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Duncan v. State (3/14/2008) ap-2151

Duncan v. State (3/14/2008) ap-2151

                             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


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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