HIBPSHMAN v. STATE, A-9182 (Alaska App. 7-12-2006)

JAMES LEE HIBPSHMAN, Appellant v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-9182.Court of Appeals of Alaska.
July 12, 2006.

Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge. Trial Court No. 3AN-03-9874 CR.

Cynthia Strout, Anchorage, 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
STEWART, Judge.

On September 15, 2003, several Anchorage police officers went to a room at the Parkwood Inn registered to Jesse Longley to serve a warrant for Longley’s arrest. The police were also on the lookout for a cohort of Longley’s, Christopher Logan, because there was an outstanding warrant for Logan’s arrest. Ultimately, the officers did not arrest Longley or Logan. Instead, they arrested James Lee Hibpshman. Hibpshman appeals the denial of his motion to suppress evidence seized by the police. Because Hibpshman’s seizure was not illegal, we affirm the superior court.

Background facts

In the early morning hours of Sunday, September 14, 2003, Lorraine Angeles called the Anchorage police from a gas station/convenience store at the intersection of Tudor Road and Old Seward Highway, claiming that she had been threatened. Officer Kevin McDonald responded to the call.

Angeles told McDonald that she was from Soldotna, had traveled to Anchorage with Longley, and was staying with Longley at a nearby hotel. She did not want to tell McDonald which hotel because she was frightened of repercussions. Angeles reported that Logan, who was in the hotel room with Longley and others, had threatened to kill her if she told police about his drug activity and that she had seen Logan with a serrated-edge knife. Angeles’s friend, Nicole, who did not want to provide her last name to the officers because of her own fear of repercussions, arrived to drive Angeles away. Nicole told McDonald that the hotel was the Parkwood Inn and confirmed Logan’s and Longley’s names.

McDonald discovered Logan had a significant criminal history and an outstanding arrest warrant from Kenai for a parole violation on a burglary and robbery conviction. Longley had an outstanding warrant for his arrest on a Kenai driving while intoxicated conviction. Both Longley and Logan had similar descriptions: caucasian males in their mid-twenties with brown hair and medium builds, with Logan taller than Longley by a few inches.

On McDonald’s next shift, he, Officer Tyler Sutcliff, and other officers went to the Parkwood Inn to arrest Logan and Longley. McDonald checked with the front desk to confirm which room was registered to Longley.

The officers proceeded to that room. McDonald knocked and identified himself as hotel management, stating that complaints had been made about loud noise from the room. The officers heard voices inside, but there was no response to the knock. McDonald knocked again, and a male voice said, “we will turn down the clock radio.” McDonald responded that he needed to speak to the occupants.

A man (later identified as Jerry Coggle) opened the door, and Officer McDonald announced “Anchorage Police.” Coggle appeared to the officers to fit Logan’s description.

McDonald could see through the crack between the door and the doorframe that someone was hiding behind the door. Worried about safety, McDonald reached across the threshold, grabbed Coggle by the wrist, and pulled Coggle outside the door. Sutcliff drew his sidearm and asked who was behind the door. Neither Coggle nor the individual behind the door (Hibpshman) said anything. Hibpshman eventually stepped into the doorway. Hibpshman met the general descriptions for Logan and Longley.

Sutcliff holstered his sidearm and asked Hibpshman to step outside and put his hands behind his back. Hibpshman stepped out but acted like he would run. Sutcliff tried to get control of Hibpshman, but Hibpshman resisted. A third officer, Gregory Fisher, helped Sutcliff subdue Hibpshman. During the struggle, both Sutcliff and Fisher saw Hibpshman reach into his pocket and try to pull out a plastic baggie containing a white powdery substance. (A field test indicated that the powder was cocaine.)

After both Coggle and Hibpshman were handcuffed, the officers identified the two and learned for the first time that neither of the two was Logan or Longley. The officers entered the room for a safety check, removed two women who were in the room, and secured the room while they applied for a search warrant. The officers obtained a search warrant and discovered drug paraphernalia when they executed it.

The State charged Hibpshman with third-degree misconduct involving a controlled substance (possession of cocaine) and resisting arrest.[fn1]

Hibpshman moved to suppress evidence of the cocaine, arguing that the officers did not comply with Alaska’s “knock and announce” statute. He also argued that the police were not permitted to use a ruse, coupled with force, before searching him and should have identified him before using force. Superior Court Judge Philip R. Volland denied Hibpshman’s motion.

Hibpshman entered a Cooksey plea[fn2] to third degree misconduct involving a controlled substance and pleaded no contest to resisting or interfering with arrest. Hibpshman appeals the superior court’s denial of his motion to suppress.

Hibpshman advances two arguments in this appeal. First, Hibpshman argues that he was unlawfully seized by the police in violation of the Fourth Amendment of the U.S. Constitution and article 1, section 14 of the Alaska Constitution. Second, Hibpshman argues that the police did not comply with Alaska’s “knock and announce” statute.[fn3]

Hibpshman relies on Davenport v. State.[fn4] InDavenport, the Alaska Supreme Court announced that a “police officer may not enter a dwelling in search of a suspect for whom he has an arrest warrant unless, at a minimum, he has probable cause to believe the suspect is within.”[fn5] Davenport
preceded the decision of the United States Supreme Court inPayton v. New York,[fn6] a case in which the Court stated that, “for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.”[fn7]

The validity of the warrants for the arrest of Longley and Logan are not in question in this appeal. The question then, is whether the police had probable cause to believe that a subject of the warrant was in the Parkwood Inn; that is, whether the information developed by the officers established a fair probability or substantial chance that Longley or Logan was present in the room.[fn8]

Officer McDonald learned from his discussions with Angeles and Nicole that Logan and Longley were at the Parkwood Inn and that Logan in particular had engaged in drug activity in the room. McDonald’s records check showed that there were outstanding warrants for Longley and Logan. Later, when the officers arrived at the Parkwood Inn, they checked with the office and confirmed that Longley was still registered at the hotel. These facts supplied the officers with probable cause to believe that Longley was present in the room in which he was registered.

The officers were, therefore, authorized to enter the room to serve the warrant on Longley. When Coggle opened the door and the officers saw another person hiding behind the door, the officers had, as Judge Volland found, a “legitimate concern for officer safety” that justified the police to order Hibpshman to come out from behind the door. As Judge Volland also found, the officers had reason to believe that Coggle and Hibpshman were the two they expected would be in the room, Longley and Logan.

Hibpshman protests that the officers should have identified him first before seizing and handcuffing him. Officer McDonald did testify that his normal practice is to request identification before serving an arrest warrant, but Judge Volland found that the officers acted reasonably under the circumstances because the officers saw Hibpshman hiding behind the door and because of the reports McDonald had received from Angeles and Nicole.

We reject Hibpshman’s argument that he was subjected to an unconstitutional seizure.

Hibpshman also argues that the officers violated the “knock and announce” requirement. Alaska’s knock and announce rule is embodied in AS 12.25.100 and AS 12.35.040. The purposes behind the rule are to respect the privacy rights of individuals, to protect police serving warrants, and to minimize the potential destruction of property and the possibility of resistance if the police forcibly enter a structure without notice.[fn9]

Although the officers used a ruse to convince the occupants to open the door, the officers were in uniform and immediately announced their presence when Coggle opened the door. Under the circumstances, Judge Volland found that the officers had a legitimate concern for officer safety. Furthermore, Judge Volland found that the “knock and announce” requirement did not apply because the police did not use their authority under the warrants to force their way into the room. The officers knocked, and Coggle opened the door. We agree with Judge Volland’s conclusion that the “knock and announce” requirement did not apply in these circumstances.

Conclusion

The judgment of the superior court is AFFIRMED.

[fn1] AS 11.71.030(a)(1) AS 11.56.700(a)(1), respectively.

[fn2] Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).

[fn3] See AS 12.25.100.

[fn4] 568 P.2d 939 (Alaska 1977).

[fn5] Id. at 949.

[fn6] 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980).

[fn7] Id. at 603, 100 S. Ct. at 1388.

[fn8] See State v. Joubert, 20 P.3d 1115, 1119 (Alaska 2001).

[fn9] See Davis v. State, 525 P.2d 541, 544-45 (Alaska 1974).