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Skjervem v. State (9/18/2009) ap-2237

Skjervem v. State (9/18/2009) ap-2237

                             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


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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