Joubert v. State

OPINION

STEWART, Judge.

Hurist Joubert appeals his conviction for third-degree misconduct involving a controlled substance.¹ He maintains that the police illegally seized cocaine during a pat-down search. We conclude that the seizure of the cocaine was impermissible and reverse.

Facts and proceedings

In October of 1995, Joubert was on parole supervision for a 1989 felony case. One of Joubert’s parole conditions required him to inform his parole officer if he purchased or regularly drove a vehicle. Another condition required him to consent to a search requested by a parole officer.

On October 3,1995, a probation officer told Joubert’s parole officer, Stanley Shoop, that he had seen Joubert driving a red Cadillac and that the Cadillac had been reported stolen to the Anchorage Police Department. Shoop contacted APD and confirmed that the Cadillac in question was listed as a stolen car.

On the evening of October 4, 1995, Shoop drove to Joubert’s apartment. The red Cadillac was parked outside. After reconfirming with APD dispatch that the car was listed as a stolen vehicle, Shoop requested assistance from APD. While Shoop was waiting for police to arrive, Joubert left his apartment, got into the Cadillac and started to drive away. Shoop blocked Joubert’s departure with his own car. Shoop ordered Joubert out of the Cadillac, handcuffed him, conducted a pat-down search for weapons, and placed Joubert in the caged back seat of Shoop’s car. Shoop told Joubert that he was not under arrest, but that Shoop was holding him pending a police investigation concerning the allegedly stolen car.

Joubert told Shoop he was the registered owner of the Cadillac and that title to the car was upstairs in his apartment. Joubert, however, had not reported ownership of the Cadillac to his parole officer. Joubert asked Shoop to remove the handcuffs so he could prove ownership, but Shoop refused..

Anchorage Police Officers Philip Kantor and Mitch Kehr arrived on the scene. Shoop told the officers that he had searched and handcuffed Joubert and that Joubert claimed that the title to the Cadillac was in his apartment. One officer radioed APD dispatch and received confirmation that the Cadillac was reported stolen.

Officer Kantor removed Joubert from Shoop’s car and replaced Shoop’s handcuffs with his own set, cuffing Joubert’s hands behind his back. Officer Kantor conducted his own pat-down search of Joubert. Kantor felt something small and hard in Joubert’s right front pants pocket area. Officer Kan-tor could not identify the item but suspected it could be a small weapon. Kantor lifted Joubert’s sweatshirt to look in the right front pocket area. He saw what appeared to be a rock of crack cocaine, protruding from the right front watch pocket of Joubert’s jeans. Officer Kantor seized that first rock. He searched in the same pocket and found and seized a second rock of crack cocaine. Officer Kantor also found a velvet bag in a pocket of Joubert’s sweatshirt and removed it. A search of that bag revealed more rocks of cocaine. The police arrested Joubert for cocaine possession and theft of the Cadillac.

Despite reports that the Cadillac was stolen, the car was legally registered to Joubert. The State indicted Joubert for third-degree misconduct involving a controlled substance. Joubert moved to suppress the evidence found by Officer Kantor following his pat-down search.

Superior Court Judge Milton M. Souter held an evidentiary hearing. At the eviden-tiary hearing on Joubert’s motion, Officer Kantor testified as follows:

Q And when you got toward the area of his right pocket, you felt hard objects?

A Yes.

Q They were small?

A Yes.

Q Did you move your hands around the small objects to determine their size?

A No.

Q Did you place your hand on them and immediately determined they were small?

A I came up on the right side of his leg and when I came to the right top front pocket, I just felt something hard.

Q “Something hard.” Did it feel like a gun?

A No.

Q Did it feel like a knife?

A Don’t know. Razor blade, don’t know. Something small, don’t know.

Q Could you describe — it was small, was it round?

A Couldn’t tell.

Q Was it long? Did it have a length dimension?

A Well, it had a length dimension but it was small. All I can say is it was just small and hard.

Q And it protruded?

A It protruded enough for me to feel it.

Q And you were able to determine that by placing your hand over the object?

A On the outside of the pocket, yes.

Q On the outside of the pocket.

A Yes.

Q Did you move your hand at all?

A Probably. I don’t recall.

Q And did you feel that this object was an explosive in any way?

A I didn’t know — I don’t know. Probably not, but you never know.

Q You were concerned essentially that it was a razor blade?

A My concern essentially was that I didn’t know what it was.

Q In your experience, had you encountered razor blades in that area of ...

A Yes, I have.

Q Had you ever encountered anything of that dimension that was a weapon?

A Small little pocket knifes. Probably not that small.

Q So this felt smaller than a pocket knife?

A Than an average size — than a normal sized pocket knife that people carry, yes.

Q And Mr. Joubert’s hands are behind him?

A Yes.

Q Would he have been able to reach into that pocket?

A Probably not, but I’ve had people do some limber movements while they were in cuffs and be able to get to their front pockets in the past.

Judge Souter rejected Officer Kantor’s testimony that Kantor suspected a weapon when he felt what turned out to be the first rock of crack cocaine. Nevertheless, Judge Souter concluded that the search was justified as a parole search at the request of Parole Officer Shoop and denied Joubert’s motion to suppress.

At trial, the evidence established that Officer Kantor did not act at the request or at the direction of Shoop. In light of this evidence, Joubert moved Judge Souter to reconsider his ruling that the search of Joubert was justified as a parole search. Judge Souter reconsidered his ruling. As part of his reconsideration, Judge Souter examined the rocks of cocaine admitted into evidence at trial. Again, Judge Souter declined to suppress the evidence. As part of his decision, Judge Souter made the following findings:

[A]t the time of the suppression hearing, l'elying on what I saw and heard but without the opportunity to feel the evidence which is a big difference, I ruled that Officer Kantor’s stated suspicion that these two rocks of cocaine might be a small knife or razor was ludicrous. That’s wrong. Considering that the defendant was wearing jeans[,] that these two so-called rocks of cocaine were in his watch pocket and that they were also covered by the thickness of his sweatshirt, there is no doubt in my mind at this point after having myself felt these two rocks of cocaine, physically, for the first time, there’s no doubt in my mind that Officer Kantor’s suspicion that this might be a small knife or a razor blade was reasonable. That’s a reasonable suspicion based on articulable facts.

Joubert was convicted as charged and sentenced to a presumptive 6-year term.

Discussion

We assume for purposes of deciding this case that Officer Kantor was permitted to frisk Joubert for weapons. Joubert was handcuffed with his hands behind his back. If Joubert had been able to reach and retrieve whatever was in his front pocket, Jou-bert still faced superior police power and still had his hands cuffed behind his back. Officer Kantor testified that the small, hard object was not a gun. He did not testify that he actually suspected that the small, hard object was a weapon. He indicated that he did not know what the small, hard object was. Furthermore, nothing in the record suggests that there were any other potentially hostile threats to the safety of the officers in the vicinity that would have deflected their attention from Joubert. We conclude that in the circumstances of this case, the limited search for weapons authorized by Terry v. Ohio² and Coleman v. State³ did not justify Officer Kantor’s inspection of Joubert’s pocket area after he felt something small and hard.

This conclusion is favored by Professor LaFave in his treatise on Fourth Amendment search and seizure law.⁴ LaFave credits the decision of the California Supreme Court in People v. Collins⁵ with advancing the sensible consideration of what type of object could be employed as a weapon in the setting of the case. As Professor LaFave notes: “certain items which might be employed as weapons in a surprise attack from the rear would not be effective during the face-to-face encounter of a field interrogation.” ⁶ Therefore, we conclude that Officer Kantor’s additional intrusion which discovered the rocks of cocaine in Joubert’s pocket was not authorized by the limited search for weapons allowed during an investigative stop.

Next, we assume that the police officers were entitled to arrest Joubert for theft of the car. A search that precedes an arrest can be justified as incident to arrest as long as the fruits of the search are not required to establish probable cause for the search.⁷ Here, Joubert’s arrest for theft of the car and possession of cocaine followed Officer Kantor’s discovery of the cocaine. But we ruled above that Officer Kantor’s discovery of the cocaine following the pat-down search was not justified, so that evidence could not be used to establish probable cause for Jou-bert’s arrest for cocaine possession. Therefore, Officer Kantor was not authorized to search Joubert for evidence of cocaine possession.

Federal law permits a police officer to search all of the person and any possessions found upon the person incident to arrest.⁸ But Alaska law is more restrictive. In Zehrung v. State, the Supreme Court of Alaska held that a police officer may search a person incident to arrest only for weapons or for evidence of the crime for which the police arrested the person.⁹ Here, Officer Kantor testified that he was not searching Joubert for evidence of the theft of the Cadillac. Furthermore, the State has not argued that there could have been evidence on Joubert’s person that would have been evidence of a stolen vehicle. Therefore, we must determine under Alaska law whether the scope of Officer Kantor’s search that discovered the cocaine exceeded the permissible scope of a search for weapons incident to arrest.

We recognize that a search for weapons incident to arrest may be more intrusive than a pat-down search for weapons in an investigative stop. Following an arrest, a police officer and a defendant may be in contact for an extended period compared with the limited face-to-face contact during an investigatory stop. Still, we applied Zehrung in Jackson v. State to hold that a search for weapons incident to an arrest must be limited to an examination of articles that could hold a weapon of normal size unless a police officer has an articulable basis for suspicion that the arrestee is carrying an unusually small weapon.¹⁰

The record here contains Officer Kan-tor’s uncertainty about what may have been in Joubert’s pocket: “Don’t know. Razor blade, I don’t know. Something small, don’t know.... It could have been a small pocket knife. It could have been a typical razor or the sheathing that goes on top of a razor.” But the State did not present evidence that the police had an articulable suspicion that Joubert was armed with an atypical weapon as discussed in Jackson.

We conclude that the evidence in this record does not support a conclusion that the State presented an articulable suspicion that Joubert was armed with an atypical weapon! To the extent that Judge Souter’s findings during trial contradict our conclusion, we conclude that those findings are clearly erroneous. Because the State did not present sufficient evidence that Officer Kantor had an articulable suspicion that Joubert had an atypical weapon in his pocket, the superior court’s order denying the motion to suppress must be reversed.

Conclusion

The judgment of the superior court is REVERSED.

1 . AS 11.71.030(a)(1).

2 . 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

3 . 553 P.2d 40, 46 (Alaska 1976).

4 . See 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.5(c), at 276-80 (3d ed.1996).

5 . 1 Cal.3d 658, 83 Cal.Rptr. 179, 463 P.2d 403 (1970).

6 . LaFave, supra note 4, at 278.

7 . See Rawlings v. Kentucky, 448 U.S. 98, 110-11, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).

8 . See United States v. Robinson, 414 U.S. 218, 235-36 (1973).

9 . See 569 P.2d 189, 199-200 (Alaska 1977).

10 . See 791 P.2d 1023, 1028 (Alaska App.1990).