Phillip Alexander Duty v. State of Alaska ( 2023 )

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
PHILLIP ALEXANDER DUTY,
Court of Appeals No. A-13041
Appellant, Trial Court No. 4FA-17-01203 CR
v.
OPINION
STATE OF ALASKA,
Appellee. No. 2750 — June 23, 2023
Appeal from the District Court, Fourth Judicial District,
Fairbanks, Ben A. Seekins, Judge.
Appearances: Michael Horowitz, Law Office of Michael
Horowitz, Kingsley, Michigan, under contract with the Office
of Public Advocacy, Anchorage, for the Appellant. Jessica R.
Haines, Assistant District Attorney, Fairbanks (initial brief),
Diane L. Wendlandt, Assistant Attorney General, Office of
Criminal Appeals, Anchorage (supplemental brief), and Treg R.
Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge WOLLENBERG.
Following a jury trial, Phillip Alexander Duty was convicted of fourth­
degree misconduct involving a controlled substance for possessing a vial of testosterone.1
A trooper discovered the testosterone after conducting a traffic stop of Duty for an
equipment violation. During the stop, the trooper asked Duty if there were any drugs in
the vehicle. Duty responded that he did not have any drugs in the vehicle. He then
volunteered that the trooper could search his vehicle, which led to the discovery of the
testosterone.
Duty moved to suppress evidence of the testosterone. Duty argued that the
trooper was precluded from asking him whether there were drugs in his vehicle, and that
these impermissible questions invalidated his subsequent consent to search. More
specifically, Duty argued that the trooper was required to possess reasonable suspicion
of imminent public danger or recent serious harm to persons or property before asking
about potential crimes unrelated to the underlying reason for the stop. The district court
denied Duty’s motion. Duty renews his claim on appeal.
For the reasons explained in this opinion, we conclude that the trooper was
permitted to ask Duty if there were drugs in his vehicle as long as the trooper possessed
reasonable suspicion of criminality. We further conclude that the trooper did, in fact,
possess reasonable suspicion of criminality. We therefore affirm the district court’s
denial of Duty’s motion to suppress.
Underlying facts
This case arose after Alaska State Trooper Trevor Howard stopped Duty
because the car he was driving was missing a front license plate and had a tail light that
was partially out. Trooper Howard approached the vehicle, and asked Duty, who was
1
Former AS 11.71.050(a)(4) (June 4, 2017) & AS 11.71.180(f)(26).
–2– 2750
driving the vehicle, for his license and vehicle registration. Howard did not inform Duty
of the basis for the traffic stop.
When Duty opened the glove compartment to retrieve the vehicle
registration, Howard saw a piece of tin foil, measuring approximately two inches by two
inches, in the glove compartment. Howard testified that, based on his experience, the foil
looked like a “bindle” (a folded piece of paper or foil used to transport drugs). Howard
asked Duty if he could look at the bindle, and Duty agreed. Howard examined the bindle
and found that it was neither burnt nor contained any narcotics. Howard later testified
that there were other “torn up . . . pieces of tin foil” in the vehicle, but he provided no
further details about this observation. Howard also testified that he had prior contacts
with Duty in which Duty had either burnt tin foil in his vehicle or “tooter straws” in his
pocket.2
Duty informed Howard that the vehicle belonged to his girlfriend, which
prompted Howard to ask a few questions about how long Duty and his girlfriend had
been dating. The following exchange then occurred, approximately two minutes after
Howard made initial contact with Duty:
Trooper: Okay. Anything illegal in the car, man, you
know about?
Duty: No.
Trooper: Are you sure?
Duty: Yeah.
Trooper: Okay. Anything in here that’s yours?
Duty: My jacket.
Trooper: Your jacket. Okay. You don’t have any
drugs in here, man, do you?
2
Howard testified that “tooter straws” are a method for inhaling powder narcotics.
–3– 2750
Duty: Oh no.
Trooper: Okay.
Duty: You can take a look.
Trooper: Can I?
Duty: Yeah.
Trooper Howard asked Duty to step out of the vehicle. Duty then asked
Howard, “What did I do?” In response, Howard told Duty that the vehicle was missing
a front license plate. During the subsequent search of the vehicle, Howard discovered
a vial of testosterone.
Duty filed a motion to suppress evidence of the testosterone. Duty argued
that the trooper lacked a sufficient basis for questioning Duty about whether there was
anything illegal in the vehicle, including drugs. Duty further argued that his consent to
search the vehicle was invalid in light of this impermissible questioning and the trooper’s
failure to inform Duty of the reason for the traffic stop.
The district court denied Duty’s motion to suppress. The court ruled that,
based on the officer’s observations and past experiences with Duty, the officer had
reasonable suspicion of drug possession and thus, a sufficient basis for questioning Duty
about the presence of drugs and requesting permission to search the vehicle.3 The court
further concluded that Duty’s consent to search the vehicle was voluntary and valid,
noting that Duty himself had offered to allow the officer to search the vehicle.
3
We note that, at the start of trial, the district court provided an alternative basis for
denying Duty’s motion to suppress — that the trooper actually had probable cause to believe
that Duty possessed drugs, based on the trooper’s discovery of the foil “bindle” and his prior
contacts with Duty, thereby justifying the trooper’s questioning. Neither party has discussed
this ruling, and we decline to address it in the absence of adversarial briefing. But arguably,
the court’s later ruling is an alternative ground for affirming Duty’s conviction.
–4– 2750
A jury subsequently convicted Duty of fourth-degree misconduct involving
a controlled substance for possessing the vial of testosterone.4 On appeal, Duty
challenges the court’s denial of his motion to suppress.
Why we conclude that the trooper had reasonable suspicion to ask Duty
about the presence of drugs in his vehicle
On appeal, Duty argues that the trooper was not permitted to ask him about
the presence of drugs in his vehicle, and that those questions invalidated Duty’s
subsequent consent to search by impermissibly expanding the scope of the stop. The
central legal question presented by this appeal is what level of suspicion was required for
the trooper to ask Duty whether he had “anything illegal in the car” or “any drugs in
here.” The State argues that the trooper needed only a reasonable suspicion of
criminality to deviate from the original focus of the stop. Duty argues that the trooper
was instead required to possess reasonable suspicion of imminent public danger or recent
serious harm.
The seminal Alaska case on the question of whether a police officer may
ask questions about potential crimes unrelated to the basis for the stop is Brown v. State.5
Brown was stopped for an equipment violation, but she was never informed of the reason
for the stop. The trooper took Brown’s license back to his patrol car and confirmed that
it was valid and that there were no outstanding warrants for her arrest; the trooper then
decided to issue Brown a warning. But rather than explaining the reason for the stop and
issuing a warning to Brown, the trooper instead asked for permission to search Brown’s
4
Former AS 11.71.050(a)(4) (June 4, 2017) & AS 11.71.180(f)(26).
5
Brown v. State, 182 P.3d 624 (Alaska App. 2008).
–5– 2750
vehicle for weapons and drugs. Brown acquiesced, and the trooper found a crack
cocaine pipe in Brown’s coat.6
On appeal, Brown argued that her encounter with the trooper was implicitly
coercive, and that her consent to search was therefore invalid. We agreed, and we
reversed the superior court’s denial of Brown’s motion to suppress.7
As we discussed at length in Brown, many courts, including the federal
courts, have concluded “that the mere asking of questions — even a question such as,
‘May I search you and your vehicle for drugs?’ — does not alter the duration or scope
of the intrusion upon a motorist’s freedom and privacy that normally accompanies a
traffic stop.”8 These courts have concluded:
[E]ven when there is no reason to suspect that the motorist is
carrying drugs, it is nevertheless proper for the officer to
question the motorist about drugs, and to request the
motorist’s permission to conduct a drug search, so long as the
officer’s questioning does not extend the duration of the
traffic stop beyond what would normally be required to
investigate and respond to the observed traffic infraction.[9]
These cases are premised on the assumption that “a motorist who does not wish to be
subjected to a search will refuse consent when the officer seeks permission to conduct
a search.”10
6
Id. at 624-25.
7
Id. at 634.
8
Id. at 625.
9
Id.10
Id. at 630.
–6– 2750
But we questioned the validity of this assumption and ultimately rejected
the approach taken by the federal courts, explaining that “the Alaska Constitution
imposes greater restrictions on a police officer’s authority to request a motorist’s
permission to conduct a search during a routine traffic stop.”11 We cited empirical
studies showing that motorists consent to vehicle searches more than ninety percent of
the time.12 We noted that this high rate of consent was inconsistent with the assumption
that a motorist will generally feel free to refuse consent: guilty drivers have no reason
to voluntarily consent to a search that will reveal their criminal activities, and innocent
drivers have no reason to consent to a search that will result in a substantial delay of their
travel. Quoting Justice Stevens, we stated that “[r]epeated decisions by ordinary citizens
to surrender [their self-interest] cannot satisfactorily be explained on any hypothesis
other than an assumption that they believed they had a legal duty to do so.”13
With this background in mind, we concluded that “an officer’s questions
about other potential crimes, and an officer’s requests for permission to conduct a search,
11
Id. at 626. We also noted that legal commentators had been widely critical of the
United States Supreme Court’s consent-search jurisprudence, and we stated that “[t]he Fourth
Amendment, as interpreted by the United States Supreme Court, and as applied by various
federal circuit courts and state courts, offers little protection to motorists in this situation.”
Id. at 632.
12
Id. at 630 (citing Illya D. Lichtenberg, Voluntary Consent or Obedience to Authority:
An Inquiry Into the “Consensual” Police-Citizen Encounter (1999) (Ph.D. dissertation,
Rutgers University) (study showing that consent was given ninety percent of the time when
officers requested to search a vehicle); State v. Carty, 790 A.2d 903, 910-11 (N.J. 2002)
(citing empirical studies showing that ninety-five percent of motorists consented to searches);
4 Wayne R. LaFave, Search and Seizure § 9.3(e), at 395 nn. 200-201 (4th ed. 2004)).
13
Id. at 631 (quoting Ohio v. Robinette, 519 U.S. 33, 48 (1996) (Stevens, J., dissenting)).
–7– 2750
are significant events under the search and seizure provision of the Alaska Constitution,
Article I, Section 14.”14
The principles and policy arguments articulated in Brown, as well as the
numerous scholarly sources we cited, clearly support the notion that an officer cannot ask
questions about other potential crimes, or ask for permission to search, unless the
officer’s questions are related to the basis for the stop or otherwise supported by a
reasonable suspicion of criminality.
But our actual holding in Brown was narrow: we held that “under the
circumstances presented in [Brown’s] case, the officer conducting the traffic stop was
prohibited from requesting Brown’s permission to conduct a search that was
(1) unrelated to the basis for the stop and (2) not otherwise supported by a reasonable
suspicion of criminality.”15 More specifically, we noted that the trooper had never
informed Brown of the reason for the stop or given her any indication that she was free
to go, even though the trooper had already decided to let her off with a warning. We
explained that because Brown “remained ignorant of the reason for the stop, she did not
know the basis for the trooper’s assertion of authority over her,” and therefore “even if
Brown had been fully conversant with search and seizure law, Brown had no way of
knowing if she had the right to refuse the trooper’s request[.]”16 We therefore concluded
that “[b]ecause Brown’s case presents a particularly egregious example of this police
practice, our holding in Brown’s case can be more narrow.”17
14
Id. at 626.
15
Id. (emphasis added).
16
Id. at 634.
17
Id.
–8– 2750
Brown’s narrow holding is consistent with the duty of courts to decide only
those cases presented to them, and to avoid enunciating broad principles of law when
doing so is not necessary to the case at bar. But this approach can also lead to confusion.
Because of our narrow holding in Brown, subsequent cases have declined to cite it for
the broader proposition its reasoning supports.18 It is therefore unclear whether, in
Alaska, an officer needs reasonable suspicion of criminality before asking whether there
is contraband in a vehicle.
But the reasoning of Brown is persuasive, and we therefore adopt as the
general rule that an officer conducting a traffic stop cannot ask questions about other
potential crimes, or ask for permission to search, unless the officer’s questions are either
related to the basis for the stop or otherwise supported by a reasonable suspicion of
criminality. This general rule will no doubt be refined through its continued application
to specific facts, and over time, we will have opportunities for additional clarification.
What matters, for present purposes, is that it is understood as the starting point for our
analysis, not as a narrow exception that only applies in cases of particularly egregious
police conduct.
Applying that general rule to Duty’s case, we conclude that the trooper
possessed reasonable suspicion of criminality when he asked Duty about the presence
of drugs in his vehicle. When Duty opened his glove compartment, the trooper could see
a small piece of foil. The trooper testified that, based on his experience, the foil looked
like a bindle used to transport drugs. The trooper also testified that he observed other
18
See, e.g., Murphy v. Anchorage, 2010 WL 986688, at *4 (Alaska App. Mar. 17, 2010)
(unpublished); Bostwick v. State, 2010 WL 668947, at *2-3 (Alaska App. Feb. 24, 2010)
(unpublished); Rogers v. State, 2020 WL 9174652, at *1 (Alaska App. Oct. 7, 2020)
(unpublished summary disposition); see also State v. Jenkins, 3 A.3d 806, 849-50 (Conn.
2010) (concluding that Brown’s narrow holding creates an “internal inconsistency in the
opinion” and “necessarily diminishes the persuasive value of the case”).
–9– 2750
pieces of foil in the car, and that he had previous interactions with Duty involving drug
paraphernalia. This information was sufficient to establish reasonable suspicion to ask
Duty if there were drugs in his vehicle.19
Duty points out that the trooper examined the bindle and found that it was
neither burnt nor contained any narcotics. He argues that any suspicion that may have
existed was therefore dispelled and the trooper could not ask any additional questions.
We disagree. The presence of the bindle and other foil in the car, combined with the
officer’s previous interactions with Duty, was sufficient to establish the reasonable
suspicion necessary to ask the minimally intrusive questions posed by the trooper.20
19
Cf. McGuire v. State, 70 P.3d 1114, 1116 (Alaska App. 2003) (concluding that an
officer’s pat-down of the defendant for weapons, during which the officer felt the outline of
a rectangular object that the officer suspected was a bindle, gave the officer “at least an
articulable suspicion” that the defendant possessed illegal drugs; thus, the officer was
permitted to ask the defendant what was in his pocket); Schraff v. State, 544 P.2d 834, 847
(Alaska 1975) (upholding the seizure and ensuing search of an aluminum foil “slip” partly
because of the officer’s “experience and unequivocal testimony regarding his recognition of
the contraband nature of the foil packet”); see also Duncan v. State, 178 P.3d 467, 470-71
(Alaska App. 2008) (holding that, while “an unexplained claim of a suspect’s criminal
reputation should not be credited when evaluating probable cause,” the officers’ personal
knowledge of the defendant from prior contacts — which involved suspicions of drug sales
— could properly be considered when determining whether probable cause existed to arrest
the defendant for selling drugs).
20
On appeal, Duty does not challenge the district court’s reliance on the officer’s
previous interactions with Duty to establish reasonable suspicion of criminality. Although
we need not directly address this issue, we note that the district court’s reliance on the
previous interactions appears broadly consistent with how our Court and other courts have
approached this issue. See Duncan, 178 P.3d at 471; 2 Wayne R. LaFave, Search and
Seizure § 3.2(d), at 89 & nn.196-98 (6th ed. 2020) (collecting cases discussing this issue, and
explaining that law enforcement officers may generally consider specific prior interactions
if they are relevant to the crime being investigated).
– 10 – 2750
But this analysis is insufficient to resolve Duty’s appeal, because Duty
argues that the trooper needed reasonable suspicion not merely of criminality, but of
imminent public danger or recent serious harm before he could ask about the presence
of drugs in the vehicle. We now address that argument.
Why we conclude that it was not necessary for the trooper to possess
reasonable suspicion of imminent public danger or recent serious harm
before asking Duty about the presence of drugs in the vehicle
In Terry v. Ohio, the United States Supreme Court held that a law
enforcement officer may initiate an investigative stop based on “reasonable suspicion”
of criminal activity — i.e., “specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant that intrusion.”21 Alaska applies
a higher test for initiating a valid investigative stop. Under the Alaska Supreme Court’s
decision in Coleman v. State, the police must possess “reasonable suspicion that
imminent public danger exists or [that] serious harm to persons or property has recently
occurred” in order to conduct an investigative stop.22
Duty argues that just as the heightened Coleman standard governs whether
an officer may initiate an investigative stop, the same heightened standard should govern
whether an officer can ask questions that expand the scope of a traffic stop. In other
words, Duty argues that the “reasonable suspicion of criminality” we discussed in Brown
should be viewed as incorporating the Coleman test.
This question matters in this case because we have previously held that
suspicion that a person possesses an illegal drug for personal use does not satisfy the
Coleman test — i.e., does not establish reasonable suspicion of imminent public danger
21
Terry v. Ohio, 392 U.S. 1, 21 (1968).
22
Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).
– 11 – 2750
or recent serious harm. In Pooley v. State, we upheld an investigative stop under
Coleman because we concluded that the facts known to the officers provided reasonable
suspicion that Pooley had just transported “substantial quantities of illegal drugs a long
distance for commercial purposes” — thus, constituting an imminent danger to public
safety.23 However, we distinguished the facts presented in Pooley from a situation in
which the police stop a person because they suspect that the person possesses only a
small quantity of an illegal drug for personal use.24 We noted that the latter situation
“rais[ed] the spectre” of stop-and-frisk procedures being misused and becoming “a
vehicle ‘for serious and unintended erosion of the protection of the Fourth
Amendment.’”25
Thus, in Joseph v. State, we held that an investigative stop of a man who
the officer suspected had just been publicly smoking marijuana was not justified because
“the public use of marijuana is not an ‘imminent public danger’ for purposes of the
Coleman rule.”26 Likewise, in Skjervem v. State, we held that a police officer’s
observation of a canister in the defendant’s vehicle that the officer suspected contained
a personal use amount of drugs did not provide a basis for continuing to detain the
defendant after the suspicions that led to the initial investigative stop appeared to have
23
Pooley v. State, 705 P.2d 1293, 1307 (Alaska App. 1985).
24
Id. at 1307 n.9.
25
Id. (second quote from Mattern v. State, 500 P.2d 228, 233 n.15 (Alaska 1972), which
in turn quotes Adams v. Williams, 407 U.S. 143, 153 (1972) (Brennan, J., dissenting)).
26
Joseph v. State, 145 P.3d 595, 598 (Alaska App. 2006). We also noted that because
any use of marijuana occurred outside the presence of the officer, the officer did not have
probable cause to arrest Joseph. Id. at 600-01.
– 12 – 2750
been resolved.27 In other words, the police could not initiate a new investigative stop
based on suspected personal drug use alone.
In this case, Duty asks us to hold that the limited expansion of the scope of
the stop at issue here (i.e., questions about whether Duty had anything illegal in the
vehicle) must be supported by the same level of suspicion needed to initiate an
investigative stop — suspicion of imminent public danger or recent serious harm — even
when the questions do not meaningfully extend the duration of the stop.28
27
Skjervem v. State, 215 P.3d 1101, 1106-07 (Alaska App. 2009) (Skjervem I). In
Skjervem, the police took the defendant into custody after suspecting he was involved in a
burglary. Although the evidence suggested that the officers quickly learned that no burglary
had occurred, the police did not immediately release the defendant; rather, the police kept
him in handcuffs and questioned him about the small canister in his car that they believed
was used to store small quantities of drugs. The defendant told the police that the canister
contained marijuana and consented to a search of his vehicle. We remanded Skjervem to the
superior court to determine when the police discovered there had been no burglary. This was
relevant because “[i]f the police continued to hold Skjervem in custody after the burglary
investigation was resolved, and if their only justification for this continued detention was the
observation of the small, gold-colored canister, then the continued detention of Skjervem was
illegal[.]” Id. at 1103-04, 1111.
28
We note that Duty briefly argues on appeal that his detention was longer than
necessary to accomplish the original purpose of the stop. This claim is raised cursorily and
was not ruled on by the district court. It is therefore waived. See Hagen v. Strobel, 353 P.3d
799, 805 (Alaska 2015) (“Where a point is given only a cursory statement in the argument
portion of a brief, the point will not be considered on appeal.” (citation omitted)); Hollstein
v. State, 175 P.3d 1288, 1290 (Alaska App. 2008) (stating that to preserve an issue for
appeal, a litigant must both raise an issue and obtain a ruling on that issue).
In any event, as best we can tell, Duty is claiming that the search, rather than the
officer’s questions about the presence of contraband, unreasonably extended the duration of
the stop. As we discuss later in this opinion, however, the search was based on Duty’s
voluntary consent, and Duty has failed to explain how an extension of a stop to conduct a
valid consent search would be unreasonable under either the Fourth Amendment of the
United States Constitution or Article I, Section 14 of the Alaska Constitution.
– 13 – 2750
We decline Duty’s request to extend Coleman in this manner. The primary
purpose of Coleman’s heightened test is to prevent pretextual stops.29 As we noted in
G.B. v. State, the Coleman rule derives from Justice Brennan’s dissent in Adams v.
Williams.30 In Adams, Justice Brennan — adopting Judge Friendly’s dissent in the
Second Circuit’s initial decision in the same case — expressed “the gravest hesitancy”
about extending Terry to possessory crimes because of the “danger that, instead of the
stop being the object and the protective frisk the incident thereto, the reverse will be
true.”31 As we explained in G.B., Justice Brennan perceived a high risk that stops based
solely on reasonable suspicion of possession “might simply be used as a pretext to
conduct searches for evidence” that would otherwise require probable cause — i.e., that
an officer would initiate a stop based on reasonable suspicion of drug possession,
knowing that the officer would likely be able to frisk the suspect for weapons (and thus
potentially obtain corroborating evidence of possession).32
29
See Coleman v. State, 553 P.2d 40, 45-47 & n.17 (Alaska 1976); State v. G.B.,
769 P.2d 452, 456 (Alaska App. 1989) (stating that Coleman’s “fundamental concern” was
“the risk that an investigative stop based on mere suspicion may be used as a pretext to
conduct a search for evidence”).
30
G.B., 769 P.2d at 454; see also Coleman, 553 P.2d at 45 n.17.
31
Adams v. Williams, 407 U.S. 143, 151 (1972) (Brennan, J., dissenting). The Second
Circuit initially upheld the validity of the stop — a ruling from which Judge Friendly
dissented. Williams v. Adams, 436 F.2d 30 (2d Cir. 1970). But upon rehearing en banc, the
Second Circuit reached the opposite result and granted relief, with little explanation.
Williams v. Adams, 441 F.2d 394 (2d Cir. 1971). The Supreme Court — with Justice
Brennan dissenting — ultimately agreed with the initial panel decision by the Second Circuit.
Adams, 407 U.S. 143.
32
G.B., 769 P.2d at 454; Adams, 407 U.S. at 153 (Brennan, J., dissenting) (stating that
applying Terry to crimes like narcotics possession “will have opened the sluicegates for
serious and unintended erosion of the protection of the Fourth Amendment” (quoting
(continued...)
– 14 – 2750
This is because, once an officer has lawfully initiated an investigative stop,
the officer may conduct a limited pat-down search for weapons if the officer reasonably
believes that the suspect is armed and dangerous.33 As we explained in Erickson v. State,
there are multiple situations that could justify a pat-down search for officer safety during
a lawful investigative stop — for example, “a characteristic bulge in the suspect’s
clothing,” or “observation of an object in the pocket which might be a weapon,” or “an
otherwise inexplicable failure to remove a hand from a pocket.”34 The Coleman rule was
designed to protect against pretextual stops in which an officer detains a person out of
an expectation that the officer will ultimately be able to conduct a pat-down search that
uncovers incriminating evidence.
But the risk of police engaging in such pretext to expand a stop, when a
stop has already justifiably occurred, is not high enough to warrant an extension of
Coleman’s unique prophylactic rule to these circumstances.35 At that point, a person has
already been subject to a valid police interference — and many of the justifications for
conducting a pat-down search for officer safety will be readily apparent to the officer.
32
(...continued)
Williams, 436 F.2d at 39 (Friendly, J., dissenting))); see also Albers v. State, 38 P.3d 540,
542 (Alaska App. 2001) (explaining that while pat-down searches are justified to ensure
officer safety, searches for evidence do not have the same justification, and thus require
probable cause).
33
Free v. State, 614 P.2d 1374, 1378 (Alaska 1980).
34
See Erickson v. State, 141 P.3d 356, 360-61 (quoting 4 Wayne R. LaFave, Search and
Seizure § 9.6(a), at 627-30 (4th ed. 2004)) (listing circumstances that could justify a pat-
down search based on officer safety concerns).
35
Indeed, in his dissent in Adams, Judge Friendly recognized that the risk of a pretextual
stop is lower when the officer directly observes that “criminal activity may be afoot.”
Adams, 436 F.2d at 39 (Friendly, J., dissenting).
– 15 – 2750
Authorizing an officer who has conducted a valid stop to ask questions
about the presence of contraband — only when reasonable suspicion to do so exists —
therefore does not raise the same heightened concerns about pretext that animated the
supreme court’s decision in Coleman. Indeed, in Skjervem, we implicitly recognized that
the police did not need a Coleman-level of suspicion in order to ask the defendant about
the canister or request an opportunity to search the canister, so long as the defendant was
still validly subject to an investigative detention pursuant to the initial investigation.36
And following remand proceedings, in Skjervem II, we upheld the trial court’s finding
that the initial investigation had not yet concluded when the officer asked Skjervem
about the canister in his vehicle — and thus, that Skjervem’s consent to the search of his
vehicle was not tainted by an illegal detention.37
Moreover, as we already noted, many jurisdictions allow police officers to
ask questions unrelated to the reason for the stop without requiring any reasonable
suspicion at all. By requiring reasonable suspicion of criminality before an officer may
ask questions about other crimes — a standard that we conclude strikes the appropriate
“balance between a person’s interest in immunity from police interference and the
community’s interest in law enforcement”38 — we are already more protective than many
other jurisdictions.
36
Skjervem v. State, 215 P.3d 1101, 1109 (Alaska App. 2009) (Skjervem I)
(acknowledging that, if the police still reasonably believed that they had interrupted a
burglary, “the continued detention of Skjervem would have been justified, and the police
could presumably question Skjervem and seek his consent for a search of his vehicle”).
37
Skjervem v. State, 2011 WL 4108186, at *2 (Alaska App. Sept. 14, 2011)
(unpublished) (Skjervem II).
38
Coleman v. State, 553 P.2d 40, 46-47 (Alaska 1976).
– 16 – 2750
We therefore decline Duty’s invitation to extend Coleman to an officer’s
limited questioning about other crimes during the course of a traffic stop that is already
in progress. Instead, we hold that such questions are permitted so long as they are
supported by reasonable suspicion of criminality and do not unreasonably extend the
duration of the stop.
Why we conclude that Duty’s consent to search was voluntary
As we noted at the beginning of our discussion, Duty’s central claim is that
his consent to search was involuntary. Duty’s arguments on this point largely rely on his
claim that the trooper was not allowed to ask whether there was anything illegal in the
car, and that those questions rendered the stop inherently coercive. As we have just
explained, those questions were permitted, and Duty’s argument on this point is therefore
without merit.
To the extent Duty is arguing that his consent was involuntary for some
other reason, we note that Duty volunteered that the officer could search his car on his
own initiative. As one court has aptly noted, “It is difficult to conceive of the consent
merely being an acquiescence to the commanding presence of the police when the idea
for the search originated with the persons being detained.”39 Indeed, the district court
stated that, after listening to the audio recording of the interaction between Duty and the
trooper, the court was left with the distinct impression that Duty agreed to the search
precisely because he did not think there were any drugs in the vehicle.
We see no error in the district court’s conclusion that Duty’s consent was
voluntary.
39
Doering v. State, 545 A.2d 1281, 1290 (Md. App. 1988); see also 4 Wayne R. LaFave,
Search and Seizure § 8.2(g), at 129 n.257 (6th ed. 2020) (collecting cases that have stated the
same).
– 17 – 2750
Conclusion
The judgment of the district court is AFFIRMED.
– 18 – 2750