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Erickson v. State (7/7/2006) ap-2053

Erickson v. State (7/7/2006) ap-2053

                             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@appellate.courts.state.ak.us
               

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA

                                        
JOSEPH E. ERICKSON, )
) Court of Appeals No. A-8942
Appellant, ) Trial Court No. 4FA-04-536 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) No. 2053 - July 7, 2006
)
Appeal    from     the
          Superior  Court,  Fourth  Judicial  District,
          Fairbanks, Donald D. Hopwood, Judge.

          Appearances:   Marcia E.  Holland,  Assistant
          Public  Defender, Fairbanks, and  Barbara  K.
          Brink,  Public Defender, Anchorage,  for  the
          Appellant.   Kenneth M. Rosenstein, Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          David  W. M rquez, Attorney General,  Juneau,
          for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          COATS,  Chief Judge.

          Joseph  E. Erickson was a passenger in a car  that  was
stopped by Alaska State Trooper Joseph Hazelaar for not having  a
front  license  plate.   Trooper  Hazelaar  asked  Erickson   for
identification.   Erickson stated he had no  identification.   He
identified  himself  as Chris Erickson and  provided  a  date  of
birth.    Trooper  Hazelaar  checked  the  Alaska  Public  Safety
Information  Network  (APSIN) and found no  record  matching  the
information  provided by Erickson.  He therefore  concluded  that
Erickson   had   committed  the  offense   of   providing   false
information.  He ordered Erickson out of the car and conducted  a
pat-down search.  The search yielded an identification card  that
identified Erickson as Joseph Erickson.  Trooper Hazelaar  placed
Erickson  under arrest for giving him false information.   During
the  pat-down  search, Trooper Hazelaar found  illegal  drugs  on
Erickson.  The State charged Erickson with possession of  illegal
drugs.          Erickson  moved  to suppress  the  evidence  that
Trooper  Hazelaar found during the search.  Superior Court  Judge
Donald D. Hopwood upheld the search.  Erickson was convicted, and
he   appeals  Judge  Hopwoods  decision  denying  his  motion  to
suppress. We conclude that, under the facts of this case, Trooper
Hazelaar  could order Erickson out of the car.  But  we  conclude
that  Trooper Hazelaar did not have a sufficient basis to conduct
a  pat-down search.  We accordingly reverse Judge Hopwoods  order
upholding the search and remand for further proceedings.

          Factual and procedural background
          On  February  15, 2004, at 3:51 a.m. while  on  routine
patrol   in  Fairbanks,  Alaska  State  Trooper  Joseph  Hazelaar
conducted  a  traffic  stop  for a traffic  violation   no  front
license  plate.  Trooper Hazelaar observed two men  in  the  car.
Neither  was wearing a seat belt.  Trooper Hazelaar informed  the
driver  of  the  license plate violation and asked  both  men  to
produce  identification.  The driver  produced  an  Alaska-issued
drivers  license  that  identified him as  Erik  Schroeder.   The
passenger  (Erickson)  said  he had no  identification.   Trooper
Hazelaar then asked the passenger for his name and date of birth.
The  passenger identified himself as Chris Erickson and gave  his
date  of  birth as May 29, 1982.  Trooper Hazelaar then contacted
dispatch to run a background check on the individuals.  An  APSIN
check  of Schroeders drivers license revealed that Schroeder  was
on  parole  and  probation for robbery in the first  degree.  The
information provided by Erickson matched no record in  the  APSIN
database.  Trooper Hazelaar concluded that Erickson was  probably
falsely  reporting his name.  Trooper Hazelaar testified that  it
was  his  regular  practice, during a traffic stop,  to  ask  all
individuals for identification, whether or not they were  wearing
a   seatbelt.    Trooper  Hazelaar  further  testified  that  the
majority  of the time that a person provides a false  name,  they
are  hiding something such as an outstanding warrant or the  fact
that they are on probation.
          Trooper  Hazelaar concluded that, for  his  safety,  he
should order Erickson out of the car.  He explained that he  took
this  action  because it was around 4:00 a.m.,  he was  the  only
officer  on the scene, and he had learned that Schroeder  was  on
parole   and  probation  for  armed  robbery.  Trooper   Hazelaar
testified that Erickson acted suspiciously as he got out  of  the
car.   Specifically,  Trooper Hazelaar said that,  when  he  told
Erickson  to get out of the car, Erickson appeared surprised  and
apparently looked for various exit points.  When he actually  got
out of the car,  he was very hesitant and appeared not to want to
join Trooper Hazelaar at the rear of the car.
          When  Erickson  left the car, Trooper  Hazelaar  saw  a
black  bag  or purse lying in the snow next to the passenger-side
door;  this  bag or purse had not been there before Erickson  got
out  of  the  car.  When Erickson came to the back  of  the  car,
Trooper  Hazelaar patted him down for weapons.   Trooper Hazelaar
testified  that, as he moved his hand over Ericksons front  pants
pocket, he felt an identification card.  He testified that, based
on  his training and experience, he knew 100 percent that it  was
some type of form of identification, as opposed to a credit card,
based on the firmness of its edge.  Trooper Hazelaar then removed
the   item,  which  in  fact  was  an  identification  card.  The
identification cards picture matched Ericksons face but the  name
on  the  card was Joseph E. Erickson rather than Chris  Erickson.
Trooper  Hazelaar then placed Erickson under arrest for making  a
false report.
          In  the  trial court there was a factual dispute  about
whether the identification card was in Ericksons front pocket  or
in  his  wallet.   At the evidentiary hearing,  Trooper  Hazelaar
testified  that he could not remember whether the card  had  been
removed  from  Ericksons wallet or his front  pocket.   He  later
stated,  after  being reminded of his grand jury testimony,  that
the card was in Ericksons front pants pocket.   Erickson contends
that  the audio tape of the contact clearly establishes that  the
trooper  found  the  card  in Ericksons  wallet.   Judge  Hopwood
resolved this conflict by finding that Trooper Hazelaar found the
card in Ericksons front pants pocket.
          After  placing Erickson under arrest for making a false
report,  Trooper  Hazelaar continued his  pat-down  search.    He
found a plastic bag with a green leafy substance inside it and  a
glass  pipe  with  a white milky residue on the  inside.  Trooper
Hazelaar  then  asked Erickson about the black bag  on  the  snow
beside the passenger door.  Erickson replied that it looked  like
trash.  Trooper Hazelaar retrieved the black bag and searched it.
He  found  a  white  powdery  substance  that  ultimately  tested
positive as methamphetamine. Trooper Hazelaar also found a  hotel
room key card in Ericksons wallet.
          Erickson  was  indicted on two counts of  fourth-degree
misconduct   involving   a   controlled   substance   under    AS
11.71.040(a)(3)(A).  The first count charged  possession  of  the
methamphetamine  found in the black bag next  to  the  car.   The
second  count related to possession of methamphetamine  that  the
police  later  found  in  the  hotel room  Erickson  shared  with
Schroeder.   In addition, the State charged Erickson with  sixth-
degree misconduct involving a controlled substance for possession
of marijuana and with providing false information.1
          Erickson moved to suppress all of the evidence that the
State  obtained after Trooper Hazelaar ordered him to get out  of
the  car.   Judge  Hopwood conducted an evidentiary  hearing  and
denied  the  motion  to  suppress. Judge Hopwood  concluded  that
Trooper Hazelaar validly stopped the car for a traffic violation.
He  concluded that Trooper Hazelaar had legitimate concerns about
his  safety and was justified in ordering Erickson out of the car
and  patting him down for weapons.  Judge Hopwood considered  the
facts  that  Trooper Hazelaar was the only officer at the  scene,
that he made the stop at approximately 4:00 a.m., and that he had
just discovered that the driver,  Schroeder, was on probation and
          parole for a serious felony.  Furthermore, the judge considered
that  Erickson claimed not to have identification and that  there
was  no  record in APSIN matching the name Chris  Erickson.    He
noted  that Trooper Hazelaar testified that Erickson appeared  to
be under the influence of something and was acting suspiciously.
          Judge  Hopwood found that, while Trooper  Hazelaar  was
patting down Erickson for weapons, he discovered what he believed
was an identification card in Ericksons pocket.  Trooper Hazelaar
removed  the  card  from  Ericksons pocket  and  identified  him.
Trooper Hazelaar then arrested Erickson for making a false report
and handcuffed Erickson.
          Judge Hopwood found that Trooper Hazelaar then searched
Erickson  incident  to the arrest.  Trooper  Hazelaar  discovered
money,  the glass pipe with the residue, and the baggie with  the
green  leafy substance in it.  He also discovered the  room  card
key,  which  led to the search of the hotel room.  Judge  Hopwood
denied Ericksons motion to suppress.
          Erickson was convicted by a jury of fourth- and  sixth-
degree misconduct involving a controlled substance for possessing
the  methamphetamine  found in the black bag  and  the  marijuana
found  on  his  person.   The trial court granted  a  motion  for
judgment  of acquittal with respect to the false information  and
report  charge,  and the jury acquitted Erickson on  the  fourth-
degree misconduct involving a controlled substance count stemming
from  the methamphetamine found in the hotel room.  Erickson  now
appeals from Judge Hopwoods order denying his motion to suppress.
          Why  we conclude that Trooper Hazelaar  could
          order Erickson out of the car

          In Maryland v. Wilson,2 the United States Supreme Court
held  that  a  police  officer  can  order  the  driver  and  the
passengers  out  of  a car that the officer  has  stopped  for  a
routine   traffic  violation,  without  need   of   any   further
justification.   The  State  urges  us  to  adopt  this   federal
standard.   But  we conclude that we do not need to  decide  this
issue.   In  our view, Judge Hopwood found case-specific  reasons
that  justified Trooper Hazelaars action of ordering Erickson out
of  the  car.   First, Judge Hopwood pointed out  that  the  stop
occurred  at  4:00 a.m. and that  Trooper Hazelaar was  the  only
officer  at the scene.  Trooper Hazelaar then found out that  the
driver,  Schroeder,  was on parole and probation  for  a  serious
felony  offense.  Erickson appeared to be under the influence  of
alcohol or drugs.  Furthermore,  Trooper Hazelaar suspected  that
Erickson had given him false identification because there was  no
record of Chris Erickson in the APSIN database.  We conclude that
Judge Hopwood did not err in concluding that Trooper Hazelaar had
legitimate case-specific reasons for ordering Erickson out of the
car.

          Why  we conclude that Judge Hopwood erred  in
          finding that Trooper Hazelaar could conduct a
          pat-down search of Erickson

          The  State  argues that Trooper Hazelaar  had  probable
cause to arrest Erickson for giving false information to a police
officer  about his identity while he was under arrest, detention,
          or investigation for a crime... .3   In the first place, we
question  whether  Erickson was under detention or  investigation
for  a  crime.   At  the  time of Ericksons offense,  the  Alaska
Statutes defined failure to wear a seatbelt as an infraction that
was punishable by a fine of fifteen dollars.4   Furthermore, even
if  a violation of the seatbelt law can be classified as a crime,
the State has not presented any evidence which would allow us  to
conclude  that  the fact that Ericksons name did  not  appear  in
APSIN  established probable cause for Trooper Hazelaar to  arrest
Erickson for giving a false name.
          The  States assertion, for which it did not provide any
evidence,  is  that  the APSIN database is so  comprehensive  and
accurate  that if a persons name is not listed, a police  officer
can  conclude that the person has given him a false name and  has
probable   cause   to  arrest  the  person   for   giving   false
identification.   It  appears that APSIN  includes  the  name  of
anyone  who  has  an Alaska drivers license.5   It  also  appears
that APSIN includes the name of anyone with an arrest, a criminal
conviction, or a traffic ticket originating in Alaska.6  But even
assuming this information is accurate, many people would  not  be
listed  in  the  database.   It seems  likely  that  many  Alaska
residents  do  not  have  drivers  licenses.   In  particular,  a
resident of a bush community might have little reason to  have  a
drivers  license.   Furthermore, many people  visit  Alaska  from
other states and countries.  It seems likely that they would  not
appear  in the APSIN database.  Furthermore, the States  argument
appears to rest on an unrealistic expectation that information in
the  APSIN database is accurate and can be easily obtained.  Many
people  go by nicknames, middle names, or initials.   Many  women
change  their  last name when they are married.  Accordingly,  if
the  name is not entered in the database the same way it is given
to the officer, the officer  might not locate the name even if it
was  in  the  database.  And it certainly seems possible  that  a
trooper or a dispatcher could make a mistake in spelling  a  name
or in hearing or writing down a date of birth.
          The  foregoing examples are some of the reasons why  we
cannot   accept  the  States  assertion  that  Trooper  Hazelaars
inability to find Ericksons name in the APSIN database  gave  the
trooper probable cause to arrest Erickson for falsely identifying
himself.   (We  also  note that Judge Hopwood  granted  Ericksons
motion  for  judgment of acquittal on the charge that he  falsely
identified  himself.)   We conclude, on  the  record  before  us,
that,   although  Trooper  Hazelaar  might  have  had  reasonable
suspicion  that Erickson gave  him a false identity, he  did  not
have   probable  cause  to  arrest  Erickson  on   that   ground.
Therefore,  we reject the States assertion that the  trooper  was
authorized to search Erickson incident to that arrest.
          The  State  next  contends that  Trooper  Hazelaar  had
reasonable  grounds to conduct a pat-down search of Erickson  for
weapons.   Trooper Hazelaar initially stopped the  car  in  which
Erickson was a passenger for not having a front license plate   a
relatively  minor traffic violation for which Erickson apparently
had  no  responsibility.  The trooper had probable cause to  cite
Erickson  for failure to wear a seatbelt.  But this  offense  was
also a minor infraction, punishable by a fifteen-dollar fine.
            The  standard  for conducting a pat-down  search  for
          weapons in these circumstances is set out in Free v. State.7   In
that case, the Alaska Supreme Court concluded that, when a police
officer  has  legitimately stopped a person,  he  may  conduct  a
limited  search  for weapons if he reasonably believes  that  the
person may be armed and dangerous:
          The  fourth amendment allows a police officer
          who   has   a  reasonable  belief  that   the
          individual  with whom he is  dealing  may  be
          armed  and  dangerous to  conduct  a  limited
          search  for  weapons for his own  protection.
          The  officer  need not be absolutely  certain
          that   the  individual  is  armed,  nor  have
          probable  cause  to arrest him  for  a  crime
          only that his safety or that of others may be
          in  danger.   The officers reasonable  belief
          may be based on his own personal observations
          or   information   from  a   reliable   third
          party.[8]

Although  we conclude that the information that Trooper  Hazelaar
had  was sufficient to allow him to order Erickson to get out  of
the car, we do not believe that the record shows that the trooper
had  sufficient reason to conduct a pat-down search for  weapons.
It  is  true  that the stop occurred at 3:51 a.m.,  that  Trooper
Hazelaar was by himself, and that the trooper learned the driver,
Schroeder,  was  on  probation or parole  for  a  serious  felony
offense.    Furthermore,  Erickson  appeared  to  be  under   the
influence  of some drug, had no identification, and  the  trooper
could  not  identify him in the APSIN database. The trooper  also
testified that Erickson acted suspiciously when the trooper  told
him to get out of the car.
          However,  in  our view, these facts do  not  support  a
reasonable   belief  that  Erickson  was  armed  and   dangerous.
Professor  LaFave, in his treatise on search and  seizure,  lists
circumstances  that  would justify a pat-down  search  where  the
officer  has  stopped  a  person for  a  legitimate  non-criminal
reason:
          a   characteristic  bulge  in  the   suspects
          clothing;  observation of an  object  in  the
          pocket  which might be a weapon; an otherwise
          inexplicable sudden movement toward a  pocket
          or  other  place  where  a  weapon  could  be
          concealed; an otherwise inexplicable  failure
          to  remove  a  hand  from a  pocket;  awkward
          movements  manifesting an apparent effort  to
          conceal  something under his jacket;  backing
          away   by  the  suspect  under  circumstances
          suggesting he was moving back to give himself
          time  and  space to draw a weapon;  awareness
          that  the suspect had previously been engaged
          in  serious criminal conduct; awareness  that
          the   suspect  had  previously  been   armed;
          awareness  of  recent erratic and  aggressive
          conduct by the suspect; discovery of a weapon
          in  the  suspects possession; discovery  that
          the  suspect is wearing a bullet[-]proof vest
          as  to  which  he makes evasive denials;  and
          awareness of circumstances which might prompt
          the  suspect to take defensive action because
          of   a   misunderstanding  of  the   officers
          authority or purpose.[9]

          The  Alaska  cases that we have examined are consistent
with  the  federal standard set out in LaFave.  For instance,  in
State  v. Wagar,10 the Alaska Supreme Court reviewed a case where
a  trooper approached a couple in a parked car.  The trooper  had
been informed by a witness that the occupants in the car appeared
to  be using cocaine and drinking.11  When the trooper approached
the  car,  the man, Wagar, got out of the car.  The trooper  told
Wagar  not to put his hands in his pockets.  Wagar put his  hands
in  his pockets in spite of the troopers admonition.  The trooper
also stated that Wagar turned away from him in a type of fighting
posture.   The trooper stated that, because of these  actions  by
Wagar,  he  concluded that he was potentially ... at  risk.   The
trooper   frisked   Wagar  for  weapons.   He  ultimately   found
cocaine.12
          In upholding the troopers right to conduct the pat-down
search,  the  Alaska Supreme Court, relying on Terry  v.  Ohio,13
stated:
          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.[14]

The  Alaska Supreme Court held that the specific factors that the
trooper  set  out justified his performing a pat-down  search  of
Wagar.
          In  Brown  v.  State,15 a police officer  caught  Brown
walking  down the hall of a hotel carrying a portable  television
set  which  the officer suspected might have been stolen.   After
the  officer  asked Brown several questions, Brown  gave  evasive
answers.   The officer conducted a pat-down search of Brown.   We
upheld  the  pat-down  search  on the  ground  that  the  officer
reasonably suspected that Brown had recently committed a burglary
in  the  hotel from which he was taking the television  set.   We
concluded  that,  because the officer had a reasonable  suspicion
that  Brown was involved in a burglary, which was a felony  under
Alaska  law,  it  was  reasonable for him to  fear  that  someone
suspected  of  burglary  would  carry  a  weapon  and  resort  to
violence.16
          By  contrast,  in  Adams v. State,17 a  police  officer
contacted  two men (Adams and Linn) at night.  We summarized  the
situation  as follows: Adams and Linn were parked on a dead[-]end
street  at  night; the dead[-]end street was near a grade  school
that  had been frequently vandalized; when questioned, Adams  and
Linn  gave  apparently  conflicting accounts  of  why  they  were
stopped in the area.18  The officer stated that Adams appeared to
be  very nervous when he questioned him.  The officer also stated
that  Adams  was constantly taking his hands in and  out  of  his
pockets.   But the officer conceded that it was cold outside  and
that  he  had  never asked Adams to keep his  hands  out  of  his
pockets.   We  concluded  that  the  officer  had  not  given   a
convincing  reason  why  he  thought Adams  might  be  armed  and
dangerous and held that the officer had no basis to conduct a pat-
down search.19
          Admittedly,  Adams is distinguishable from the  present
          case.  In Adams, the officer was merely investigating possible
criminal activity, and one of the questions before us was whether
the  officer  had a sufficient basis to conduct an  investigative
stop.  Here, the officer was justified in stopping Schroeder  and
had  probable  cause to cite Schroeder and Erickson  for  traffic
infractions.   However, the standard remains  that  in  order  to
conduct a pat-down search, the record must establish a reasonable
basis for the officer to conclude that the suspect might be armed
and dangerous.20   In this case, the record does not support such
a conclusion.
          There   was  simply  nothing  about  the  circumstances
surrounding  the offenses that Trooper Hazelaar was investigating
that  would  indicate that Erickson might be armed and dangerous.
We  are concerned that, if we authorized a pat-down search  under
these circumstances, the police would be authorized to conduct  a
pat-down  search  of  a  passenger who had committed  a  seatbelt
violation  where the passengers name did not appear in the  APSIN
database.  We believe that more is required and that the facts in
this case   that it was late, the officer was alone, and Erickson
acted surprised, hesitant, looked for exit points, appeared to be
under the influence of some drug, had no identification, and  was
accompanied  by a person on probation or parole   do  not  supply
sufficient reasons to justify the pat-down search.
          Our  concern  is  that  unless  strictly  regulated  by
courts,  pat-down searches may be used as a pretext to conduct  a
search for evidence.21
          We  accordingly  conclude that Judge Hopwood  erred  in
finding that Trooper Hazelaar was justified in conducting a  pat-
down search of Erickson.  The trial court has not determined what
evidence  must  be suppressed as a fruit of the illegal  pat-down
search   or  whether  Trooper  Hazelaar  would  inevitably   have
discovered  the  evidence  that led to Ericksons  convictions  by
observing  the black bag or purse lying in the snow next  to  the
car before he patted Erickson down.  Because these issues remain,
we remand to the trial court for further proceedings.
          REVERSED and REMANDED.


                    



                    





_______________________________
     1 AS 11.71.060(a)(1); AS 11.56.800(a)(1)(B)(i).

2  519  U.S.  408,  415,  117  S. Ct.  882,  137  L.  Ed.  2d  41
(1997).

3 Former AS 11.56.800(a)(1)(B)(i).

     4 AS 28.05.095(a)(2) and AS 28.05.099(a).

     5 See http://www.dps.state.ak.us/apsin/whatapsin.asp;
       http://www.dps.state.ak.us/apsin/histapsin.asp.

     6 Id.

     7 614 P.2d 1374, 1378 (Alaska 1980).

     8 Id. (internal citations omitted).

     9 4 W. LaFave, Search and Seizure  9.6(a) at 627-30 (4th ed.
2004) (citations omitted).

10   79 P.3d 644 (Alaska 2003).

     11   Id. at 646.

     12   Id.

     13   392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

     14   Wagar, 79 P.3d at 647 n.4 (citation omitted).

     15   684 P.2d 874 (Alaska App. 1984).

     16   Id. at 879.

     17   103 P.3d 908 (Alaska App. 2004).

     18   Id. at 911.

     19   Id.

     20   Id.

     21    State  v. G.B., 769 P.2d 452, 456 (Alaska App.  1989).
See also Adams, 103 P.3d at 911; Eldridge v. State, 848 P.2d 834,
838 (Alaska App. 1993).

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