HAYNES v. STATE, A-9080 (Alaska App. 6-20-2007)

JAMES B. HAYNES, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-9080.Court of Appeals of Alaska.
June 20, 2007.

Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge, Trial Court No. 4FA-04-959 Cr.

Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage (opening brief), and George J. Dozier Jr., Eagle River (reply brief), for the Appellant.

Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.

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

MEMORANDUM OPINION AND JUDGMENT
MANNHEIMER, Judge.

Alaska State Troopers served two arrest warrants on James B. Haynes, each commanding Haynes’s arrest for failure to appear. Preparatory to taking custody of Haynes, the troopers conducted a pat-down search of his clothing. During this search, the troopers pulled a clear plastic bag and two small closed containers from Haynes’s right-frontPage 2
pants pocket. The clear plastic bag contained a white powder that appeared to be cocaine. The troopers then opened the small containers and found that they contained crack cocaine. Based on these discoveries, Haynes was indicted for third-degree misconduct involving a controlled substance (possession of cocaine with intent to distribute).[fn1]

Following his indictment, Haynes asked the superior court to suppress the evidence of his drug possession, arguing that it was the fruit of an unlawful search. Superior Court Judge Mark I. Wood held an evidentiary hearing into the legality of the search — and, based on the testimony presented at that hearing, the judge denied Haynes’s motion to suppress. Judge Wood concluded that the troopers’ pat-down search of Haynes’s pockets was proper, and that the troopers’ act of removing and examining the contents of Haynes’s right-front pants pocket was justified by what the troopers felt during their initial pat-down of the pocket.

After Judge Wood upheld the search, Haynes entered a Cooksey plea to one count of fourth-degree controlled substance misconduct, preserving his right to challenge the superior court’s denial of his suppression motion.[fn2]

The testimony of Trooper Investigator Jesse L. Carson, viewed in the light most favorable to the State, provides sufficient justification for the search of Haynes’s pocket.

Carson testified that, when he patted Haynes’s pocket, he discovered that the pocket was tightly packed with several objects. The pocket was so full and stretched so tight that Carson was unable to tell exactly what was in the pocket. Carson stated that he was able to feel “a couple hard containers” in the pocket, and that he could hear thePage 3
rustle of what seemed to be a plastic bag, but he could not tell what else might be hidden in this hard, bulky mass. Carson testified that the bulk in Haynes’s pocket was large enough to conceal a knife.

Because Carson was unable to tell what was in Haynes’s pocket, he reached into the pocket and removed its contents. All of the items in the pocket came out together because they were “all kind of intertwined”. One of the items was a clear plastic bag containing a white powdery substance that appeared to be cocaine. The discovery of this white powder led the troopers to open the other containers from Haynes’s pocket, thus uncovering the crack cocaine.

This testimony, if believed, provides justification for the trooper’s decision to remove the items from Haynes’s right-front pants pocket. The troopers were about to take Haynes into custody on two arrest warrants. Accordingly, the troopers were authorized to pat Haynes down to see if he was carrying weapons.[fn3] Carson testified that Haynes’s pants pocket was stuffed full of items. The bulky mass in the pocket was packed so tightly that it was impossible to tell what was in the pocket, and the bulky mass was big enough to conceal a knife. Under such circumstances, the troopers would be authorized to remove this bulky mass from Haynes’s pocket for closer inspection.

And, if the troopers were authorized to remove the contents of the pocket for inspection, the lawfulness of their ensuing searches is apparent. The powder cocaine in the plastic bag was in plain view; this discovery provided probable cause to arrest Haynes for controlled substance misconduct. This, in turn, authorized the troopers to search the remaining containers taken from Haynes’s pocket for evidence of this crime.

But when Judge Wood issued his ruling upholding these searches, he misstated or mischaracterized Investigator Carson’s testimony.Page 4

During his initial summary of the testimony, Judge Wood correctly stated that Carson had testified about “[Haynes’s] tight pants, and the bulky pocket, and the hard objects [within the pocket]”. But then Judge Wood incorrectly stated that Carson had testified that “[the hard objects in the pocket] felt like weapons”. Carson did not, in fact, say this. Rather, as explained above, Carson testified that he could not tell whether the hard, bulky mass in the pocket contained a weapon.

A few moments later, when Judge Wood issued his ruling, he again incorrectly stated that Carson had testified that he could feel a hard object that appeared to be a weapon inside Haynes’s pocket:

The Court: [T]he testimony was [that the plastic bag was] entwined about, . . . or wrapped around, or with, the canisters. The canisters . . . were lumped together in the pocket, and it was a tight pocket, and this was a big object — you know, . . . it’s a big hard object.

Investigator Carson . . . thought [that] it could have been a pocket knife. . . . We don’t know how [the smaller objects were lying] in the pocket. We don’t know if they were end-to-end, which would make it longer . . . — almost three-and-a-half inches, if it was end-to-end. . . . Or whether they were perpendicular to one another . . . — where, again, it would have been almost three to three-and-a-half inches . . . long. It’s not like it [was] a tiny little hard object. This [was] a big hard object, and it [was] reasonable to conclude . . . that that could be suspicious for a weapon. [sic] And so, . . . [the trooper] had a right to remove that, to make sure that they were not a weapon. . . .

As we have already explained, if Carson’s testimony is credited, we agree that the troopers were authorized to remove the bulky mass from Haynes’s pocket and inspect it more closely. However, the justification for this act does not arise fromPage 5
Carson’s testimony that he could feel a hard object that appeared to be a weapon — for Carson gave no such testimony.

Rather, Carson testified that the bulky mass in Haynes’s pocket was so large and tightly packed that it could potentially have contained a weapon as big as a knife, and that it was impossible to ascertain the precise contents of this tightly packed, bulky mass without removing it from Haynes’s pocket.

Because of this discrepancy between Investigator Carson’s testimony and Judge Wood’s findings based on this testimony, we believe that the better course is to remand Haynes’s case to the superior court, directing Judge Wood to reconsider his ruling.

Judge Wood shall prepare supplemental findings and shall forward them to the parties and to this Court within 45 days. The parties shall then have 30 days to respond to the judge’s supplemental findings. After we have received the judge’s supplemental findings and the responses (if any) of the parties, we will renew our consideration of Haynes’s appeal.

This case is REMANDED to the superior court for the purpose just described.

[fn1] AS 11.71.030(a)(1). [fn2] See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974). [fn3] See Zehrung v. State, 569 P.2d 189, 199 n. 39 (Alaska 1977).

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