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McGuire v. State (6/1/2018) ap-2603

McGuire v. State (6/1/2018) ap-2603

                                                                               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  

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                                                         E-mail:  corrections@ akcourts.us  



                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                      



ERIC  SHERRON  MCGUIRE,  

                                                                                                                                                 

                                                                                                       Court of Appeals No. A-11268  

                                                                                                                                                               

                                                      Appellant,                                   Trial Court No. 3AN-10-6660 CR  



                                        v.  

                                                                                                                    O  P  I  N  I  O  N  

                                                                                                                                                 

STATE  OF  ALASKA,  



                                                      Appellee.                                            No. 2603 - June 1, 2018  

                                                                                                                                                    



                           Appeal   from  the   Superior   Court,  Third  Judicial                                                  District,  

                                                                                                                                  

                           Anchorage, Jack W. Smith, Judge.  

                                                                                



                           Appearances:  Catherine Boruff, Assistant Public Defender, and  

                                                                                                                                              

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

                                                                                                                                                      

                           Eric  A.  Ringsmuth,  Assistant  Attorney  General,  Office  of  

                                                                                                                                               

                           Criminal   Appeals,   Anchorage,   and                                      Michael   C.   Geraghty,  

                                                                                                                                

                           Attorney  General,  and  James   E.  Cantor,  Acting  Attorney  

                                                                                                                                  

                           General, Juneau, for the Appellee.  

                                                                                              



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

                                                                                                                                   

                           Superior 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-----------------------

                                                                                                                   

                    Eric Sherron McGuire appeals his convictions for fourth- and sixth-degree  



                                                                                                                        

controlled substance misconduct.  He asserts that the evidence against him was obtained  



                                                                                                                                

as a result of an unlawful pat-down search.  For the reasons explained in this opinion, we  



                                                                                                                       

conclude that the evidence against McGuire was obtained lawfully,  and we therefore  



                                     

affirm his convictions.  



                              

           Underlying facts  



                                                                                                                               

                    In May 2010, McGuire was stopped by the police because his vehicle had  



                                                                              

studded tires after the May 1st seasonal deadline.  



                                                                                                                    

                    The officer who made the traffic stop, Jon Butler, asked to see McGuire's  



                                                                                                                                 

driver's  license  and  proof  of  insurance.                        McGuire  handed  Butler  a  certificate  of  



                                                                                                                           

insurance, and he told Butler that the insurance was current.   But when Butler called  



                                                                                                                                  

McGuire's  insurance  company  to  verify  that  the  insurance  policy  was  in  force,  a  



                                                                                                                         

company representative told Butler that the policy had been canceled some three months  



             

earlier.  



                                                                                                                      

                    After  receiving  this  information,  Officer  Butler  decided  to  impound  



                                

McGuire's vehicle.  



                                                                                                                               

                    (As  authority  for   impounding   McGuire's  vehicle,   Butler   relied  on  



                                                                                                                                

Anchorage Municipal Code   09.28.026.A.                               This ordinance gave police officers the  



                                                                                                                                 

authority, at their discretion, and without a court order, to impound the motor vehicle of  



                                                                                                                                 

any person who was arrested for driving without having vehicle insurance.   In Taha v.  



                                                                                                                                     

State, 366 P.3d 544 (Alaska App. 2016), we declared this ordinance unconstitutional.  



                                                                                                                           

However, McGuire never sought suppression of the evidence against him on the theory  



                                                                           

that the impoundment of his vehicle was illegal.)  



                                                               - 2 -                                                          2603
  


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

                                                                                                                                

                    Because McGuire's vehicle was going to be impounded, McGuire and his  



                                                                                                                        

passenger  were ordered to step out of the vehicle.   Butler also summoned a backup  



                                 

officer to the scene.  



                                                                                                                          

                    While  Butler,  McGuire,  and  his  passenger  were  waiting at  the  scene,  



                                                                                                                               

McGuire called his brother-in-law for a ride.   Officer Butler assured McGuire that his  



                                                                                                                    

brother-in-law would be allowed to remain at the scene while the police were processing  



                                                                                                                                

McGuire's vehicle, and that McGuire was not going to be arrested - that he would be  



                                                                                                                

allowed to leave with his brother-in-law when their encounter was done.  



                                                                                                                            

                    (McGuire's brother-in-law arrived at the scene at approximately the same  



                                             

time as the backup officer.)  



                                                                                                                           

                    After Officer Butler asked McGuire to get out of his vehicle, Butler asked  



                                                                                                                                  

McGuire if he was carrying any weapons.   McGuire answered that he was carrying a  



                                                                                                                             

pocket knife in his right-front pants pocket.  Butler asked McGuire for permission to take  



                                                                                                                                     

possession of this pocket knife until their encounter was over.  McGuire agreed to this.  



                                                                                        

Butler then patted McGuire's pocket to locate the knife.  



                                                                                                                          

                    During this pat-down, and before Butler located the pocket knife, Butler  



                                                                                                                           

encountered an object in McGuire's pocket that felt like a marijuana pipe.  Butler asked  



                                                                                                                                

McGuire if the object was, in fact, a marijuana pipe.  McGuire admitted that it was.  At  



                                                                                                                              

that point, Butler reached into McGuire's pocket and removed the pipe.  Butler saw that  



                                                                                                                         

the pipe contained unsmoked marijuana in its bowl.   After removing this pipe, Butler  



                                                                               

removed the pocket knife from McGuire's pocket.  



                                                                                                                                     

                    Butler then conducted a pat-down search of McGuire's remaining pockets.  



                                                                                                                                 

During this  continued search,  Butler felt an object that appeared to be a syringe in  



                                                                                                                              

McGuire's back pocket.  Before removing this syringe, Butler asked McGuire if he had  



                                                                                                                                  

any other drugs or drug paraphernalia on his person.  McGuire admitted that he had a  



                                                              - 3 -                                                          2603
  


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

                                                                                                                               

plastic container of marijuana in one of his  other  pockets.   Butler then removed the  



                                                                        

syringe and the plastic container of marijuana.  



                                                                                                                         

                    When Butler asked McGuire what the syringe was doing in his back pocket,  



                                                                                                                             

McGuire replied that he "like[d] to have some fun from time to time", and that he used  



                                                                                

the syringe to inject himself with liquified Dilaudid.  



                                                                                                                             

                    Butler then engaged McGuire in further conversation about his drug use,  



                                                                                                                              

and  he asked McGuire whether there were any other drugs in his car.   McGuire told  



                                                                                                                             

Butler that there was a jar containing one ounce of marijuana behind the driver's seat,  



                                                                                                                     

and that the car also contained another half-ounce of marijuana in individual packages,  



                                                          

which McGuire was planning to sell.  



                                                                                                                   

                    At this point, McGuire's car was seized as evidence, and it was transported  



                                                                                                                               

to a secure police facility.   Butler later  applied for a search warrant (to authorize the  



                                                                                                                       

police to conduct a more thorough search than would otherwise be authorized pursuant  



                                                                                                                               

to an impoundment).  The warrant was issued, and the ensuing search of McGuire's car  



                                                                                                                               

yielded the one and a half ounces of marijuana that McGuire had described, plus one pill  



                       

of morphine.  



                                                                                                                         

                    The police also obtained a warrant to seize and search McGuire's mobile  



                                                                                                                                 

phones.  These phones contained text messages that revealed McGuire's involvement in  



                           

marijuana sales.  



                                                                                                                         

                    Based on this episode,  McGuire was indicted on two counts of fourth- 



                                                                                                                               

degree controlled substance misconduct - one count for possessing morphine, and the  



                                                                                                                                     

other count for possessing one ounce or more of marijuana with intent to distribute it.  



                                                                                                                    

By  information,  the  State  added  a  misdemeanor  charge  of  sixth-degree  controlled  



                                                                                       

substance misconduct (simple possession of marijuana).  



                                                              - 4 -                                                          2603
  


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

                 The litigation of McGuire's suppression motion                                                      



                                Following his indictment, McGuire asked the superior court                                                                                          to suppress   



most of the evidence against him.                                                McGuire alleged that Officer Butler violated his rights                                                            



under the Fourth                             Amendment when,                                    after Butler retrieved the pocket knife,                                                         Butler  



continued to pat down McGuire's other pockets.                                                                              McGuire also alleged that Officer                                  



Butler violated his Fifth Amendment rights by subjecting him to custodial interrogation                                                                                           



                                                                                                                                                               1  

without giving him the warnings required by                                                               Miranda v. Arizona                                .    



                                The superior court upheld the pat-down search, but the court agreed with  

                                                                                                                                                                                                      



McGuire that, by the latter stages of the encounter, McGuire was in custody for Miranda  

                                                                                                                                                                                           



purposes.   The court therefore suppressed some  of  McGuire's statements to Butler.  

                                                                                                                                                                                                                  



However, the court ruled that the remaining evidence was admissible  -  i.e., all the  

                                                                                                                                                                                                         



physical evidence discovered during the pat-down of McGuire's pockets, plus the self- 

                                                                                                                                                                                                      



incriminatory statements that McGuire made during the earlier portions of the encounter.  

                                                                                                                                                                                                                  



                                Having upheld the admissibility of this evidence, the superior court then  

                                                                                                                                                                                                      



upheld the search warrants for McGuire's vehicle and his mobile phones.  

                                                                                                                                                                                  



                                Following a jury trial, McGuire was convicted of all three drug charges.  

                                                                                                                                                                                                                  



                Summary of our analysis  

                                                         



                                The State argues that Officer Butler's search of McGuire's pockets was a  

                                                                                                                                                                                                              



permissible pat-down search for weapons during an investigative stop, as authorized by  

                                                                                                                                                                                                           

                                    2    For the reasons we are about to explain, we reject this contention.  

Terry v. Ohio.  

                                                                                                                                                                                                         



        1       384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
                                                                        



        2  

                                                                                                                                      

                392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
  



                                                                                                   - 5 -                                                                                               2603
  


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

                        McGuire argues that Officer Butler's pat-down of his pockets was strictly                                               



                                                                                                                                           3  

prohibited by the United States Supreme Court's decision in                                                Knowles v. Iowa               .            

                                                                                                                                              For the  



                                                                                                                         

reasons explained in this opinion, we reject this contention as well.  



                                                                                                                                                      

                        We instead conclude that McGuire's case presents a situation that is not  



                                                                                                                                                 

addressed in Knowles :  an instance where, during a routine traffic stop, (1) the police  



                                                                                                                                                  

discover probable cause to arrest  the motorist for another offense, and (2) this other  



                                                                                                                                                        

offense is the type of crime where it is reasonable to suspect that the motorist may be  



                                                                                       

carrying evidence of the crime on their person.  



                                                                                                                                                      

                        The question we must answer is this:  When, as in McGuire's  case, the  



                                                                                                                                                      

motorist's other offense is within the category of offenses where the officer has  the  



                                                                                                                                               

discretion to issue a summons rather than make an arrest, and when the officer decides  



                                                                                                                                                          

to issue a summons rather than make an arrest, may the officer nevertheless conduct a  



                                                                                                                                                 

pat-down search of the motorist's outer clothing for evidence of the other crime before  



                                                           

allowing the motorist to depart?  



                                                                                                                                                         

                        For the reasons explained in this opinion, we conclude that the answer is  



             

"yes".  



                                                                                                                                   

            The  State's  argument  that  Officer  Butler  could  continue  to  search  

                                                                                                                                

            McGuire's pockets because the officer reasonably believed that McGuire  

                                          

            was armed and dangerous  



                                                                                                                                                     

                        On appeal, the State argues that Officer Butler had reason to believe that  



                                                                                                                                                         

McGuire was armed and dangerous, and thus the officer was authorized to search all of  



                                                             

McGuire's pockets for weapons.  



      3     525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998).                                           



                                                                          - 6 -                                                                     2603
  


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

                                                               We have reviewed the record, and it does not support the State's contention.                                                                                                                                                                                                                                                                             



Officer Butler had no articulable reason to believe that McGuire was dangerous.                                                                                                                                                                                                                                                                                                                  As  



Butler conceded at the evidentiary hearing in the superior court,                                                                                                                                                                                                                                                      McGuire was calm                                                    



during the entire encounter, and he did nothing aggressive or antagonistic - nothing to                                                                                                                                                                                                                                                                                                                  



make Butler suspect that he was dangerous.                                                                                                                                                                     Moreover, Butler continued his pat-down                                                                                                                 



 search of McGuire's pockets even after he had taken possession of McGuire's knife -                                                                                                                                                                                                                                                                                                                    



that is, when Butler had no articulable reason to believe that McGuire was armed.                                                                                                                                                                                                                                                                                                              



                                                               To justify a continued pat-down search of McGuire's pockets under the                                                                                                                                                                                                                                                                



rationale of officer safety,                                                                                                   the State had to show                                                                                           that the circumstances of Butler's                                                                                            



encounter with McGuire gave Butler                                                                                                                                               reason to believe that McGuire was armed and                                                                                                                                                                    



dangerous (as that phrase is defined for purposes of                                                                                                                                                                                          Terry v. Ohio                                                     ).   In other words, the                                                            



circumstances must have disclosed (1) a significant possibility that McGuire might want                                                                                                                                                                                                                                                                                                      



to harm Butler or his backup officer, and (2) a significant possibility that McGuire was                                                                                                                                                                                                                                                                                                         



 still carrying something in his pockets that McGuire could use to inflict bodily harm on                                                                                                                                                                                                                                                                                                              



the   officers   -   something   other   than   the   pocket   knife   that   McGuire   had   already  

voluntarily disclosed, and that Butler had already secured.                                                                                                                                                                                                                    4  



                                                               The State argues that this foundation was established because McGuire lied  

                                                                                                                                                                                                                                                                                                                                                                                                    



twice to Officer Butler.  (McGuire lied when he told Butler that his vehicle insurance was  

                                                                                                                                                                                                                                                                                                                                                                                                 



currently in force, and then he lied when he told Butler that there were no other objects  

                                                                                                                                                                                                                                                                                                                                                                                 



in his pockets besides the pocket knife.)  Based on these two lies,  plus  the fact that  

                                                                                                                                                                                                                                                                                                                                                                                                



McGuire was carrying a pocket knife and a marijuana pipe, the State argues that Butler  

                                                                                                                                                                                                                                                                                                                                                                                      



                4              See  Wayne R.LaFave,                                                                           Search and Seizure: A Treatise on the Fourth Amendment                                                                                                                                                                                                             (5th  



ed. 2012),  9.6(a), Vol. 4, pp. 855-862 (discussing the required justification for pat-down                                                                                                                                                                                                                                                                              

 searches when the investigatory stop is not based on suspicion of an inherently dangerous                                                                                                                                                                                                                                                                            

crime);W.Ringle,                                                                 Searches and Seizures,Arrestsand Confessions                                                                                                                                                                          (2nded.1983),13.6(a),                                                

p.   13-42.2.   



                                                                                                                                                                                                - 7 -                                                                                                                                                                                            2603
  


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

could reasonably conclude that there was a                                                        substantial possibility that McGuire was                                        



armed and dangerous.                               



                             We disagree.                  McGuire voluntarily disclosed his possession of the pocket                                                        



knife as soon as he was asked, and he readily consented to having Officer Butler take                                                                                             



control of the knife for the duration of their encounter.                                                             We note that the legislature has                              



singled out pocket knives as one of the weapons                                                              that a person need                         not   immediately  

                                                                                                                                                                             5   And  

disclose to a law enforcement officer (absent a request) during a police contact.                                                                                                



the State offers nothing to support its assertion that a person's possession of a marijuana  

                                                                                                                                                                     



pipe constitutes an affirmative indication that the person is dangerous.  

                                                                                                                                                        



                             The State also notes that McGuire and the two other people at the scene  

                                                                                                                                                                               



(McGuire's passenger and McGuire's brother-in-law) outnumbered the officers at the  

                                                                                                                                                                                    



scene three-to-two.   But as we noted earlier, Officer Butler testified that McGuire was  

                                                                                                                                                                                  



calm during the entire encounter, and that McGuire did not say or do anything defensive  

                                                                                                                                                                       



or aggressive.  

                                



                             With regard to the presence of McGuire's brother-in-law,  we note that  

                                                                                                                                                                                   



Officer Butler explicitly  allowed McGuire to call his brother-in-law to come give him  

                                                                                                                                                                                   



a ride, even though this would necessarily mean that there would be at least three people  

                                                                                                                                                                             



at the scene who were aligned with McGuire's interests (McGuire himself, his passenger,  

                                                                                                                                                                     



and McGuire's brother-in-law).  Moreover, the backup officer testified that McGuire's  

                                                                                                                                                                    



brother-in-law readily complied with the officer's directive to remain in his vehicle until  

                                                                                                                                                                                  



the officers' encounter with McGuire was ended.  

                                                                                                            



                             And with regard to the activities of McGuire's passenger,  the record is  

                                                                                                                                                                                        



completely silent,  other than the fact that this passenger complied with the  officers'  

                                                                                                                                                                        



directive to get out of McGuire's car.  Presumably, either Officer Butler or the backup  

                                                                                                                                                                            



       5      See  AS 11.61.220(a)(1)(A).                                 



                                                                                         - 8 -                                                                                    2603
  


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

                                                                                                                    

officer (or both of them) would have said something during their testimony if McGuire's  



                                                                                                                                 

passenger had done anything to arouse their suspicions or to heighten their sense of  



             

danger.  



                                                                                                                            

                     In short, we reject the State's contention that the facts known to the police  



                                                                                                                              

justified a continued pat-down search of McGuire's pockets under  Terry v. Ohio after  



                                                                                                   

Officer Butler secured the pocket knife and the marijuana pipe.  



                                                                                                                       

           Why we  nevertheless conclude that it was lawful for Officer Butler to  

                                                                                                               

           conduct a pat-down of McGuire's other pockets after the officer secured  

                            

           the pocket knife  



                                                                                                                                  

                     McGuire concedes that, because he gave permission for Officer Butler to  



                                                                                                                            

secure his pocket knife, it was lawful for Butler to pat down McGuire's pocket to locate  



                                                                                                                          

and retrieve the knife.  And McGuire does not challenge Butler's discovery and seizure  



                                                                                                                           

of the marijuana pipe, which occurred while Butler was conducting the pat-down search  



                       

for the knife.  



                                                                                                                                 

                     However,  McGuire  challenges  Butler's  continued  pat-down  search  of  



                                                                                                                          

McGuire's other pockets - the pat-down search that Butler conducted after he located  



                                                                              

and secured McGuire's marijuana pipe and knife.  



                                                                                                                               

                     McGuire  relies on Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142  



                                                                                                                                  

L.Ed.2d 492 (1998), a case where the United States Supreme Court limited the scope of  



                                                                                                                      

a police officer's authority to search a motorist during a routine traffic stop.  In Knowles,  



                                                                                                                         

the Supreme Court held that even when an officer has probable cause to arrest a motorist  



                                                                                                                     

for violating the traffic laws, the officer cannot conduct a full search of the motorist's  



                                                                                                                         

person - i.e., cannot conduct a "search incident to arrest" - unless the officer actually  



                                 

arrests the motorist.  



                                                               - 9 -                                                          2603
  


----------------------- Page 10-----------------------

                            The Supreme Court explained that, in instances where the motorist's only                                                                      



 offense is a violation of the traffic laws, and where the officer simply issues a citation to                                                                                



the motorist, the encounter is more akin to an investigative stop -                                                                    i.e., a brief detention        



                                                                               6  

 of limited scope for a limited purpose.                                                                                                                

                                                                                    This being so, the two traditional justifications  



                                                                                                                                                             

 for a full  search of an arrestee's person do not apply.                                                               There will be no "extended  



                                                                                                                                                                     

 exposure" between the officer and the motorist (as would be the case when an officer  



                                                                                                                                                                               

 actually  takes  a  person  into  custody  and  transports  them  to  a  police  station  or  a  

           7      And  for  most traffic infractions,  there will be no reason to believe that the  

jail).                                                                                                                                                                      

motorist is carrying evidence of the infraction on their person. 8  

                                                                                                                                    



                            For these reasons, the Supreme Court held in Knowles  that the officer's  

                                                                                                                                                                 



 authority to search a motorist's person during a routine traffic stop is limited to the pat- 

                                                                                                                                                                          

                                                                                                                  9  In other words, the officer can  

 down searches for weapons authorized by Terry v. Ohio.  

                                                                                                                                                                           



pat down the motorist's clothing for weapons if the officer has a reasonable suspicion  

                                                                                                                                                               



that the motorist is both armed and dangerous,  but the officer cannot pat down the  

                                                                                                                                                                           

motorist for evidence. 10  

                                                    



       6      Knowles ,  525 U                .S.  at   117,   119 S          .Ct.  at  488.   



       7      Ibid .   



       8      Id.,  525 U         .S.  at   118-19,   119  S.Ct.  at  488.    



       9      Ibid.  



        10  

                                                                                                                                                                           

              Terry, 392 U.S. at 21, 27, 30-31; 88 S.Ct. at 1879, 1883, 1884-85; Free v. State, 614  

                                                                                                                                                                    

P.2d 1374, 1378 (Alaska 1980). See also Saepharn v. State, 355 P.3d 592, 595-96 (Alaska  

                           

App. 2015):  



                                                                                                                                                                    

              "In [Minnesota  v.] Dickerson , [508 U.S. 366,  113 S.Ct. 2130,  124 L.Ed.2d 334  

                                                                                                                                                                          

       (1993)], 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  

                                                                                                                                                        (continued...)  



                                                                                    - 10 -                                                                                2603
  


----------------------- Page 11-----------------------

                                                          Based on                                Knowles, McGuire argues that Butler acted unlawfully when, after                                                                                                                                                                                                



retrieving the pocket knife from McGuire's right-front pants pocket, Butler continued to                                                                                                                                                                                                                                                                                    



 search McGuire's other pockets.                                                                                                                



                                                          But   the   facts   of   Knowles   are   materially   different   from   the   facts   of  



McGuire's case.                                                          Knowles  involved a situation where the motorist's only known crime                                                                                                                                                                                                                



was a traffic offense, and where the officer had no reason to believe that the motorist was                                                                                                                                                                                                                                                                         



carrying evidence of a crime on his person.                                                                                                                                             McGuire's traffic stop may have started out                                                                                                                                    



as the same kind of "routine" traffic stop, in the sense that, initially, Officer Butler only                                                                                                                                                                                                                                                                     



had probable cause to believe that McGuire had violated                                                                                                                                                                                                    the   traffic laws.                                                        But while   



Butler was retrieving McGuire's pocket knife, he lawfully discovered the marijuana pipe                                                                                                                                                                                                                                                                            



(containing unsmoked marijuana) in McGuire's pocket.                                                                                                                                                                                             



                                                          McGuire's possession of marijuana was a separate offense under Alaska's                                                                                                                                                                                                                



drug laws at the time (                                                                     i.e., before the voters of Alaska legalized the possession of small                                                                                                                                                                                               



amounts of marijuana for personal use).                                                                                                                                    And the discovery of the pipe and the marijuana                                                                                                                



gave Butler an articulable reason to believe that McGuire might be carrying additional                                                                                                                                                                                                                                                     



evidence of a drug offense.                                                                                             



                                                          Nevertheless, even though Butler's discovery of the marijuana pipe and the                                                                                                                                                                                                                                     



unsmoked marijuana gave Butler probable cause to arrest McGuire for possession of                                                                                                                                                                                                                                                                                         



marijuana, Butler did not arrest McGuire.                                                                                                                                               Indeed,   even   after finding the marijuana,                                                                                                 



Butler repeatedly                                                             assured   McGuire that he was                                                                                                            not   going to arrest him.                                                                                And Butler   



continued to assure McGuire that he would be permitted to leave, even after McGuire                                                                                                                                                                                                                                                          



               10            (...continued)  



               officer safety, and the scope of this search must be limited to '[what] is necessary for  

                                                                                                                                                                                                                                                                                                                                                          

               the discovery of weapons'.  Id., 508 U.S. at 373, 113 S.Ct. at 2136.  It is unlawful for  

                                                                                                                                                                                                                                                                                                                                                          

               the  police  to  expand the scope of the pat-down beyond this limit in an effort to  

                                                                                                                                                                                                                                                                                                                                                             

               discover evidence of a crime.  Ibid."  

                                                                                                                                                                    



                                                                                                                                                                               -  11 -                                                                                                                                                                              2603
  


----------------------- Page 12-----------------------

admitted that his car contained larger amounts of marijuana that were intended for sale.                                                                                                                                  



True to his word, Butler released McGuire at the end of their encounter (after writing                                                                                                                 



him a summons).                               



                                  Thus, McGuire's case presents the following facts:                                                                                (1) During a routine             



traffic stop, a police officer discovers probable cause to arrest the motorist for                                                                                                                 another  



offense, and (2) this other offense is the type of crime where it is reasonable to suspect                                                                                                           



that the motorist may be carrying evidence of the crime on their person,                                                                                                                 but   (3)   the  



offense is within the category of offenses where the officer has the discretion to issue a                                                                                                                           

                                                                                            11 and (4) the officer decides to issue a summons to  

summons rather than make an arrest,                                                                                                                                                                                



the motorist rather than arrest them.  

                                                                                             



                                  The question we must decide is this:  Under these facts, does the officer  

                                                                                                                                                                                                       



have the authority to pat down the motorist's outer clothing for evidence of this other  

                                                                                                                                                                                                          



crime before issuing the summons and allowing the motorist to leave?  

                                                                                                                                                                               



                                  Courts from other jurisdictions have struggled with this question, because  

                                                                                                                                                                                                    



this  fact  situation falls within a grey area left in the wake of the Supreme Court's  

                                                                                                                                                                                                    



decision in Knowles.   (See the lengthy discussion of this issue in Wayne R. LaFave,  

                                                                                                                                                                                                  



Search and Seizure:  A Treatise on the Fourth Amendment  (5th ed. 2012),  5.2(h),  

                                                                                                                                                                                                    



Vol. 3, pp. 171-79.)  

                                                    



                                 Knowles does not hold that full-blown searches of a motorist's person are  

                                                                                                                                                                                                                



never  authorized unless the motorist is subjected to a custodial arrest.                                                                                                                 Rather,  the  

                                                                                                                                                                                                               



Knowles decision is more limited:  the Supreme Court declared that a full-blown search  

                                                                                                                                                                                                        



of a motorist's person is not authorized when the motorist's only known crime is a traffic  

                                                                                                                                                                                                        



offense, and when there is no reason to believe that a search of the motorist's person will  

                                                                                                                                                                                                               



reveal evidence of this traffic offense.  

                                                                                                 



         11      See  AS 12.25.180(a).                               



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----------------------- Page 13-----------------------

                                                                                                                                 

                     Thus, the Knowles decision does not provide a direct answer to cases like  



                                                                                                                                 

McGuire's - cases where a routine traffic stop yields probable cause to support  the  



                                                                                                                                 

motorist's arrest for another  offense,  and where there is reason to believe that the  



                                                                                                                             

motorist may be carrying evidence of this other offense on their person, but the police  



                                                                                                                                    

officer still wishes to end the encounter by issuing a summons rather than making a  



                           

custodial arrest.  



                                                                                                                           

                     We find ourselves in agreement with the approach taken by  the Virginia  



                                                                                                                                  

Supreme Court in Lovelace v. Commonwealth, 522 S.E.2d 856 (Va. 1999), where the  



                                                                                                                        

court held that, in these circumstances, a police officer can lawfully engage in measures  



                                                                        

short of a full-blown search incident to arrest:  



                       

                                                                                                              

                               [Knowles  holds  that]  the  nature  and  duration  of  

                                                                                                 

                     [a traffic stop] are significantly different and less threatening  

                                                                                                            

                     than in the case of an officer effecting a custodial arrest, [so]  

                                                                                                            

                     the  rationales  justifying  a  full  field-type  search  are  not  

                                                                                                     

                     sufficient to authorize such a search incident to the issuance  

                                                                                                               

                     of a citation.  [But] when a police officer issues a citation or  

                                                                                                            

                     summons  in  lieu  of  a  custodial  arrest,  the  officer  can  

                                                                                                           

                     nevertheless impose some further intrusions, consistent with  

                                                                                                             

                     the Fourth Amendment, if either historical rationale for  the  

                                                                                                             

                     "search incident to arrest" exception is present [so long as]  

                                                                                                               

                     the  scope  of  these  further  intrusions  is  limited  to  what  is  

                                                                                                               

                     necessary to answer the concerns raised by the presence of  

                                                                                                  

                     either  historical  rationale.              In  other  words,  an  encounter  

                                                                                                                

                     between a police officer and an individual that is similar to a  

                                                                                                               

                     routine traffic stop and results in the issuance of a citation or  

                                                                                                        

                     summons may involve some degree of danger to the officer  

                                                                                                               

                     or some need to preserve or discover evidence sufficient to  

                                                                                                 

                     warrant  an  additional intrusion,  but  it  will not  necessarily  

                                                         

                    justify a full field-type search.  



                                       

Lovelace, 522 S.E.2d at 859.  



                                                               -  13 -                                                         2603
  


----------------------- Page 14-----------------------

                                                                               McGuire's case does not require us to delineate the outer limits of this                                                                                                                                                                                                                                                                                                                                                     



authority to search or to conduct other "intrusions", because McGuire's case involves                                                                                                                                                                                                                                                                                                                                                                                        



only the pat-down search of McGuire's pockets.                                                                                                                                                                                                                                                    



                                                                               We hold that, because the officer had probable cause to arrest McGuire for                                                                                                                                                                                                                                                                                                                                                     



a drug offense, and because the officer had reason to believe that McGuire might have                                                                                                                                                                                                                                                                                                                                                                                                              



other evidence of that offense in his clothing, the officer was authorized to conduct a pat-                                                                                                                                                                                                                                                                                                                                                                                                                



down search of McGuire's pockets - even though the officer had already decided that                                                                                                                                                                                                                                                                                                                                                                                                                         



he was going to issue a summons to McGuire and then allow him to leave.                                                                                                                                                                                                                                                                                                                                                                                   



                                         Conclusion  



                                                                                The judgement of the superior court is AFFIRMED.  

                                                                                                                                                                                                                                                                                                                                                                                                           



                                                                                                                                                                                                                                                 -  14 -                                                                                                                                                                                                                                                 2603
  

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