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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State of Alaska v Joubert (04/13/2001) sp-5387

State of Alaska v Joubert (04/13/2001) sp-5387

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


STATE OF ALASKA,              )    Supreme Court No. S-9129
                              )    
          Petitioner,         )    Court of Appeals No. A-6540
                              )    Superior Court No.       
     v.                       )    3AN-S95-7468 CR     
                              )
HURIST JOUBERT,               )    O P I N I O N            
                              )
          Respondent.         )    [No. 5387 - April 13, 2001]        
______________________________)



          Petition for Hearing from the Court of Appeals
of the State of Alaska, on Appeal from the Superior Court of the
State of Alaska, Third Judicial District, Anchorage, 
                    Milton M. Souter, Judge. 


          Appearances: Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Petitioner.  Maria Bahr and Michael Dieni, Assistant Public
Defenders, and Barbara K. Brink, Public Defender, Anchorage, for
Respondent.  


          Before: Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.  


          EASTAUGH, Justice.


I.   INTRODUCTION
          Under Alaska law, when an arrest is for an offense of
which evidence could be concealed on a person, a police officer is
permitted to conduct a warrantless search of the arrestee for
evidence of the crime at the time of arrest.  When the officer
conducting this search feels a small, hard object near the watch
pocket of the arrestee's jeans, is he permitted to lift the hem of
the arrestee's sweatshirt to determine what the object is?  The
court of appeals, evaluating this search as a warrantless pat-down
of the arrestee for weapons, answered "no."  Concluding that the
search was justified as a search for evidence of a crime which
could be concealed on the person, we hold that the superior court
did not err in denying defendant's suppression motion and reverse
the decision of the court of appeals.
II.  FACTS AND PROCEEDINGS
          Hurist Joubert was detained on suspicion of auto theft by
his parole officer, Stanley Shoop, who observed Joubert operating
a Cadillac that had been reported stolen.  Shortly thereafter
Anchorage Police Department (APD) officers Philip Kantor and Mitch
Kehr arrived.  The officers radioed APD dispatch and received
confirmation that the Cadillac was listed as stolen.  Officer
Kantor took Joubert from Parole Officer Shoop's car, handcuffed
him, and conducted a pat-down search.
          During this search, Officer Kantor felt something small
and hard in Joubert's right front pants pocket area but could not
ascertain the nature of the object because he was feeling it
through Joubert's bulky sweatshirt.  Officer Kantor suspected that
it might be a weapon so he lifted the hem of the sweatshirt "to see
what it was."  Officer Kantor testified that when he exposed
Joubert's jeans by lifting the sweatshirt, he saw a white object
protruding from the top of Joubert's jeans' watch pocket.  The
object appeared to be a rock of crack cocaine, and Officer Kantor
seized it.  He then reached into the watch pocket and retrieved a
second object that also appeared to be a rock of crack cocaine.
Officer Kantor testified that these objects were about the size of
a pea.  Officer Kantor then searched Joubert's sweatshirt pocket
where he found a blue velvet bag containing what appeared to be
numerous rocks of crack cocaine.
          Based on these discoveries, Officer Kantor arrested
Joubert for cocaine possession and vehicle theft.  Joubert later
produced documentation that the Cadillac was registered in his
name.  The objects indeed were crack cocaine.  Joubert was indicted
on one count of third-degree misconduct involving a controlled
substance (possession of cocaine with intent to deliver) under AS
11.71.030(a)(1). [Fn. 1]
          Joubert moved to suppress the crack cocaine rocks as
fruits of an illegal search.  The trial court held an evidentiary
hearing during which Officer Kantor testified that he could not
determine the nature of the object in Joubert's pocket.  He did not
believe that the object was a gun or a knife when he first felt it
but thought it may have been a razor blade or possibly an
extraordinarily small pocket knife.  He testified that "my concern
essentially was that I didn't know what [the object] was."
          The superior court initially dismissed Officer Kantor's
testimony that the crack rocks could have been a weapon as
"absolutely ludicrous."  It reasoned that if it upheld the search
on this basis there would "be no limit to the search for weapons
exception."  But the superior court upheld the search as a parole
search conducted at the behest of Parole Officer Shoop.
          At trial, however, the superior court learned that Parole
Officer Shoop neither directed nor requested Officer Kantor to
search Joubert.  Joubert therefore asked the court to reconsider
its denial of his suppression motion. [Fn. 2]  Before issuing his
ruling on reconsideration, the superior court judge examined the
rocks of cocaine admitted at trial.  He then made the following
findings:
          [A]t the time of the suppression hearing,
relying on what I saw and heard but without the opportunity to feel
the evidence which is a big difference, I ruled that Officer
Kantor's stated suspicion that these two rocks of cocaine might be
a small knife or razor was ludicrous.  That's wrong.  Considering
that the defendant was wearing jeans[,] that these two so-called
rocks of cocaine were in his watch pocket and that they were also
covered by the thickness of his sweatshirt, there is no doubt in my
mind at this point after having myself felt these two rocks of
cocaine, physically, for the first time, there's no doubt in my
mind that Officer Kantor's suspicion that this might be a small
knife or a razor blade was reasonable.  That's a reasonable
suspicion based on articulable facts.

          Joubert was convicted as charged and sentenced to a
presumptive term of six years.  The court of appeals reversed
Joubert's conviction, holding that Officer Kantor exceeded the
scope of a weapons search incident to arrest because he did not
have a reasonable and articulable suspicion that Joubert's pocket
contained an atypical, i.e., unusually small, weapon. [Fn. 3]
III. DISCUSSION
     A.   Standard of Review
          We review a denial of a motion to suppress in the light
most favorable to upholding the trial court's ruling. [Fn. 4]  The
trial court's findings of fact will not be disturbed unless they
are clearly erroneous. [Fn. 5]  We independently determine whether
the trial court's factual findings support its legal conclusions.
[Fn. 6]  We will sustain the ruling of a trial court on any
appropriate legal theory whether or not the theory was considered
by the trial court. [Fn. 7] 
     B.   Searches Incident to Arrest for Crimes Evidence of Which
May Be Found on the Person

          To be valid, a search incident to arrest must meet the
standards set out in McCoy v. State: (1) the arrest must be
supported by probable cause; (2) the search must be "roughly
contemporaneous" with the arrest; (3) the arrest must not be a
pretext for the search; and (4) the arrest must be for an offense,
evidence of which could be concealed on the person. [Fn. 8]  Under
this exception to the warrant requirement, the police must have
probable cause to make an arrest at the time the search takes
place, but it is not necessary to formally place the suspect under
arrest. [Fn. 9]  Joubert does not dispute the timing of the search. 
          1.   Joubert's arrest was supported by probable cause.
          Probable cause to arrest exists if the facts and
circumstances known to the officer would support a reasonable
belief that an offense has been or is being committed by the
suspect subject to the search. [Fn. 10]  Probable cause is
determined objectively and "'requires only a fair probability or
substantial chance of criminal activity, not an actual showing that
such activity occurred.'"  This court independently reviews
probable cause determinations.
          The trial court concluded that probable cause existed to
arrest Joubert based on the report that the Cadillac was stolen.
Joubert argues that the police had no probable cause to arrest him
because they "made no effort to verify [his] claim that he owned
the Cadillac."  The record supports the holding of the trial court. 
Parole Officer Shoop called to verify that the Cadillac was
reported stolen before calling the police, and Officer Kantor
called APD dispatch when he arrived at the scene to confirm that
DMV records did not list Joubert as the Cadillac's owner.  Joubert
has presented no evidence that the police acted unreasonably in
relying on either the report that the Cadillac was stolen or on the
information given to them by the dispatcher.
          2.   Joubert's arrest was not a pretext for the search.
          Joubert alleges that the police used his arrest for
vehicle theft as a mere pretext to search him for evidence of
suspected narcotics activities.  Joubert repeatedly refers to
Parole Officer Shoop's suspicions that Joubert may have been
involved in illegal drug activity as evidence of a pretextual
motive, and asserts that Parole Officer Shoop relayed these
suspicions to Officer Kantor.
          The evidence demonstrates that the police had probable
cause to arrest Joubert on suspicion of vehicle theft.  The car had
been reported stolen, and this report was confirmed at the time of
arrest.  Evidence that the police may also have suspected Joubert
of drug activities is not enough to demonstrate that this arrest
was a sham.  The evidence in the record is sufficient to uphold the
trial court's finding of probable cause.
          3.   Auto theft is an offense evidence of which can be
concealed on the person.

          Federal law permits a police officer to search a person
and any possessions found upon that person incident to arrest. 
Alaska law is not so permissive.  For a search incident to arrest
to go beyond a weapons search, the arrest must be for an offense
evidence of which may be found on the suspect's person.  If the
offense qualifies, the police may only search for evidence of that
offense and the search must be reasonable. 
          We upheld the trial court's holding that the police had
probable cause to arrest Joubert for auto theft -- third-degree
criminal misconduct under AS 11.46.484(a).  Joubert was not
formally arrested for this offense, but a formal arrest is not
necessary for this exception to apply.  The trial court treated
this search as a weapons search only because Officer Kantor "knew
he was not going to find any keys on the defendant to serve as
evidence of the crime of possession of this stolen car."  The court
of appeals did not address this theory. 
          Evidence of auto theft can include keys altered to fit
the vehicle, small tools used to break into the vehicle, or small
tools used to alter the vehicle.  Such evidence could be concealed
on the person.  It follows that auto theft fits into the category
of crimes for which a search for evidence incident to arrest is
permissible.
          The state argues that Officer Kantor's search was
reasonable because the above evidence could have been concealed in
Joubert's pocket.  Joubert argues that there was little, if any,
likelihood that such evidence could have been found on his person
in this case because the officer knew that the car keys were still
in the car.  Joubert asserts that this search was unreasonable
because under the particular circumstances of this case, it was
unreasonable for the police to have believed that any evidence of
vehicle theft could have been found on his person.  He further
notes that Officer Kantor testified that he was not searching for
evidence of a stolen car. 
          Officer Kantor's actions, however, are judged
objectively, and his subjective beliefs are not the focus of our
inquiry.  Officer Kantor's authority to search Joubert stems from
the lawful arrest, not from his subjective intentions regarding the
suspect.  It is noteworthy that Joubert was not arrested for a
minor offense.  McCoy and Zehrung limit full searches incident to
arrest to offenses of which evidence could be found on the suspect
in order to prevent the police from using a minor arrest as a
pretext for a full search.  Vehicle theft, even when couched as
third-degree misconduct, is not a minor offense.  One arrested for
vehicle theft cannot maintain the same expectation of privacy as
one arrested for failure to appear for a court date.
          We hold that the search of Joubert's watch pocket was
valid as a search incident to arrest.  The authority to search
Joubert was established by the arrest itself, as the crime fell
into the category of crimes evidence of which can be concealed on
the person.  Because we uphold this search as a valid search
incident to arrest, we need not reach the question of whether this
search exceeded the permissible boundaries of a warrantless pat-
down.
IV.  CONCLUSION
           We conclude, although for different reasons than those
announced by the superior court, that the superior court properly
denied Joubert's suppression motion.  We therefore REVERSE the
decision of the court of appeals.  


                            FOOTNOTES


Footnote 1:

     AS 11.71.030(a)(1) provides: 

          A person commits the crime of misconduct
involving a controlled substance in the third degree if the person
manufactures or delivers any amount of a schedule IIA or IIIA
controlled substance or possesses any amount of a schedule IIA or
IIIA controlled substance with intent to manufacture or deliver.


Footnote 2:

     See Joubert v. State, 977 P.2d 753, 756 (Alaska App. 1999). 


Footnote 3:

     See Joubert, 977 P.2d at 760.


Footnote 4:

     See Castillo v. State, 614 P.2d 756, 765-66 (Alaska 1980)
(citing Stumbaugh v. State, 599 P.2d 166, 172-73 (Alaska 1979));
Gray v. State, 596 P.2d 1154, 1158 n.18 (Alaska 1979).


Footnote 5:

     See Chilton v. State, 611 P.2d 53, 55 (Alaska 1980) (citing
Gonzales v. State, 586 P.2d 178, 180 n.9 (Alaska 1978));  Bobby v.
State, 950 P.2d 135, 138 (Alaska App. 1997) (citing Wilburn v.
State, 816 P.2d 907, 911 (Alaska App. 1991)).     


Footnote 6:

     See Troyer v. State, 614 P.2d 313, 318 (Alaska 1980); Wilburn,
816 P.2d at 911 (citing Juneby v. State, 641 P.2d 823, 834 (Alaska
App. 1982)).


Footnote 7:

     See McGee v. State, 614 P.2d 800, 805-06 n.10 (Alaska 1980)
(citing Pistro v. State, 590 P.2d 884, 888 n.13 (Alaska 1979)).  


Footnote 8:

     McCoy v. State, 491 P.2d 127, 138 (Alaska 1971) (citations
omitted), modified on other grounds, 573 P.2d 858 (Alaska 1978).


Footnote 9:

     See Uptegraft v. State, 621 P.2d 5, 9 (Alaska 1980).


Footnote 10:

     See McCoy, 491 P.2d at 129 (quoting Brinegar v. United States,
338 U.S. 160, 175-76 (1949)); Soolook v. State, 447 P.2d 55, 65
(Alaska 1968).


Footnote 11:

     See Reeves v. State, 599 P.2d 727, 741 n.44 (Alaska 1979)
(citing Keller v. State, 543 P.2d 1211, 1215 (Alaska 1975) (quoting
Berger v. New York, 338 U.S. 41, 55 (1967))).   
 [Fn. 11]