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Simmons v. State (8/17/2018) ap-2613

Simmons v. State (8/17/2018) ap-2613

                                                                                        NOTICE
  

               The text           of   this opinion can be corrected before the opinion is published in the                                       

               Pacific Reporter                 .   Readers are encouraged to bring typographical or other formal                                         

               errors to the attention of the Clerk of the Appellate Courts:    



                                                         303 K Street, Anchorage, Alaska  99501  

                                                                           Fax:  (907) 264-0878  

                                                               E-mail:  corrections@ akcourts.us  



                                IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                



MIKOS  CASSADINE  SIMMONS,  

                                                                                                                                                                

                                                                                                                  Court of Appeals No. A-12147  

                                                                                                                                                                               

                                                            Appellant,                                          Trial Court No. 3AN-12-654 CR  



                                             v.  

                                                                                                                                O  P  I  N  I  O  N  

                                                                                                                                                                 

STATE  OF  ALASKA,  



                                                            Appellee.                                              No. 2613 - August  17, 2018  

                                                                                                                                                                        



                              Appeal   from  the   Superior  Court,  Third  Judicial                                                              District,  

                                                                                                                                                

                              Anchorage, Jack W. Smith, Judge.  

                                                                                         



                              Appearances:                          Vikram   N.                  Chaobal,   Anchorage,                             for   the  

                                                                                                                                                           

                              Appellant.   June  Stein, Assistant  Attorney  General, Office  of  

                                                                                                                                                               

                              Criminal Appeals, Anchorage,  and Jahna Lindemuth,  Attorney  

                                                                                                                                                 

                              General, Juneau, for the Appellee.  

                                                                                                        



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

                                                                                                                                          

                              Judges.  

                                               



                              Judge MANNHEIMER.  

                                            



                              On   the   evening of                        January   21,   2012,   Mikos   Cassadine   Simmons   was  



driving in Anchorage with his                                         girlfriend and their child.                                An Anchorage police officer                       



stopped Simmons's vehicle because its taillights were darkened and its license plate was                                                                                                 



partially obscured by snow.                     


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

                                                                                                                   

                    The officer who made the stop, Chad Schaeffer, asked to see Simmons's  



                                                                                                                               

driver's license.  Simmons replied that he did not have his driver's license with him, but  



                                                                                                                              

he told Officer Schaeffer his name, his date of birth, and his social security number, and  



                                                                                                                               

he gave the officer his voter registration card.  After Schaeffer returned to his patrol car  



                                                                                                                         

and verified all of this information, he prepared to issue a citation to Simmons for driving  



                                                                     

without his driver's license in his possession.  



                                                                                                                   

                    However, while Officer Schaeffer was on the radio confirming Simmons's  



                                                                                                                    

identity, a patrol sergeant, Jack Carson, informed him that Simmons was a dangerous  



                                                                                                                         

person, and that he was "associated" with drugs and guns.  Sergeant Carson told Officer  



                                                                                                                                

Schaeffer not  to  return to Simmons's car until Carson could arrive on the scene to  



                           

provide backup.  



                                                                                                                       

                    Schaeffer filled out the traffic citation, and then he waited for his sergeant  



                                                                                                                              

to arrive.   Several minutes later, Sergeant Carson arrived on the scene.   Carson and  



                                                                                                                           

Schaeffer walked up to Simmons's car.  Carson greeted Simmons by name, and he asked  



                                                                                                                        

if he could search Simmons's vehicle.  Simmons said no.  Sergeant Carson then directed  



                                                                                                                            

Simmons to get out of his vehicle and submit to a pat-down search for weapons.  



                                                                                                                        

                    While  Sergeant  Carson  was  conducting  this  pat-down  search,  Officer  



                                                                                                                              

Schaeffer positioned himself alongside Simmons's vehicle so that he could keep an eye  



                                                                                                                      

on Simmons's girlfriend.  According to Schaeffer's later testimony, he shined a flashlight  



                                                                                                                          

into the vehicle and, on the floor of the vehicle, he observed a sandwich-sized plastic  



                                                                  

baggie with other smaller baggies inside it.  



                                                                                                                     

                    In the meantime, Sergeant Carson had completed hispat-down of Simmons,  



                                                                                                                                 

and he found no weapons.  Nevertheless, Carson then directed Simmons's girlfriend to  



                                                                                                                               

get out of the car, so that the officers could search the entire passenger compartment for  



                                                                                                                            

weapons.  When Sergeant Carson looked inside Simmons's car, he observed the same  



                                                                                                                     

baggies that Officer Schaeffer had seen.   Carson surmised that the baggies contained  



                                                              - 2 -                                                          2613
  


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

heroin, given the appearance of the substance                                                                                                                                                                                                                                                                   in   the   baggies and the way they were                                                                                                                                                                                        



packaged.   The officers then arrested Simmons, and the substance was later confirmed                                                                                                                                                                                                                                                                                                                                                                                                                           



to be heroin.                      



                                                                                        Simmons's attorney moved to suppress the evidence found in Simmons's                                                                                                                                                                                                                                                                                                                                             



 car, alleging that the police had improperly extended the traffic stop.                                                                                                                                                                                                                                                                                                                                                                              The superior court                                                                        



 denied this suppression motion, and Simmons was ultimately convicted of fourth-degree                                                                                                                                                                                                                                                                                                                                                                                                    



 controlled substance misconduct (possession of heroin), former AS 11.71.040(a)(3)(A)                                                                                                                                                                                                                                                                                                                                                               



 (as of 2012).                                                                         



                                                                                        In this appeal, Simmons renews his argument that the police unlawfully                                                                                                                                                                                                                                                                                                                                               



 extended the traffic stop, and that the evidence pertaining to the bag of heroin should                                                                                                                                                                                                                                                                                                                                                                                                                                             



have been suppressed.                                                                                                                                For the reasons explained in this opinion, we agree.                                                                                                                                                                                                                                                                                                  



                                             The constitutional limits on a routine traffic stop, and why we conclude                                                                                                                                                                                                                                                                                                                                                      

                                            that those limits were violated in Simmons's case                                                                                                                                                                                                                                                       



                                                                                        This Court has held that police officers conducting a traffic stop have the                                                                                                                                                                                                                                                                                                                                                                                           



 authority to order the driver to get out of the vehicle if the officer's action is reasonably                                                                                                                                                                                                                                                                                                                                                                                                              



related to concerns for the officer's safety while the officer is interacting with the driver                                                                                                                                                                                                                                                                                                                                                                                                                                              



 during the stop.                                                                                    See Erickson v. State                                                                                                                      , 141 P.3d 356, 359 (Alaska App. 2006) (upholding                                                                                                                                                                                                           



 an officer's authority to order a passenger to get out                                                                                                                                                                                                                                                                                                       of   the car based on these same                                                                                                                                                 



                                                                        1  

 concerns).     



                       1                    Compare  Pennsylvania v.Mimms                                                                                                                                                                                  ,434 U.S.106,98 S.Ct. 330, 54 L.Ed.2d 331 (1977),                                                                                                                                                                                                                        



holding that police officers have a broader authority under the United States Constitution to                                                                                                                                                                                                                                                                                                                                                                                                                                                                        

 order a driver to get out of the vehicle, regardless of the specific circumstances. We have not                                                                                                                                                                                                                                                                                                                                                                                                                                                                

yet decided whether, under the Alaska Constitution, police officers conducting a traffic stop                                                                                                                                                                                                                                                                                                                                                                                                                                                            

have this same broad authority.                                                                                                                                                                



                                                                                                                                                                                                                                                                             - 3 -                                                                                                                                                                                                                                                                        2613
  


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

                                                                                                                           

                    But as the United States Supreme Court emphasized in Rodriguez v. United  



                                                                                                                                

States, __ U.S. __, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015), routine traffic stops are  



                                                                                                                                 

analogous to the kind of investigative stops authorized by Terry v. Ohio, 392 U.S. 1, 88  



                                                                                                                                  

S.Ct. 1868, 20 L.Ed.2d 889 (1968).  That is, in a routine traffic stop, a police officer is  



                                                                                              

authorized to conduct a limited seizure for a limited purpose.  



                                                                                                                                  

                    Because the officer's authority to detain a motorist during a traffic stop is  



                                                                                                                                 

limited by the purpose of the stop,  that authority lasts only for the time it takes,  or  



                                                                                                                                

reasonably should take, for the officer to accomplish the purpose or "mission" of the  



                                                                                                                               

traffic stop - i.e., the time needed for the officer to address the traffic violation that  



                                                                                                                               

warranted the stop, and to attend to any related traffic safety concerns.  Rodriguez, 135  



                                                                                                                           

S.Ct. at 1614-15.  "Authority for the seizure thus ends when tasks related to the traffic  



                                                                                                                             

infraction are - or reasonably should have been - completed."  Rodriguez, 135 S.Ct.  



               

at 1614.  



                                                                                                                                

                    Thus, in Rodriguez, the Supreme Court held that it was unlawful for the  



                                                                                                                            

police to require a driver to wait until a drug-sniffing dog could be brought to the scene  



                                                                                                                                

of the traffic stop, when the police had no reasonable suspicion of a drug violation.  Id.  



                                                                                                                             

at 1616.  Compare this Court's decision in Brown v. State, 182 P.3d 624 (Alaska App.  



                                                                                                                         

2008),  where  we  questioned  whether,  under  the  Alaska  Constitution,  an  officer  



                                                                                                                                 

conducting a routine traffic stop is even allowed to  ask  the driver for permission to  



                                                                                                                        

conduct a search if the search is unrelated to the basis for the stop, and if the officer's  



                                                                                                                              

request is not otherwise supported by a reasonable suspicion of criminality.  Id.  at 626,  



               

633-34.  



                                                                                                                       

                    In  Simmons's  case,  the  officer  conducting  the  traffic  stop  (Officer  



                                                                                                                              

Schaeffer) was apparently ready to issue a citation and allow Simmons to leave, thus  



                                                                                                                             

concluding the traffic stop.  However, Simmons's case became more complicated when  



                                                               - 4 -                                                          2613
  


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

 Schaeffer's   supervisor   told   him   to   wait   for   backup   to   arrive,   due   to   alleged   safety  



concerns.    



                                   We   need   not   decide   whether   these   safety   concerns   were   sufficiently  



substantial to justify Officer Schaeffer's decision to wait for backup before serving the                                                                                                                               



citation on Simmons.                                     Even if we assume that Schaeffer was justified in prolonging the                                                                                               



traffic stop for this reason,                                           there was no justification for what ensued when Sergeant                                                                         



Carson arrived on the scene:                                                no justification for ordering Simmons to get out of his car                                                                                 



and submit to a search for weapons.                                                             



                                   The State contends that these additional intrusions on Simmons's privacy                                                                                                  



were   justified by concerns for officer safety.                                                                          But as the Supreme Court clarified                                                              in  



Rodriguez, actions taken in the name of protecting officer safety must stem "from the                                                                                                                                   

                                                                                          2     Just as the federal constitution prohibits the police  

mission of the [traffic] stop itself."                                                                                                                                                                           



from  engaging in  "detours  from  that  mission",  it  likewise  prohibits  the  police  from  

                                                                                                                                                                                                                  

                                                                                                                                                                                                 3  But that is  

engaging in "safety precautions taken in order to facilitate such detours."  

                                                                                                                                                                                                                            



what happened in Simmons's case.  

                                                                                             



                                   According to  the  record  in  this  case,  Simmons  was  cooperative  in  his  

                                                                                                                                                                                                                        



dealings with Officer Schaeffer, and Simmons gave no indication that he posed a danger  

                                                                                                                                                                                                              



to the officer.  And by the time Sergeant Carson arrived on the scene, the purpose of the  

                                                                                                                                                                                                                        



traffic stop was all but accomplished: Officer Schaeffer had verified Simmons's identity,  

                                                                                                                                                                                                            



had written the citation, and was simply waiting to deliver the citation to Simmons - at  

                                                                                                                                                                                                                            



which time, Simmons would be free to leave.  

                                                                                                                        



                                   These circumstances do not support the conclusion that the police searched  

                                                                                                                                                                                                          



 Simmons for weapons so that they  could protect themselves during the traffic stop.  

                                                                                                                                                                                                                                   



         2       Rodriguez , 135 S.Ct. at 1616.                              



         3       Ibid.  



                                                                                                           - 5 -                                                                                                      2613
  


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

Rather, the police artificially extended the traffic stop so that they could search Simmons                                                                                                                                                                                                                      



                                                                                                                                                                                                                                                  4  

for weapons.                                         Neither  Rodriguez  nor  Erickson  authorize this.                                                                                                                                                



                           Conclusion  



                                                                                                                                                                                                                                                                                                                                                      

                                                     The superior court should  have granted Simmons's suppression motion.  



                                                                                                                                                                                                                                                                   

Accordingly, the judgement of the superior court is REVERSED.  



             4             Compare  State v. Kjolsrud                                                                        , 371 P.3d 647, 651 (Ariz. App. 2016), where the court held                                                                                                                                             



that a police officer acted unlawfully when, at the very end of a traffic stop, instead of simply                                                                                                                                                                                                                          

delivering the citation to the driver, the officer ordered the driver to get out of the vehicle so                                                                                                                                                                                                                                          

that the officer could engage the driver in further questioning.                                                                                                                                                                       



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