, and that Skjervem might be
connected to the burglary.
Judge Volland further ruled that, even after
the police learned that there was no burglary
occurring, the police were justified in continuing to
detain Skjervem because the officers observed the
small, gold-colored canister what Paiz described as a
stash box on the front seat of Skjervems vehicle. The
judge concluded that the presence of this small, gold-
colored canister gave the police reasonable suspicion
that Skjervem was in possession of a small quantity of
an illicit drug.
Judge Volland next concluded that the search
of Skjervems vehicle was justified because Skjervem
consented to this search. As already explained, this
search yielded two crack pipes, a push rod, and a gram
scale. Judge Volland ruled that the discovery of this
drug paraphernalia gave the police probable cause to
arrest Skjervem and thus to search him again more
thoroughly (i.e., because they could now search him,
incident to arrest, for evidence of drug possession as
well as for weapons).
As we have explained, this renewed search led
to the discovery of the packet of cocaine in Skjervems
sock. Although Judge Volland suppressed Skjervems
statement that this lump in his sock was a packet of
cocaine, the judge concluded that the contents of the
packet inevitably would have been revealed, given that
the police were arresting Skjervem for possession of
the crack pipes. Judge Volland therefore denied
Skjervems motion to suppress the cocaine.
Why we remand this case to the superior court to
resolve two factual issues: (1) whether the police
already knew that there was no burglary when Sergeant
Paiz directed Officer Blanton to bring Skjervem to him
(still in custody) for questioning; and (2) whether the
crack pipe and push rod were lying in plain view on the
seat of Skjervems car
Skjervem does not dispute that the police
could lawfully detain him when they thought that there
was a burglary in progress. However, the police
continued to hold Skjervem in custody even after they
learned that there was no burglary. Thus, the legality
of the ensuing events the events leading to the
seizure of the drug paraphernalia in Skjervems car and
the packet of cocaine in Skjervems sock hinges on
whether the police were justified in continuing to hold
Skjervem in custody even after the burglary
investigation was resolved.
In its brief to this Court, the State
characterizes this issue as whether the police needed
an affirmative reason to alter the focus of their pre-
existing investigative stop of Skjervem. But that is
not the issue. Rather, the issue is whether the police
needed a separate, legally sufficient reason to
continue to detain Skjervem after the suspicions that
led to the initial investigative stop had been
resolved. The answer to this question is yes: the
police needed an affirmative justification for
continuing to detain Skjervem.
In Brown v. State, 182 P.3d 624, 625 (Alaska
App. 2008), this Court quoted the plurality opinion in
Florida v. Royer2 for the proposition that an
investigative stop must be temporary and must last no
longer than is necessary to effectuate the purpose of
the stop. The detention becomes unreasonable and thus
constitutionally invalid if the duration, manner, or
scope of the investigation exceeds these boundaries.
Brown, 182 P.3d at 625.3
Thus, if the burglary investigation had
already been resolved when Sergeant Paiz directed
Officer Blanton to bring Skjervem to him in handcuffs
for further questioning, this continued detention of
Skjervem would be illegal unless the police had a
separate, independent justification for their action
either probable cause to arrest Skjervem for a crime,
or reasonable suspicion that Skjervem had committed a
sufficiently serious crime to satisfy Alaskas standard
for investigative stops (the Coleman test).4
(a) The observation of the small, gold-colored
canister on the seat of Skjervems car did not
provide a justification for the officers continued
detention of Skjervem
As we noted earlier in this opinion, even
though Judge Volland asserted in a footnote that
Sergeant Paiz saw a crack pipe and a push rod in plain
view on the seat of Skjervems vehicle, the judge did
not rely on this fact when he ruled on Skjervems
suppression motion. Instead, Judge Vollands ruling was
based solely on Paizs observation of the small, gold-
colored canister on the seat of Skjervems car.
Judge Volland concluded that, even after the
police learned that no burglary was in progress, the
officers were justified in continuing to detain
Skjervem because Sergeant Paiz was able to see the
small, gold-colored canister on the front seat of
Skjervems vehicle, and because Paiz testified that this
small container looked to [him like] a stash box. That
is, the canister looked like the type of small
container that people [who] are involved with drugs
will sometimes use to carry small quantities of drugs.
Because Judge Volland concluded that the
observation of the small, gold-colored canister was
itself a sufficient justification for Skjervems
continued detention, the judge did not expressly decide
the factual question of when exactly, during these
events, the police found out that there was no
burglary. Under Judge Vollands view of the case, it
made no difference whether this discovery (i.e., the
fact that there was no burglary) came before or after
Sergeant Paiz directed Officer Blanton to bring
Skjervem to his car in handcuffs for further
questioning because Paiz had already observed the
small, gold-colored canister.
But even assuming that Paiz reasonably
suspected that the small, gold-colored canister held a
small amount of an illicit drug, the officers continued
detention of Skjervem would still be illegal. Alaska
law does not allow investigative stops based on
reasonable suspicion that a person possesses a small
amount of an illegal drug for personal use.
In Coleman v. State, 553 P.2d 40 (Alaska
1976), our supreme court held that not every reasonable
suspicion of criminal activity will justify an
investigative stop under the Alaska Constitution.
Rather, investigative stops are limited to situations
where the police have reasonable suspicion that
imminent public danger exists or [that] serious harm to
persons or property has recently occurred. Coleman,
553 P.2d at 46.
In Pooley v. State, 705 P.2d 1293 (Alaska
App. 1985), this Court held that an investigative stop
was justified when the police had reasonable suspicion
that the person they detained was in possession of
marijuana for purposes of distribution or sale.
Applying the Coleman rule, we concluded that the
commercial sale of drugs posed a sufficient danger to
the public to warrant an investigative stop based on
reasonable suspicion. Pooley, 705 P.2d at 1307.
Applying the decision in Pooley, we have
upheld investigative stops based on reasonable
suspicion of drug possession in situations where the
circumstances indicated an intent to sell or where the
quantities were large enough to suggest an intent to
sell. See, e.g., LeMense v. State, 754 P.2d 268, 272-
73 (Alaska App. 1988).
But in Joseph v. State, 145 P.3d 595 (Alaska
App. 2006), we held that the Coleman rule prohibited
investigative stops based on reasonable suspicion that
the person detained possessed a small amount of
marijuana for personal use because this suspected
crime does not involve imminent danger to the public or
serious harm to persons or property. Joseph, 145 P.3d
at 598.
In Skjervems case, if the police continued to
detain him after the burglary investigation was
resolved, this detention can not be justified by the
suspicion that Skjervem had a small amount of an
unspecified drug in the canister. (As we explained
earlier in this opinion, Skjervem soon admitted to Paiz
that there was marijuana in the canister, but Judge
Volland suppressed Skjervems statement because it was
obtained in violation of Miranda.)
Paiz did not testify that he suspected that
Skjervem was selling drugs (and the State presented no
other evidence on this point). Rather, Paiz simply
declared that the presence of the canister in Skjervems
car led him to suspect that Skjervem might be carrying
a small quantit[y] of drugs. Thus, Skjervems case is
not like Pooley, where the suspected crime was
possession of drugs for purposes of sale. Instead,
Skjervems case is like Joseph, where the suspected
crime was possession of a small quantity of drugs for
personal use.
For this reason, we conclude that, under the
Alaska Constitution, the observation of the small, gold-
colored canister on the seat of Skjervems car was not a
sufficient justification for continuing to hold
Skjervem in custody after the matter of the burglary
was resolved. Once the officers determined that no
burglary had occurred, they no longer had a reasonable
suspicion that Skjervem was involved in [recent]
serious harm to persons or property (i.e., the apparent
residential burglary), and the observation of the
canister did not give the officers a reasonable
suspicion that Skjervems activities posed an imminent
public danger. Thus, neither prong of the Coleman test
was satisfied.
In its brief to this Court, the State argues
that the Coleman test was satisfied because, if the
police had reasonable suspicion that the small, gold-
colored canister in Skjervems car contained drugs, the
police would also have had reasonable suspicion that
Skjervem might consume these drugs and then continue to
operate his vehicle while under the influence.
(Operating a motor vehicle under the influence is an
imminent public danger for purposes of Coleman. See
Ebona v. State, 577 P.2d 698, 701 (Alaska 1978).)
To support its argument, the State relies on
Wilburn v. State, 816 P.2d 907 (Alaska App. 1991), and
Hartman v. Division of Motor Vehicles, 152 P.3d 1118
(Alaska 2007). However, the facts of these two cases
are distinguishable from the situation presented here.
In Wilburn, the police observed the defendant
actively using drugs while sitting in a motor vehicle.
816 P.2d at 911. And in Hartman, the police had
information that the defendant had been driving while
intoxicated a short time before the investigative stop,
as well as a reasonable suspicion that the defendant
might resume driving. 152 P.3d at 1120 & 1123-24.
In contrast, the police officers who took
Skjervem into custody, and who were in close quarters
with Skjervem for the 20 to 30 minutes it took to
resolve the burglary matter, testified that Skjervem
was calm and cooperative. None of these officers
mentioned any suspicion or indication that Skjervem was
intoxicated.
Obviously, Skjervem was going to continue to
drive his car if the police released him. But while
operating a motor vehicle under the influence of drugs
poses an imminent public danger for purposes of
Coleman, operating a motor vehicle that contains a
small canister of drugs for personal use does not, by
itself, pose an imminent public danger under Coleman.
For Coleman purposes, the imminent public danger is
that the vehicle will be driven in a dangerous manner,
or that the drugs will be distributed commercially not
that the vehicle is carrying a container of an
intoxicating substance that may later be put to
personal use. If we adopted the States argument, we
would effectively be authorizing investigative stops of
motor vehicles whenever the police have reasonable
suspicion that there are containers of alcoholic
beverages in the vehicle.
(b) Whether the officers could lawfully search
Skjervems car, given the fact that Skjervem
consented to this search
According to the version of events adopted by
Judge Volland in his decision, the police searched
Skjervems car only after Skjervem consented to this
search. If Skjervems consent to this search remains
valid despite the potential unlawfulness of the police
conduct that preceded it, then the evidence found in
Skjervems car would be admissible against him in any
event, and there would be no need to remand this case
to the superior court. On the other hand, if Skjervems
consent to the search of his car was the tainted fruit
of earlier illegal police activities, then the evidence
obtained during the search of Skjervems car would have
to be suppressed.
If Skjervem gave the consent to search while
he was being unlawfully detained (in other words, if
the burglary investigation had already been resolved,
and if the crack pipe and push rod were not in plain
view on the seat of his car), then Skjervems consent to
the search would presumptively be tainted by his
unlawful detention. As this Court recently noted in
Brand v. State, 204 P.3d 383 (Alaska App. 2009), [w]hen
the police obtain the defendants consent [to a search]
after conducting an illegal search or arrest, the
unlawful police action presumptively taints the
defendants related consent to search. Brand, 204 P.3d
at 389 (quoting Moore v. State, 119 P.3d 1018, 1020
(Alaska App. 2005)).5 To overcome this presumption [of
taint], the government must demonstrate a break in the
causal connection between the prior illegality and the
defendants consent. Id. (internal quotation omitted).
Thus, if it was unlawful for the police to
continue their detention of Skjervem, the next issue is
whether Skjervems consent to the search of his car was
sufficiently insulated from the unlawful detention.
(Judge Volland did not reach this issue whether
Skjervems consent to the search of his car was tainted
by the unlawful detention because the judge concluded
that Skjervems continued detention was, in fact,
lawful.)
In his brief to this Court, Skjervem argues
that his purported consent to the search was a direct
result of his unlawful detention, and that all evidence
obtained from the ensuing search must be suppressed.
In the alternative, Skjervem asks this Court to remand
his case to the superior court for a determination as
to whether, and to what extent, Skjervems unlawful
detention tainted his consent to the search.
The State, in its brief, does not address the
possibility that Skjervem was unlawfully detained at
the time he gave his consent to the search of the car.
In other words, even though it is the governments
burden to establish a lack of taint, the State presents
no argument that, even if Skjervems detention was
unlawful, his consent to the search should nevertheless
be deemed untainted by the unlawful detention.
The testimony at the evidentiary hearings in
this case established that Skjervem had been sitting,
handcuffed, in the back of a patrol car for
approximately 20 to 25 minutes when, at the request of
Sergeant Paiz, he was removed from the patrol car and
brought (still handcuffed) to Paiz for further
questioning.
Skjervem testified that, when he was taken
from Blantons patrol car to be questioned by Sergeant
Paiz, the owner of the house had already arrived on the
scene and had explained to the police that there was no
burglary because, as Skjervem sat in the patrol car,
he overheard two police officers discussing this
matter. When Officer Blanton came to retrieve Skjervem
from the back of the patrol car, Skjervem assumed that
he was being released. But instead, Skjervem was
brought to Sergeant Paiz, still in handcuffs. Judge
Volland ruled that, at this point, Skjervem was in
custody for Miranda purposes. (This is why the judge
suppressed Skjervems admission that the gold-colored
canister contained marijuana.)
Given this testimony, there was no break in
the action that would insulate Skjervems consent from
the effects of his unlawful continued detention. We
therefore conclude that if Skjervems continued
detention was unlawful (i.e., if the burglary
investigation had already been resolved, and if the
crack pipe and push rod were not in plain sight on the
seat of Skjervems car), then Skjervems consent to
search his car was tainted by his unlawful detention.
Although the States brief fails to address
the issue of whether Skjervems consent was tainted by
his illegal detention, the State does address a related
issue: whether Skjervems consent was voluntary. Using
the analysis set forth in Frink v. State, 597 P.2d 154
(Alaska 1979), the State argues that the totality of
circumstances support a finding that Skjervems consent
was voluntary.
But as Professor LaFave points out in his
text on search and seizure, even though there is often
substantial overlap between the issues of whether a
consent to search is voluntary and whether a consent to
search is the fruit of a prior illegality, it is
extremely important to understand that ... the two
tests are not identical, and [that,] consequently[,]
evidence obtained by [means of] the purported consent
should be held admissible only if ... the consent was
both voluntary and not an exploitation of the prior
illegality. Wayne R. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment (4th ed. 2004),
8.2(d), Vol. 4, p. 76 (footnotes omitted) (emphasis in
the original).
Thus, even though the State may be correct in
asserting that Skjervems consent meets the test for
voluntariness, this does not mean that the evidence
obtained through the ensuing search of Skjervems car is
admissible because, even if Skjervems consent was
voluntary, this would not negate the fact that
Skjervems consent was the fruit of an unlawful
detention.
There is, however, another possible version
of events: that the burglary investigation was not yet
resolved when Sergeant Paiz questioned Skjervem. If,
at the time Paiz questioned Skjervem, the police still
reasonably believed that they had just interrupted a
residential burglary, then the continued detention of
Skjervem would have been justified, and the police
could presumably question Skjervem and seek his consent
for a search of his vehicle. But even if Skjervem was
lawfully detained at the time of this questioning,
Skjervems consent to search the vehicle might still be
invalid.
Judge Volland ruled that Sergeant Paizs
interrogation of Skjervem took place in violation of
Miranda and, for this reason, Judge Volland suppressed
Skjervems admission that the small, gold-colored
canister contained marijuana. If Skjervem consented to
the search of his car after he admitted that the small
canister in his car contained marijuana, then his
consent to search might be tainted by the Miranda
violation although the resolution of this issue is not
clear.
In United States v. Patane, 542 U.S. 630,
634; 124 S.Ct. 2620, 2624; 159 L.Ed.2d 667 (2004), the
Supreme Court held that the exclusionary rule did not
require suppression of physical evidence obtained as a
result of statements taken in violation of Miranda.
The defendant in Patane was questioned, in violation of
Miranda, about a pistol. During this questioning,
Patane admitted that the pistol was in his bedroom, and
he gave the police permission to retrieve the pistol.6
The Supreme Court concluded that the self-
incrimination clause of the Fifth Amendment protected
Patane only against the use of his statement itself,
and did not protect him against the use of the physical
evidence that the police recovered as a result of his
statement (i.e., the pistol).7
But the facts of Skervems case are arguably
different from the situation presented in Patane. In
Skjervems case, after he admitted that the small, gold-
colored canister contained marijuana, the police did
not simply ask him if they could retrieve the canister.
Rather, they asked Skjervem to consent to a search of
his entire car and that search revealed evidence of
different (and significantly more serious) crimes.
We note, moreover, that several state courts
have rejected the Patane rule on state constitutional
grounds. See Commonwealth v. Martin, 827 N.E.2d 198,
200 (Mass. 2005); State v. Farris, 849 N.E.2d 985, 995-
96 (Ohio 2006); State v. Vondehn, 184 P.3d 567, 575-76
(Or. App. 2008), review granted 200 P.3d 146 (December
10, 2008); State v. Peterson, 923 A.2d 585, 593 (Vt.
2007); State v. Knapp, 700 N.W.2d 899, 918 (Wis. 2005).
If, on remand, Judge Volland determines that
the burglary investigation was still unresolved when
Skjervem consented to have the police search his car,
then Judge Volland should address the question of
whether the Miranda violation bars the State from using
the physical evidence recovered as a result of
Skjervems consent to search.
(c) Whether the renewed search of Skjervems person,
which yielded the packet of cocaine, was lawful
As we explained earlier, Officer Blanton
performed a pat-down search of Skjervem when he first
took Skjervem into custody. Then, after Sergeant Paiz
and Officer Robertson searched Skjervems vehicle and
recovered the crack pipes, the gram scale, and the
other drug paraphernalia, Sergeant Paiz directed
Officer Blanton to search Skjervems person again, this
time more thoroughly. During this search, Blanton felt
a lump in one of Skjervems socks. When Blanton asked
Skjervem what this was, Skjervem replied that it was
crack cocaine. (As we have already explained, Judge
Volland suppressed Skjervems statement because he
concluded that the statement was elicited in violation
of Miranda.)
The question is whether the discovery of the
cocaine in Skjervems sock was tainted by the earlier
acts we have just discussed (if those acts were
unlawful).
When Judge Volland denied Skjervems motion to
suppress the evidence in this case, the judge made
alternative rulings as to why the discovery of the
packet of cocaine was lawful. The judge issued
alternative rulings because he found that it was not
clear, from the testimony, whether the second search of
Skjervems person took place before or after the police
found the crack pipes and other drug paraphernalia in
Skjervems car.
Judge Volland first concluded that, if the
search of Skjervems person was conducted after the
discovery of the crack pipes and other drug
paraphernalia in Skjervems car, then the search was
justified as a search incident to arrest because the
police would have had probable cause to arrest Skjervem
at that time.
(It is important to note that Judge Vollands
rationale was not that the crack pipe and push rod were
in plain view on the seat of Skjervems car from the
very beginning, before Skjervem was interrogated in
handcuffs by Sergeant Paiz. Rather, the judges
rationale was that (1) the small, gold-colored canister
was visible from outside Skjervems vehicle; (2) the
observation of this canister gave the police a
sufficient justification for continuing to detain
Skjervem; (3) during the ensuing interrogation by
Sergeant Paiz, Skjervem consented to have the police
search his vehicle; and (4) this search yielded the
crack pipes and other drug paraphernalia.)
Judge Volland alternatively concluded that,
even if the search of Skjervems sock occurred before
the discovery of the crack pipes and other drug
paraphernalia in Skjervems vehicle, the police were
nevertheless entitled to repeat their pat-down search
of Skjervems person for weapons because Skjervem had
lawfully been subjected to investigative detention.
In its brief to this Court, the State
addresses only the first of these rationales. That is,
the State argues that the renewed search of Skjervems
person was a valid search incident to arrest, based on
the fact that the police had probable cause to arrest
Skjervem following the discovery of the drug
paraphernalia in Skjervems car.
We have already explained why we conclude
that the search of Skjervems car was unlawful if the
police continued to detain Skjervem after the burglary
investigation was resolved, and (alternatively) that
the search of Skjervems car may have been unlawful if
Skjervems consent to this search was tainted by the
Miranda violation. Under either of these theories, any
renewed search of Skjervems person could not be
justified as a search incident to an arrest based on
the items found in Skjervems car.
This leaves Judge Vollands alternative
ruling: that even if the police did not have probable
cause to arrest Skjervem when they conducted the second
pat-down search of Skjervems person, the police were
nevertheless entitled to conduct that second pat-down
as part of their continued investigative detention of
Skjervem. But this alternative ruling must be rejected
if the burglary investigation had already been resolved
and Skjervems continued detention was unlawful.
For these reasons, we conclude that if
Skjervem was detained after the police found out that
there was no burglary, and if the crack pipe and the
push rod were not in plain view on the seat of
Skjervems car (to an observer standing outside the
car), then the packet of cocaine found in Skjervems
sock must be suppressed.
Conclusion
For the reasons explained in this opinion, we
conclude that we must remand this case to the superior
court for supplemental findings on two issues of fact.
First, the superior court must determine
whether Sergeant Paiz, standing outside Skjervems car,
observed a crack pipe and associated push rod in plain
view on the seat of the car. As we have explained,
Judge Volland seemingly made a finding in the States
favor on this point, but the judge inserted this
finding in a footnote, and he did not rely on this
finding when he made his various rulings in this case.
Moreover, as we have also explained, there is a
significant amount of testimony that calls this finding
into question. We therefore direct Judge Volland to re-
examine this issue.
Second, the superior court must determine
when the police found out that there was no burglary
whether this knowledge came before or after Sergeant
Paiz began his custodial interrogation of Skjervem. If
the police continued to hold Skjervem in custody after
the burglary investigation was resolved, and if their
only justification for this continued detention was the
observation of the small, gold-colored canister, then
the continued detention of Skjervem was illegal and
all of the evidence stemming from that continued
detention must be suppressed.
The superior court shall enter findings on
these two questions. The court may do this based
simply on a review of the testimony already presented
at the evidentiary hearings in this case;
alternatively, the superior court may, in its
discretion, hear supplemental testimony on these
issues.
The superior court shall reduce its findings
to writing and shall transmit its written findings to
this Court within 60 days of the issuance of this
opinion.
The parties shall then have 30 days to file
supplemental memoranda addressing the superior courts
findings.
After we have received the parties
supplemental memoranda, we shall resume our
consideration of this case.
We retain jurisdiction of this case.
BOLGER, Judge, concurring in the result.
I concur in the result of the lead opinion
because I agree that this case should be remanded for
further findings. I write separately because my view
of the record diverges from my colleagues on certain
key issues.
The lead opinion suggests that the police
continued to hold Skjervem in custody after they
learned that there was no burglary and before they
discovered the drug paraphernalia in Skjervems car.
But the trial courts decision strongly implies that
Sergeant Paiz discovered the drug paraphernalia in
Skjervems vehicle before the officer was aware that the
owner of the residence arrived at the scene. Indeed,
there is substantial evidence in the record supporting
this implication of the trial courts ruling when the
record is viewed in the light most favorable to that
decision.1
Paiz testified that there were already a
number of officers present when he arrived at the
residence around 5:15 p.m. He noticed a tan Ford
vehicle in the parking space directly in front of the
residence. Paiz initially tried to question the woman
who had been taken into custody, but she was too
agitated to respond in a rational manner. He then went
into the residence with several other officers to make
sure that there was no one else inside.
The officers finished clearing the residence
at about 5:30 p.m. At that point, Paiz went to look at
the tan vehicle parked in front of the residence. This
was when he observed the drug paraphernalia in the
front seat and directed another officer to bring
Skjervem to the vehicle. It was then that Skjervem
agreed to let the police search the vehicle.
Additionally, Paiz was familiar with the
owner of the residence, Steve Grizzell. On cross
examination, Paiz was questioned about whether Grizzell
was in the car with Skjervem when the police first
arrived, or whether Grizzell was in a patrol car after
Paiz cleared the residence. Paizs responses suggested
that Grizzell was not present. There was nothing in
his report to indicate exactly when Grizzell arrived.
But Paiz did recall that the burglary investigation was
underway when he walked out of the residence, and that
it was still underway shortly thereafter when he had
Skjervem brought over to the vehicle.
Paizs description of this part of the
investigation is supported by the testimony of Officer
Arthur Anderson, the officer who actually spoke with
Grizzell. Anderson was one of the first officers to
arrive at the residence after receiving a dispatch call
for a burglary in progress. He assisted in detaining
the woman who was putting a screen back on one of the
windows and observed other officers detaining Skjervem
and his cars passenger in the driveway. Grizzell did
not arrive until after the officers had cleared the
residence when they were at the end stages of clearing
everything up. Anderson spoke with Grizzell, who
confirmed that the two people the police had detained
at the residence had his permission to be there.
The lead opinion relies on Officer Blantons
testimony suggesting that the owner of the house
arrived and talked with Paiz while Blanton was waiting
in his patrol car with Skjervem. But Blantons
testimony on this point is not based on his personal
observations. At first, Blanton said that Paiz had
talked with Grizzell, but that he did not know what
they discussed. Blanton then clarified that he only
assumed that Paiz had talked with Grizzell because of a
radio transmission stating that the houses owner had
arrived. Blanton was unsure about the time frame, but
it made sense to him that the owner arrived before
Blanton brought Skjervem over to the vehicle to talk
with Paiz.
In my opinion, the description by Anderson
and Paiz about the sequence of events is more
convincing than Blantons recollection, which was based
on speculation from a radio transmission. The
testimony by Anderson and Paiz supports the judges
conclusion that Paiz had discovered the paraphernalia
in Skjervems vehicle before Grizzell arrived, and that
this discovery allowed the police to detain Skjervem
even after Grizzell told them that no burglary had
occurred.
The majority opinion also questions Judge
Vollands finding that Paiz saw the crack pipe and other
drug paraphernalia before he asked Skjervem for his
consent to search the vehicle. However, there is
substantial support in the record for the judges
finding that Paiz observed not only a stash box, but a
backpack, two lighters, a wallet, a green crack pipe,
and a pushrod when he first looked into the window of
Skjervems vehicle.
As noted above, Paiz testified on direct
examination that after the officers made sure that no
one was inside the residence, he came outside and went
over to look at the tan car in front of the residence.
When he looked through the cars window, he saw a small
round canister (which he called a stash box). He could
also see a backpack, a green crack pipe, two plastic
lighters, a wallet, and a push rod (a type of rod used
to smoke crack cocaine). Only then did Paiz ask to
have the driver, Skjervem, brought over to talk to
him. Paiz asked Skjervem if the police could search
his car, and Skjervem said that they could.
After Paiz obtained Skjervems permission, he
opened the drivers side door and looked into the
vehicle. On cross-examination, Paiz initially asserted
that, at that point, he could see the backpack, wallet,
stash box, and crack pipe. He said that the backpack
was positioned to the right side of the steering wheel,
and that the other items were behind this backpack.
Paiz then clarified that he would not have
seen the other items at that point if he had not moved
the backpack. Shortly afterwards, however, he
confirmed his prior recollection that all of the items
were on top of the front seat. No one asked Paiz to
clarify the exact position of the drug paraphernalia.
In particular, no one ever asked him whether he had
actually seen the drug paraphernalia when he first
looked into the car before he talked to Skjervem. Paiz
did not concede that he had only observed the gold
canister at the time he began interrogating Skjervem
and that he discovered the other items only after he
searched the vehicle.
The lead opinion suggests that Paiz told
Blanton that he did not discover the crack pipe, the
push rod, or the other drug paraphernalia until he
actually searched Skjervems vehicle. But Blantons
testimony implies that Paiz stated that he had
discovered the drug paraphernalia in Skjervems vehicle
while Blanton was still sitting in his patrol car.
This suggests that Paiz discovered the drug
paraphernalia in Skjervems vehicle before Paiz had
Blanton bring Skjervem over to the vehicle.
Consequently, I conclude that Paizs direct
examination constitutes substantial evidence supporting
Judge Vollands finding that Paiz observed not only a
stash box, but a backpack, two lighters, a wallet, a
green crack pipe, and a pushrod when he first looked
into the window of Skjervems vehicle. It appears to me
that Judge Volland did not discuss the implications of
this finding because his decision also rested on an
independent basis for Skjervems detention: that
Skjervem was still detained for the burglary
investigation when Paiz asked to search the car.
I agree with the decision to remand this case
because the proper result may hinge on these two
disputed evidentiary issues. If Paiz saw all of the
drug paraphernalia, including the crack pipe and stash
box on the seat, before he talked to Skjervem, then
Paiz would arguably have had probable cause to arrest
Skjervem and to search him incident to that arrest.2
Moreover, if Skjervem was legally detained for the
burglary investigation when Paiz asked to search
Skjervems car, then his consent was not tainted by an
illegal detention.3
_______________________________
1 AS 11.71.040(a)(3)(A).
2 460 U.S. 491, 500; 103 S.Ct. 1319, 1325; 75 L.Ed.2d 229
(1983).
3 Citing Royer, 460 U.S. at 500, 103 S.Ct. at 1325-26.
4 See Coleman v. State, 553 P.2d 40, 46 (Alaska 1976) (holding
that, under the Alaska Constitution, the authority of the
police to conduct investigative stops based on less than
probable cause is limited to situations where the officers
have reasonable suspicion of an imminent public danger or of
recent serious harm to persons or property).
5 See Brown v. Illinois, 422 U.S. 590, 601-04; 95 S.Ct. 2254,
2260-62; 45 L.Ed.2d 416 (1975); Wong Sun v. United States,
371 U.S. 471, 485-86; 83 S.Ct. 407, 416; 9 L.Ed.2d 441
(1963).
6 Id. 542 U.S. at 635, 124 S.Ct. at 2625.
7 Id., 542 U.S. at 643-44, 124 S.Ct. at 2630 (Justice Thomas,
writing for the three-member plurality) and 542 U.S. at 645,
124 S.Ct. at 2631 (Justice Kennedy, writing for the two-
member concurrence).
1 See Crawford v. State, 138 P.3d 254, 258 (Alaska 2006);
State v. Campbell, 198 P.3d 1170, 1173 (Alaska App. 2008)
(holding that the record should be viewed in the light most
favorable to the prevailing party when reviewing a trial
courts disposition of a motion to suppress).
2 See Dollison v. State, 5 P.3d 244, 246-47 (Alaska App.
2000); Snider v. State, 958 P.2d 1114, 1118 (Alaska App.
1998).
3 See Hubert v. State, 638 P.2d 677, 688 & n.9 (Alaska App.
1981).
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