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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Wagar (11/07/2003) sp-5750

State v. Wagar (11/07/2003) sp-5750

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


STATE OF ALASKA,              )
                              )    Supreme Court No. S-10369
                              )
               Petitioner,         )    Court of Appeals
                              )    No. A-7160
                              )
     v.                       )    Trial Court No.
                              )    3AN-97-6208 Cr.
                              )
DONALD WAGAR,            )
                              )    O P I N I O N
                              )
                Respondent.         )    [No. 5750 - November  7,
2003]
                              )



          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,
          Larry D. Card, Judge.

          Appearances:   Douglas H. Kossler,  Assistant
          Attorney   General,   Anchorage,   Bruce   M.
          Botelho,   Attorney  General,   Juneau,   for
          Petitioner.    Quinlan   Steiner,   Assistant
          Public  Defender,  Barbara K.  Brink,  Public
          Defender, Anchorage, for Respondent.

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

          MATTHEWS, Justice.

I.   INTRODUCTION

           The  question here is whether an officer conducting  a

pat-down  search  for  weapons during an investigatory  stop  who

feels  an object that he reasonably believes might be used  as  a

weapon  may  examine  the object to confirm  that  it  is  not  a

potential weapon.  The court of appeals answered this question in

the  negative,  holding that the officer must have  a  reasonable

belief  that the object is a weapon, not merely that it might  be

used  as  a weapon.  We answer in the affirmative because officer

safety  is  better  served by permitting searches  for  potential

weapons  and because this is the teaching of the leading treatise

on search and seizure law.

II.  FACTS AND PROCEEDINGS

          The facts and the initial proceedings are stated by the

court of appeals:

                At  about 10:00 p.m. on August 8, 1997,
          Othal C. Madden, a security manager for Brown
          Jug,  Incorporated, was in a parking  lot  by
          the Brown Jug liquor store at 26th Avenue and
          Spenard Road.  Madden was in the parking  lot
          to  look  for  adults purchasing alcohol  for
          minors or minors trying to buy alcohol out of
          the Brown Jug store.  Madden saw Wagar and  a
          female  companion  pull into  the  lot  in  a
          relatively  new  Dodge  pickup.   Wagar   was
          driving.  Madden saw Wagar throw and break  a
          bottle into the parking lot.  Then Wagar  got
          out,  went to the bed of the pickup,  took  a
          bottle of beer out of a cooler, and got  back
          into  the driver's side.  Shortly thereafter,
          Wagar got out again, left the door open,  and
          urinated in the parking lot.
          
                Madden watched the pickup for about  an
          hour.   During  the  hour, Madden  saw  Wagar
          return to the cooler for what appeared to  be
          several  more  beers.  Madden  also  saw  the
          passenger  repeatedly put  her  hand  to  her
          nose, covering a nostril, and lean down as if
          she were snorting cocaine.  Madden decided to
          defer  calling the police about what  he  saw
          until  he  was ready to wrap up or until  the
          pickup  started to leave because  Madden  did
          not   want  his  "sting"  interrupted  by   a
          "parking  lot  .  . . full of  police  cars."
          When  Madden  was  ready  to  go,  he  called
          Alcohol  Beverage Control Board  Investigator
          John  F. Bilyeu on a cell phone.  Bilyeu  was
          approximately 200 yards away in a patrol  car
          with  Anchorage Police Officer  Derek  Hsieh.
          Bilyeu  and Hsieh were working together  that
          night    investigating   potential    alcohol
          violations.
          
                Madden told Bilyeu that he had  seen  a
          man  (Wagar) consume four or five  beers  and
          urinate  in  the  parking lot.   Madden  told
          Bilyeu  that the woman passenger appeared  to
          be  using cocaine.  Madden also described the
          Dodge to Bilyeu.  According to Bilyeu, Madden
          told  him that both occupants appeared to  be
          using  cocaine.  Bilyeu relayed this  version
          of  Madden's  report to  Hsieh.   Bilyeu  and
          Hsieh,  who  had just pulled up  to  Chilkoot
          Charlie's  to  walk through the bar,  instead
          went  directly to the parking lot  where  the
          Dodge was parked.  As Hsieh and Bilyeu pulled
          into  the  lot, Madden pointed to the  Dodge,
          and Hsieh drove up to the truck and parked.
          
               Wagar and his companion were getting out
          of  the  truck when Hsieh and Bilyeu arrived.
          Hsieh  contacted  Wagar and noticed  that  he
          smelled   of  alcoholic  beverages.    Bilyeu
          contacted the companion.  Wagar put his hands
          in his jeans pockets, although Hsieh told him
          not  to  do  that.   Wagar turned  away  from
          Hsieh,  an  action  that Hsieh  described  as
          "blading," and "kind of a danger sign that  a
          person may be attempting to hide something or
          .  . . positioning their body in some type of
          fighting posture[.]"  Because Wagar  put  his
          hands  in his pockets and turned away,  Hsieh
          testified  that  he felt he was  "potentially
          .  .  . at risk[.]"  Hsieh frisked Wagar  for
          weapons.
          
               Hsieh found nothing of note until he got
          to  Wagar's T-shirt pocket.  In that  pocket,
          Hsieh  felt a pack of cigarettes, a  lighter,
          and an unknown object that was hard, pointed,
          and  approximately three inches long.   Hsieh
          asked  Wagar what the object was,  and  Wagar
          said  he did not know.  Hsieh testified  that
          he  became "very nervous" because he  thought
          that  the object might be a weapon.  As Hsieh
          manipulated  the object with his fingers,  he
          looked  into the T-shirt pocket and saw  that
          the  object  was a glass vial  with  a  white
          powdery  substance that looked like  cocaine.
          Hsieh seized the vial and arrested Wagar.
          
                The  grand jury indicted Wagar  on  one
          count of fourth-degree misconduct involving a
          controlled   substance.    Wagar   moved   to
          suppress  the cocaine Hsieh seized.  Superior
          Court Judge Larry D. Card held an evidentiary
          hearing on Wagar's motion.  Judge Card  found
          that  Wagar was subjected to an investigatory
          stop at the point Hsieh touched him, and that
          this  investigatory  stop  was  supported  by
          Hsieh's   reasonable  suspicion  of  criminal
          activity.  Judge Card concluded that  Hsieh's
          reasonable suspicion justified a pat-down for
          weapons  and  denied Wagar's  motion.   Wagar
          entered a Cooksey1 plea, reserving his  right
          to   appeal  the  denial  of  his  motion  to
          suppress.   Judge  Card  sentenced  Wagar  to
          eighteen  months' imprisonment with seventeen
          months suspended.[2]
          
           On  appeal,  Wagar  raised three  points.   First,  he

contended that the investigatory stop conducted by Officer  Hsieh

was  not supported by reasonable suspicion "that imminent  public

danger  exists  or that serious harm to persons or  property  has

recently  occurred."3  Second, even if the stop were permissible,

Wagar  argued that the frisk was not.4  Third, even if  the  stop

and  the frisk were permissible, Wagar argued that Hsieh exceeded

the  allowable scope of a pat-down search for weapons when  Hsieh

looked into Wagar's T-shirt pocket in order to determine what the

unknown object was.5

           On  the  first two points, a majority of the court  of

appeals  concluded that the superior court's determinations  were

appropriate.6   But  on  the third point, the  court  of  appeals

concluded that the superior court's findings were inadequate  and

remanded the case for "findings on whether the object felt like a

typical  weapon  or whether Officer Hsieh knew  of  specific  and

articulable  facts  that  support a reasonable  belief  that  the

unknown  object was an atypical weapon that Wagar  could  use  to

harm Officer Hsieh or others nearby."7

           On remand, the superior court conducted a supplemental

evidentiary hearing.  The superior court purported to answer  the

court of appeals's second question in the affirmative, stating:

          This court finds after hearing that the glass
          vial  discovered by Officer Hsieh was  not  a
          typical  weapon  which was  apparent  to  the
          Court  of  Appeals.  Having not  found  it  a
          typical  weapon, Officer Hsieh  had  to  have
          specific  and  articulable facts  that  would
          support  a reasonable belief that the unknown
          object  was an atypical weapon that it  could
          use - to harm the officers before he examined
          the contents of the pocket.
          
                As  he  testified  at  the  hearing  on
          October   13,   2000,   it   was   a   small,
          unidentified, hard object and he was  curious
          as  to  what it might be because it was  hard
          and  pointed  and approximately three  inches
          long.   Even though he did not feel it was  a
          weapon,  he  became very nervous  because  he
          thought  that the object could be used  as  a
          weapon or might be a weapon, in his words.
          
                The officer proceeded to discuss a time
          in his training when he was given opportunity
          to  do  a  practice attack  on  the  training
          officer,  and  the training  officer  took  a
          small object which he could not even see that
          was  pointed  and placed it at or  about  his
          neck  which  caused  the  officer  to  become
          disoriented.
          
                Thus, the question is whether it was an
          atypical weapon that he felt and can be  used
          to  harm  the  officers is  answered  in  the
          affirmative.   The  officer's  feelings  were
          reasonable.   That it was an atypical  weapon
          even  if  nothing more than, from the court's
          perspective, a pencil with a point that could
          be used to harm the officer.
          
               Thus, having said that, this court finds
          that  it was a reasonable belief that it  was
          an  atypical  weapon.   And,  therefore,  the
          court affirms its findings previously issued.
          
           Upon receiving the superior court's findings the court

of  appeals stated that "the superior court found the police were

justified  in removing the vial from Wagar's pocket  because  the

officer  who performed the search reasonably believed the unknown

object  could  potentially  be used as  a  weapon."8   The  court

concluded that this was not the correct test.9  Instead, what  is

required  are  "affirmative reasons -  specific  and  articulable

facts  -  to  support a reasonable belief the unknown object  was

indeed an atypical weapon."10  The court of appeals found that the

superior court's findings fell short of determining that  Officer

Hsieh  had  a  reasonable belief that the unknown object  was  an

atypical  weapon and thus reversed the judgment of  the  superior

court.11

          We granted the state's petition for hearing.

III.      DISCUSSION

           We disagree with the court of appeals's decision.   In

our  view, what is needed to justify a further examination of  an

unknown object felt in a frisk for weapons is a reasonable belief

on  the  part  of the officer, based on "specific and articulable

facts  .  . . taken together with rational inferences from  those

facts,"12 that the object may be used as a weapon.

            This   conclusion  is  supported  by  the   rationale

justifying  a  weapons  search in connection  with  investigatory

stops when the officer has reason to believe that the suspect may

be  armed  and dangerous.  The overarching rationale  is  officer

safety.   As  the Terry Court observed:  "Certainly it  would  be

unreasonable  to  require that police officers  take  unnecessary

risks  in  the  performance of their duties."13  The  distinction

between objects that are not shaped like typical weapons but  may

nevertheless  be  weapons  and similar objects  that  are  merely

potentially usable as weapons seems extremely tenuous.  If  there

is  a  difference  it lies in the intent of  the  bearer  of  the

object.   But  this  intent is not necessarily  apparent  to  the

officer  conducting  the  frisk.  In our  view,  the  distinction

inherent in the court of appeals's decision is too vague to serve

as a dividing line between permissible and impermissible searches

that are conducted in order to ensure officer safety.

           Our  conclusion that the court of appeals too narrowly

limited  searches after a pat down to objects that are reasonably

believed  to  be weapons rather than objects that are  reasonably

believed  to  have  the  potential for use  as  weapons  is  also

supported  by  the leading text on search and seizure,  Professor

LaFave's  Search and Seizure.  According to LaFave, the  critical

issue is "what properly may be deemed a potential weapon in  this

context."14   LaFave precedes this statement with  the  following

discussion:

          [A]nother  important question which  must  be
          resolved in order to assess the conduct of  a
          police  officer who has performed a frisk  is
          that  of what tactile sensations produced  by
          the pat-down will justify a further intrusion
          into the clothing of the suspect.
          
               At the outset, it must be asked what the
          legal  test is at this point.  In Terry,  the
          Court  stressed that after patting  down  the
          suspects Officer McFadden "did not place  his
          hands  in  their pockets or under  the  outer
          surface  of their garments until he had  felt
          weapons."  But surely this does not mean that
          the policeman must know beyond any doubt that
          what  he  has  felt is a weapon; the  officer
          "need  not  be  absolutely certain  that  the
          individual is armed."  Sometimes it  is  said
          that  he  must  feel  "an  object  which   he
          reasonably   believes  to  be   a   dangerous
          weapon," which may be an appropriate test  if
          this  reasonable belief does not require that
          it  be possible to determine that it is  more
          probable  than  not  that  the  object  is  a
          weapon.   As some courts put it, it  must  be
          asked  whether  the  object  "feels  like   a
          weapon"  or  was one the officer  "reasonably
          believed  could  have  been"  a  weapon,   or
          whether  on the other hand there was anything
          in  the officer's "perception to indicate  it
          was  not  a weapon either because of size  or
          density."
          
                In making a judgment on this point in a
          particular  case,  it  may  be  critical   to
          determine  what  properly  may  be  deemed  a
          potential weapon in this context.[15]
          
           After  warning against accepting fanciful speculations

as  to what might reasonably be believed to be a weapon,16 LaFave

continues:

               Under the better view, then, a search is
          not  permissible when the object felt is soft
          in  nature.[17]  If the object felt is  hard,
          then  the  question is whether its  "size  or
          density"   is  such  that  it  might   be   a
          weapon.  .  . .  Under this approach,  courts
          have  upheld as proper searches which  turned
          up certain objects other than guns, such as a
          pocket  tape  recorder, a  pipe,  a  pair  of
          pliers, cigarette lighter, several keys taped
          together,  a metal money clip full of  money,
          tightly wrapped bags of crack cocaine,  or  a
          prescription bottle.[18]
          
           We agree with LaFave.  In the context of this case the

relevant question was whether the object Hsieh felt in Wagar's T-

shirt  pocket  could, based on "specific and articulable  facts,"

reasonably be believed to be a potential weapon, not as the court

of appeals held, whether it was indeed a weapon.19

           A  denial of a motion to suppress is reviewed  in  the

light  most  favorable to upholding the trial  court's  ruling.20

"The  trial court's findings of fact will not be disturbed unless

they are clearly erroneous."21  Whether the trial court's findings

support  its legal conclusions is a question we answer  with  our

independent  judgment.22  Employing these standards, we  conclude

that the trial court's decision should be upheld.

           The  trial  court found that Hsieh "thought  that  the

object  could be used as a weapon" and that this was a reasonable

belief.    These   findings  are  supported  by   "specific   and

articulable  facts"  - the evidence as to the  size,  shape,  and

hardness of the object and Hsieh's training experience - and  are

thus  not  clearly erroneous.  They also satisfy the  appropriate

legal  standard that an object felt in a pat-down search  can  be

examined if the officer reasonably believes that it might be used

as a weapon against the officer or others nearby.

IV.  CONCLUSION

           REVERSED  and  REMANDED  for  further  proceedings  in

accordance with this opinion.

_______________________________
1See Cooksey v. State, 524 P.2d 1251 (Alaska 1974).
2Wagar v. State (Wagar I), 2000 WL 799324 *1-2 (Alaska App., June
21, 2000).
3Id.  at  *2.   This  is  the  Alaska  standard  under  which  an
investigatory  stop is justified.  See, e.g., Coleman  v.  State,
553  P.2d  40,  46 (Alaska 1976).  The standard is somewhat  more
stringent  than  the standard for investigatory stops  under  the
federal  constitution.  See Terry v. Ohio,  392  U.S.  1  (1968),
requiring  a  reasonable belief "that criminal  activity  may  be
afoot."   Coleman adopted the objective test expressed  in  Terry
for determining when an officer's suspicion is reasonable:

          [T]he police officer must be able to point to
          specific  and articulable facts which,  taken
          together with rational inferences from  those
          facts,   reasonably  warrant  the   intrusion
          .  . . .  And in making that assessment it is
          imperative  that the facts be judged  against
          an   objective  standard:   would  the  facts
          available to the officer at the moment of the
          seizure  or  the  search "warrant  a  man  of
          reasonable  caution in the belief"  that  the
          action taken was appropriate?
          
 Coleman, 553 P.3d at 45 (quoting Terry, 392 U.S. at 21-22).

4Wagar I, 2000 WL 799324 at *3.  Not every legitimate stop can be
accompanied by a frisk.  What is needed is a reasonable belief at
the  time of the initiation of the frisk that the suspect may  be
armed and dangerous.  Terry, 392 U.S. at 30:

          [W]here  a  police  officer observes  unusual
          conduct   which   leads  him  reasonably   to
          conclude  in  light  of his  experience  that
          criminal  activity may be afoot and that  the
          persons with whom he is dealing may be  armed
          and presently dangerous, . . . he is entitled
          for  the protection of himself and others  in
          the  area  to  conduct  a  carefully  limited
          search  of the outer clothing of such persons
          in an attempt to discover weapons which might
          be used to assault him.
          
See  also 4 Wayne R. LaFave, Search and Seizure  9.5(a),  at  250
(3d  ed.  1996) ("[I]t should not be assumed that whatever  might
happen  between the initiation of the stop and the initiation  of
the frisk is of no relevance, for this is not the case.").

5Wager  I, 2000 WL 799324 at *3.  As the court of appeals  noted,
the  permissible  scope  of  a pat-down  search  for  weapons  is
ordinarily  "limited to the person's exterior  clothing.   Unless
the pat-down search discloses the presence of a potential weapon,
further  intrusion into the person's pockets is  not  permitted."
Id. (citation omitted).
6Id. at *2-3.
7Id. at *5.
8Wagar  v.  State  (Wager II), 2001 WL 1143307 *1  (Alaska  App.,
Sept. 26, 2001).
9Id.
10Id.
11Id.
12Terry v. Ohio, 392 U.S. 1, 21 (1968).
13Id. at 23.
144 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment  9.5(c), at 277 (3d ed. 1996) (emphasis added).
15Id. at 276-77 (citations omitted) (emphasis added).
16Id.  at 277 (using as an example "a rubber water pistol  loaded
with carbolic acid") (citing People v. Armenta, 73 Cal. Rptr. 819
(Cal. App. 1968)).













































































































































































17LaFave quotes the admonition of People v. Collins, 463 P.2d 403
(Cal. 1970):

          To  permit officers to exceed the scope of  a
          lawful  pat-down whenever they  feel  a  soft
          object by relying upon mere speculation  that
          the  object might be a razor blade  concealed
          in  a  handkerchief, a "sap,"  or  any  other
          atypical   weapon  would  be  to  hold   that
          possession of any object, including a wallet,
          invites  a  plenary search of an individual's
          person.
          
LaFave, supra note 14, at 277.

18Id. at 278-79 (citations omitted).
19In  deciding  this point, we have no occasion to  question  the
validity  of prior Alaska cases like Zehrung v. State,  569  P.2d
569  P.2d 189 (Alaska 1979), and Jackson v. State, 791 P.2d  1023
(Alaska  App.  1990)  - a line of authority  that  the  court  of
appeals relied on in reaching its decision here.  See Wagar II at
*2-3.   These cases are inapposite because they address a  narrow
point   not  raised  in  Wagar's  case:  an  arresting  officer's
authority,  under the search incident to arrest  doctrine,  where
the  arrest  is  not  for  a  crime  for  which  there  could  be
concealable  evidence, to open and look inside  a  small,  closed
container  (in both cases, a wallet) that is not itself suspected
of  being  usable as a weapon, but is lawfully taken into  police
custody during the arrest and is then searched to see if it might
contain an atypical weapon.  See, e.g., Jackson, 791 P.2d at 1028
("Search  of smaller containers which could only contain atypical
weapons  must  be  supported by specific articulable  facts[.]").
Here,  by contrast, Officer Hsieh seized a glass vial from  Wagar
because  he reasonably felt that Wagar might use the vial  itself
as  a weapon, not because he wanted to see if it might contain an
atypical  weapon; and Wagar challenges only the  vial's  seizure,
not its subsequent search.
20State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001).
21Id.
22Id.