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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.
