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Saepharn v. State (8/7/2015) ap-2467

Saepharn v. State (8/7/2015) ap-2467

                                                                                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  

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                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                      



STEVEN  SAEPHARN,  

                                                                                                                                                  

                                                                                                       Court of Appeals No. A-11170  

                                                                                                                                                                

                                                      Appellant,                                    Trial Court No. 3AN-08-9468 CR  



                                         v.  

                                                                                                                    O  P  I  N  I  O  N  

                                                                                                                                                  

STATE  OF  ALASKA,  



                                                      Appellee.                                           No. 2467 - August 7, 2015  

                                                                                                                                                       



                           Appeal   from  the   Superior   Court,  Third  Judicial                                                   District,  

                                                                                                                                   

                           Anchorage, Michael L. Wolverton, Judge.  

                                                                                               



                           Appearances:                  Megan Webb,  Assistant  Public  Defender,  and  

                                                                                                                                              

                           Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                                                                                                                                                       

                           Diane  L.  Wendlandt,  Assistant  Attorney  General,  Office  of  

                                                                                                                                                

                           Criminal   Appeals,   Anchorage,   and                                      Michael   C.   Geraghty,  

                                                                                                                                 

                           Attorney General, Juneau, for the Appellee.  

                                                                                                                



                           Before:   Mannheimer, Chief Judge, Allard, Judge, and Hanley,  

                                                                                                                                       

                           District Court Judge.*  

                                                                       



                                        

                           Judge MANNHEIMER.  



       *      Sitting    by   assignment   made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  



Constitution and Administrative Rule 24(d).                              


----------------------- Page 2-----------------------

                       Steven   Saepharn   appeals   his   conviction   for   fourth-degree   controlled  



                                                                                                 1  

substance misconduct (possession of methamphetamine).                                                                             

                                                                                                    The police found Saepharn's  



                                                                                                                                              

methamphetamine in a plastic bag in his pocket, while the police were conducting a pat- 



                                                                                       

down search of Saepharn's clothing for weapons.  



                                                                                                                                     

                       Saepharn argues that the officer exceeded the proper scope of the pat-down  



                                                                                                                                                      

search when the officer felt and then removed the plastic bag from Saepharn's pocket.  



                                                                                                                                          

For the reasons explained in this opinion, we conclude that by the time the officer patted  



                                                                                                                                              

Saepharn's pocket and felt  a  bag or pouch of crystalline substance,  the officer had  



                                                                                                                                           

probable cause to believe that the substance was methamphetamine.  The officer could  



                                                                                                        

therefore lawfully remove the bag from Saepharn's pocket.  



                                 

            Underlying facts  



                                                                                                                                             

                       On August 21,  2008,  while Anchorage  police officer Jack Carson was  



                                                                                                                                                  

patrolling the Mountain  View  area of Anchorage, he observed a Honda Civic with a  



                                                                                                                                     

cracked  windshield  and  a  defective  taillight.                                  Carson  activated  his  patrol vehicle's  



                                                                                                                                             

overhead  lights,  signaling  the  driver  of  the  Honda  to  stop.                                             The  driver  did  not  



                                                                                                                                           

immediately pull over, but continued driving slowly until he turned onto another street  



                                    

and finally stopped.  



                                                                                                                                                 

                       Another police officer,  Sergeant Christopher Sims, was also patrolling in  



                                                                                                                                         

the area and happened to see Carson attempting to stop the Honda.  Sims saw the Honda  



                                                                                                                                               

make the turn onto the other street.  As the Honda made this maneuver, Sims saw the  



                                                                                                                                            

front passenger door of the Honda open slightly, then close again - as if someone were  



      1    AS 11.71.040(a)(3)(A).                   



                                                                      - 2 -                                                                  2467
  


----------------------- Page 3-----------------------

                                                                                                                                     

preparing to leave the vehicle, or as if someone were discarding something out the door.  



                                                                  

Sims told Carson about what he had seen.  



                                                                                                                             

                    Once the Honda came to a stop, Carson approached the car and spoke with  



                                                                                                                     

the driver.  Saepharn was a passenger in the front seat, and there was a second passenger  



                                  

in the rear of the car.  



                                                                                                                               

                    The driver of the Honda asked Carson for permission to callhis mother, and  



                                                                                                                              

Carson agreed.  When the driver pulled his mobile phone from his pocket, Carson saw  



                                                                                                                                 

a cut-off straw in the pocket.  When the driver saw that the straw was visible, he tried to  



                                                         

push the straw back into his pocket.  



                                                                                                                                 

                    Carson later testified that a cut-off straw is "probably the classic piece of  



                                                                                                                                

drug paraphernalia".              These straws are used  to ingest controlled substances such as  



                                                                                                                                 

methamphetamine and cocaine in their powder form.  Carson relayed his observation of  



                                         

the cut-off straw to Sims.  



                                                                                                                                 

                    Because the driver of the Honda had apparently been initially reluctant to  



                                                                                                                              

pull over when Carson activated his overhead lights, and because the driver had the cut- 



                                                                                                                        

off straw in his pocket, and because Sims had informed Carson about the quick opening  



                                                                                                                        

and closing of the front passenger door just before the Honda stopped, Carson decided  



                                                                                                                           

to obtain more information from the other occupants of the  Honda.                                            Carson asked  



                                                                                                                              

Saepharn to provide his name to Sims, who had positioned himself on the passenger side  



                                                                                                                   

of the Honda.  Saepharn rolled down the window and told Sims his name.  



                                                                                                                              

                    In the meantime,  other officers  were arriving on the scene.                                   Once this  



                                                                                                                         

backup arrived, Carson ordered the driver to  get  out  of the car.   The driver initially  



                                                                                                                              

refused, declaring that he had done nothing wrong.  When Carson told the driver that  



                                                                                                                               

either he could exit the vehicle voluntarily or Carson would pull him out of the car, the  



                               

driver stepped out.  



                                                              - 3 -                                                          2467
  


----------------------- Page 4-----------------------

                                                                                                                                     

                    After the driver got out of the Honda, Carson frisked him for weapons.  



                                                                                                                       

During this frisk,  the driver tried to pull away from Carson.                                  After a  brief struggle,  



                                                                                                      

Carson handcuffed the driver and walked him away from the car.  



                                                                                                                               

                    During Carson's brief struggle with the driver, Sims looked away from the  



                                                                                                                               

Honda to watch the struggle.  While Sims's attention was diverted, Saepharn put his left  



                                                                                                                            

hand into his left pants pocket.  One of the backup officers, Charles Reynolds, saw what  



                                                                                                                                

Saepharn had done; he drew his pistol and yelled at Saepharn to take his hand out of his  



                                                                                                                              

pocket.  Sims then looked, saw that Saepharn had his hand in his left pocket, and saw  



                                                                                                   

that Saepharn was doing something with his hand in the pocket.  



                                                                                                                                 

                    Concerned that Saepharn might have a weapon or that he was trying to  



                                                                                                                              

conceal something, Sims grabbed Saepharn's right arm through the open window and  



                                                                                                                        

pinned it outside the Honda.   Another officer entered the Honda through the driver's  



                                                                                                                              

door and grabbed Saepharn's left arm.                          The officers then handcuffed Saepharn and  



                                                 

removed him from the Honda.  



                                                                                                                          

                    Once Saepharn was outside the Honda, Sims conducted a pat-down search  



                                                                                                                                  

of Saepharn's clothing for weapons.  Saepharn was wearing nylon shorts made from a  



                                    

"pretty thin material."  



                                                                                                                              

                    Sims first patted Saepharn's right shorts pocket.  He felt a lighter and cut- 



                                                                                           

off straws as he patted the material against Saepharn's leg.  



                                                                                                                                  

                    Next, Sims patted Saepharn's left pocket.   In that left pocket, Sims felt a  



                                                                                                                              

"baggie of some kind"  filled with a substance that was "crystalline in nature" - like  



                                                                                                                   

"brown coarse sugar that you get at the store".  When Sims was asked at the evidentiary  



                                                                                                                     

hearing whether he had to manipulate the bag "a lot" to feel its contents, Sims answered  



                                                                                                                    

no - that he could easily  tell,  from its feel,  that the baggie contained a crystalline  



                   

substance.  



                                                              - 4 -                                                          2467
  


----------------------- Page 5-----------------------

                                                                                                                          

                    Sims removed the item from Saepharn's left pocket.  It was a small plastic  



                                                                                                                               

bag  containing  a  crystalline  substance  -  what  later  proved  to  be  3.1  grams  of  



                                

methamphetamine.  



                                                                                                                                     

                    Sims arrested Saepharn for unlawful possession of a controlled substance.  



                                                                                                                          

During a more complete search incident to this arrest, Sims found another smaller baggie  



                                                                                                                                

in Saepharn's right pocket.   This baggie contained 0.3 grams of methamphetamine -  



                                                                                                                       

about a tenth of the amount that was in Saepharn's left pocket.  Sims had not detected  



                                                           

this baggie during the earlier pat-down search.  



                                                                                                                                     

                    Following  his  indictment,  Saepharn  moved  to  suppress  this  evidence.  



                                                                                                                           

Saepharn claimed that Sims had exceeded his authority when he removed the first baggie  



                                                                                                                                     

from Saepharn's left pocket, since this baggie did not reasonably appear to be a weapon.  



                                                                                                                   

After holding an evidentiary hearing, the superior court denied this motion.  



                                                                                                                        

                    Later,  after  Saepharn  hired  a  different  attorney,  he  filed  a  second  



                                                                                                                                  

suppression motion, again challenging the pat-down search.  The superior court held a  



                                                                                                                            

second evidentiary hearing and, based on the testimony given at both hearings, the court  



                                                         

denied the new suppression motion.  



                                                                                                                           

                    Specifically, the superior court found that the materialof Saepharn's shorts  



                                                                                                                               

was thin, and that when Sims conducted the pat-down search of Saepharn's pockets, the  



                                                                                                                                

officer could identify the items he felt - the lighter, the cut straws, and the packet of  



                                                                                                                            

crystalline substance - simply by patting, without improper manipulation.  The court  



                                                                                                                                

concluded that,  based on this knowledge,  Sims could lawfully  remove the baggie of  



                                                           

crystalline substance from Saepharn's pocket.  



                                                              - 5 -                                                          2467
  


----------------------- Page 6-----------------------

                   Why we uphold the superior court's ruling                                                           



                                     Saepharn   does   not   challenge   Sergeant   Sims's   authority   to   pat   down  



Saepharn's clothing for weapons, but Saepharn argues that this authority to conduct a                                                                                                                                                    



pat-down    did    not    include    the    authority    to    search    and    remove    the    baggie    of  



methamphetamine -                                           i.e., an item that was obviously not a weapon - from Saepharn's                                                                                   



left pocket.                      



                                     The law that applies to this situation is set forth in                                                                              Minnesota v. Dickerson                                            ,  



508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).                                                                                                         



                                     In  Dickerson, the Supreme Court re-affirmed the principle that when the                                                                                                                       



police conduct a pat-down search during an investigative stop, the purpose of the pat-                                                                                                                                            



down is to ensure officer safety, and the scope of this search must be limited to "[what]                                                                                                                               

                                                                                                                       2    It is unlawful for the police to expand the  

is necessary for the discovery of weapons".                                                                                                                                                                                         



                                                                                                                                                                                                                                       3  

scope of the pat-down beyond this limit in an effort to discover evidence of a crime.  

                                                                                                                                                                                                                                           



                                     Nevertheless, if the police conduct a pat-down search of lawful scope and,  

                                                                                                                                                                                                                                 



during this pat-down, they detect contraband through their sense of touch, they may seize  

                                                                                                                                                                                                                                

                                           4   As we are about to explain, the crucial question is whether the physical  

the contraband.  

                                                                                                                                                                                                                       



characteristics of the object, felt through the suspect's clothing, provide probable cause  

                                                                                                                                                                                                                              



to believe that it is contraband.  If so, then the contraband can lawfully be seized.  

                                                                                                                                                                                                                                 



                                     The Dickerson decision described the test as whether the results of the pat- 

                                                                                                                                                                                                                                   

                                                                                                                                                                    5      But this is a misleading  

down make the object's identity  "immediately apparent".                                                                                                                                                       

                                                                                                                                      



         2        Id.,  508 U                .S.  at  373,   113 S                      .Ct.  at  2136.   



         3        Ibid.   



         4        Id.,  508 U                .S.  at  375,   113 S                      .Ct.  at  2137.   



         5        Ibid.   



                                                                                                                 - 6 -                                                                                                            2467
  


----------------------- Page 7-----------------------

 phrasing of the rule.                                        The real test is                                 whether the results of the pat-down establish                                                                



 probable cause to believe that the object is contraband.                                                                                                  See the United States Supreme                                    



 Court's explanation of this point in                                                                Texas v. Brown                               , 460 U.S. 730, 741-42; 103 S.Ct.                                                  



 1535, 1542-43; 75 L.Ed.2d 502 (1983), and the Alaska Supreme Court's explanation of                                                                                                                                                           



 this same point in                                Klenke v. State                             , 581 P.2d 1119, 1123 (Alaska 1978).                                                                         



                                      If the typical act of "patting" does not reveal the object as contraband -                                                                                                                             



 if its identity as contraband is revealed "only after squeezing, sliding[,] and otherwise                                                                                                                               



 manipulating the contents of the [suspect's] pocket", then the seizure of the contraband                                                                                                                             



                                  6  

 is unlawful.                          



                                       On the other hand, when a court assesses whether there was probable cause  

                                                                                                                                                                                                                                      



 for the police to remove and seize an object from a suspect's pockets, the court is not  

                                                                                                                                                                                                                                           



 limited to the tactile information revealed by the officer's patting.  The court can also  

                                                                                                                                                                                                                                         



 consider the surrounding circumstances.  

                                                                                                                    



                                      As  Professor  LaFave  explains  in  his  work  on  the  law  of  search  and  

                                                                                                                                                                                                                                         



 seizure,  "although  grass-like  substances  are  not  per  se  contraband",  the  police  can  

                                                                                                                                                                                                                                          



justifiably rely on the fact that "[a particular] grass-like substance ... is precious enough  

                                                                                                                                                                                                                                

 to be collected and placed in plastic containers". 7                                                                                       Similarly, the police can rely on other  

                                                                                                                                                                                                                                      



 circumstances such as a suspect's attempted concealment of the item, or a suspect's other  

                                                                                                                                                                                                                                       



 reactions upon seeing the police nearby, or the fact that the suspect is in possession of  

                                                                                                                                                                                                                                              

 implements that are used for ingesting the suspected drug. 8  

                                                                                                                                                     

                                                                                                                                                                        



          6        Id., 508 U.S. at 378, 113 S.Ct. at 2138.                                                                  



          7  

                                                                                                                                                                                                                                              

                    Wayne R. LaFave, Search and Seizure: ATreatise on the Fourth Amendment (5th ed.  

                                                                                                                                                                                                                                         

 2012),  3.6(b), Vol. 2, pp. 389-390 (quoting People v. Symmonds , 310 N.E.2d 208 (Ill. App.  

                       

 1974)).  



          8  

                                                                   

                   Id. at pp. 391-95.  



                                                                                                                     - 7 -                                                                                                               2467
  


----------------------- Page 8-----------------------

                          Although   these   types    of   surrounding   circumstances   are   most   often  



considered when deciding whether the seizure of an item was justified by "plain view",                                                                       



these same circumstances can also be considered when the government contends that the                                                                               



                                                                                                                             9  

seizure of an item was justified by "plain feel" or "plain touch".                                                              



                          In Saepharn's case, the superior court found that Saepharn's shorts were  

                                                                                                                                                                



made of a thin material, and that the items in Saepharn's pockets - the lighter, the cut  

                                                                                                                                                                    



straws, and the bag filled with a crystalline substance - were sufficiently distinctive that  

                                                                                                                                                                  



the  officer  was  able  to  identify  them  through  patting,  without  additional improper  

                                                                                                                                                       



manipulation.  Saepharn challenges this finding, but he has the burden of showing that  

                                                                                                                                                                  

the finding is clearly erroneous. 10  

                                                                  



                          Here, the record does not leave us with a "definite and firm conviction" that  

                                                                                                                                                                   

the superior court's finding is mistaken. 11                                       Rather, the record affirmatively supports the  

                                                                                                                                                                   



superior court's conclusion that the patting in this case did not exceed lawful limits.  

                                                                                                                                                                    



                          We note,  in particular,  that Sims failed  to discover the smaller  plastic  

                                                                                                                                                           



baggie that was in Saepharn's right pocket - the same pocket that contained the lighter  

                                                                                                                                                              



and the cut straws.  The fact that Sims identified the presence of the lighter and the cut  

                                                                                                                                                                    



straws, but failed to identify the presence of the baggie, supports the superior court's  

                                                                                                                                                            



finding that Sims was merely patting Saepharn's pocket, and not squeezing, sliding, or  

                                                                                                                                                                      



otherwise manipulating the objects within the pocket.  

                                                                                                          



                          In addition to Sims's tactile perception of the bag (i.e., his perception that  

                                                                                                                                                                  



it contained a crystalline substance), there were the other circumstances known to the  

                                                                                                                                                                   



       9     Id.  at pp. 403-04.               



       10  

                                                                                                                                                                 

             See Booth v. State, 251 P.3d 369, 373 (Alaska App. 2011) (explaining that  a trial  

                                                                                                                                                                     

court's findings of historical fact are reviewed under the "clearly erroneous" standard of  

                 

review).  



       11  

                        

             Ibid.  



                                                                                - 8 -                                                                            2467
  


----------------------- Page 9-----------------------

                                                                                                                        

police at the time:   the behavior of the  driver before and during the stop,  the quick  



                                                                                                                              

opening and closing of the passenger door just before the car stopped, the presence of  



                                                                                                                              

cut-off straws in the pockets of both the driver and Saepharn, and Saepharn's refusal to  



                                                                                                               

remove his hand from his pocket (until the officers used force).  Given the combination  



                                                                                                                  

of these factors, we conclude that Sims had probable cause to believe that the crystalline  



                                                                                                                 

substance he felt in Saepharn's pocket was contraband.  Sims was therefore authorized  



                                                                      

to remove the baggie from Saepharn's pocket.  



          Conclusion  



                                                                                                   

                    The judgement of the superior court is AFFIRMED.  



                                                             - 9 -                                                        2467
  

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