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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA


ERIC SHERRON MCGUIRE,
                                                      Court of Appeals No. A-11268
                            Appellant,               Trial Court No. 3AN-10-6660 CR

                     v.
                                                              O P I N I O N
STATE OF ALASKA,

                            Appellee.                    No. 2603 — June 1, 2018


              Appeal from the Superior Court, Third Judicial District,
              Anchorage, Jack W. Smith, Judge.

              Appearances: Catherine Boruff, Assistant Public Defender, and
              Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
              Eric A. Ringsmuth, Assistant Attorney General, Office of
              Criminal Appeals, Anchorage, and Michael C. Geraghty,
              Attorney General, and James E. Cantor, Acting Attorney
              General, Juneau, for the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
              Superior Court Judge. *

              Judge MANNHEIMER.




   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
             Eric Sherron McGuire appeals his convictions for fourth- and sixth-degree
controlled substance misconduct. He asserts that the evidence against him was obtained
as a result of an unlawful pat-down search. For the reasons explained in this opinion, we
conclude that the evidence against McGuire was obtained lawfully, and we therefore
affirm his convictions.


       Underlying facts


             In May 2010, McGuire was stopped by the police because his vehicle had
studded tires after the May 1st seasonal deadline.
             The officer who made the traffic stop, Jon Butler, asked to see McGuire’s
driver’s license and proof of insurance. McGuire handed Butler a certificate of
insurance, and he told Butler that the insurance was current. But when Butler called
McGuire’s insurance company to verify that the insurance policy was in force, a
company representative told Butler that the policy had been canceled some three months
earlier.
             After receiving this information, Officer Butler decided to impound
McGuire’s vehicle.
             (As authority for impounding McGuire’s vehicle, Butler relied on
Anchorage Municipal Code § 09.28.026.A. This ordinance gave police officers the
authority, at their discretion, and without a court order, to impound the motor vehicle of
any person who was arrested for driving without having vehicle insurance. In Taha v.
State, 366 P.3d 544 (Alaska App. 2016), we declared this ordinance unconstitutional.
However, McGuire never sought suppression of the evidence against him on the theory
that the impoundment of his vehicle was illegal.)



                                          –2–                                        2603

              Because McGuire’s vehicle was going to be impounded, McGuire and his
passenger were ordered to step out of the vehicle. Butler also summoned a backup
officer to the scene.
              While Butler, McGuire, and his passenger were waiting at the scene,
McGuire called his brother-in-law for a ride. Officer Butler assured McGuire that his
brother-in-law would be allowed to remain at the scene while the police were processing
McGuire’s vehicle, and that McGuire was not going to be arrested — that he would be
allowed to leave with his brother-in-law when their encounter was done.
              (McGuire’s brother-in-law arrived at the scene at approximately the same
time as the backup officer.)
              After Officer Butler asked McGuire to get out of his vehicle, Butler asked
McGuire if he was carrying any weapons. McGuire answered that he was carrying a
pocket knife in his right-front pants pocket. Butler asked McGuire for permission to take
possession of this pocket knife until their encounter was over. McGuire agreed to this.
Butler then patted McGuire’s pocket to locate the knife.
              During this pat-down, and before Butler located the pocket knife, Butler
encountered an object in McGuire’s pocket that felt like a marijuana pipe. Butler asked
McGuire if the object was, in fact, a marijuana pipe. McGuire admitted that it was. At
that point, Butler reached into McGuire’s pocket and removed the pipe. Butler saw that
the pipe contained unsmoked marijuana in its bowl. After removing this pipe, Butler
removed the pocket knife from McGuire’s pocket.
              Butler then conducted a pat-down search of McGuire’s remaining pockets.
During this continued search, Butler felt an object that appeared to be a syringe in
McGuire’s back pocket. Before removing this syringe, Butler asked McGuire if he had
any other drugs or drug paraphernalia on his person. McGuire admitted that he had a



                                          –3–                                       2603

plastic container of marijuana in one of his other pockets. Butler then removed the
syringe and the plastic container of marijuana.
               When Butler asked McGuire what the syringe was doing in his back pocket,
McGuire replied that he “like[d] to have some fun from time to time”, and that he used
the syringe to inject himself with liquified Dilaudid.
               Butler then engaged McGuire in further conversation about his drug use,
and he asked McGuire whether there were any other drugs in his car. McGuire told
Butler that there was a jar containing one ounce of marijuana behind the driver’s seat,
and that the car also contained another half-ounce of marijuana in individual packages,
which McGuire was planning to sell.
               At this point, McGuire’s car was seized as evidence, and it was transported
to a secure police facility. Butler later applied for a search warrant (to authorize the
police to conduct a more thorough search than would otherwise be authorized pursuant
to an impoundment). The warrant was issued, and the ensuing search of McGuire’s car
yielded the one and a half ounces of marijuana that McGuire had described, plus one pill
of morphine.
               The police also obtained a warrant to seize and search McGuire’s mobile
phones. These phones contained text messages that revealed McGuire’s involvement in
marijuana sales.
               Based on this episode, McGuire was indicted on two counts of fourth-
degree controlled substance misconduct — one count for possessing morphine, and the
other count for possessing one ounce or more of marijuana with intent to distribute it.
By information, the State added a misdemeanor charge of sixth-degree controlled
substance misconduct (simple possession of marijuana).




                                           –4–                                       2603

       The litigation of McGuire’s suppression motion


             Following his indictment, McGuire asked the superior court to suppress
most of the evidence against him. McGuire alleged that Officer Butler violated his rights
under the Fourth Amendment when, after Butler retrieved the pocket knife, Butler
continued to pat down McGuire’s other pockets. McGuire also alleged that Officer
Butler violated his Fifth Amendment rights by subjecting him to custodial interrogation
without giving him the warnings required by Miranda v. Arizona. 1
             The superior court upheld the pat-down search, but the court agreed with
McGuire that, by the latter stages of the encounter, McGuire was in custody for Miranda
purposes. The court therefore suppressed some of McGuire’s statements to Butler.
However, the court ruled that the remaining evidence was admissible — i.e., all the
physical evidence discovered during the pat-down of McGuire’s pockets, plus the self-
incriminatory statements that McGuire made during the earlier portions of the encounter.
             Having upheld the admissibility of this evidence, the superior court then
upheld the search warrants for McGuire’s vehicle and his mobile phones.
             Following a jury trial, McGuire was convicted of all three drug charges.


       Summary of our analysis


             The State argues that Officer Butler’s search of McGuire’s pockets was a
permissible pat-down search for weapons during an investigative stop, as authorized by
Terry v. Ohio. 2 For the reasons we are about to explain, we reject this contention.



   1
       384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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


                                          –5–                                       2603

               McGuire argues that Officer Butler’s pat-down of his pockets was strictly
prohibited by the United States Supreme Court’s decision in Knowles v. Iowa. 3 For the
reasons explained in this opinion, we reject this contention as well.
               We instead conclude that McGuire’s case presents a situation that is not
addressed in Knowles: an instance where, during a routine traffic stop, (1) the police
discover probable cause to arrest the motorist for another offense, and (2) this other
offense is the type of crime where it is reasonable to suspect that the motorist may be
carrying evidence of the crime on their person.
               The question we must answer is this: When, as in McGuire’s case, the
motorist’s other offense is within the category of offenses where the officer has the
discretion to issue a summons rather than make an arrest, and when the officer decides
to issue a summons rather than make an arrest, may the officer nevertheless conduct a
pat-down search of the motorist’s outer clothing for evidence of the other crime before
allowing the motorist to depart?
               For the reasons explained in this opinion, we conclude that the answer is
“yes”.


         The State’s argument that Officer Butler could continue to search
         McGuire’s pockets because the officer reasonably believed that McGuire
         was armed and dangerous


               On appeal, the State argues that Officer Butler had reason to believe that
McGuire was armed and dangerous, and thus the officer was authorized to search all of
McGuire’s pockets for weapons.




   3
         525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998).

                                           –6–                                      2603

              We have reviewed the record, and it does not support the State’s contention.
Officer Butler had no articulable reason to believe that McGuire was dangerous. As
Butler conceded at the evidentiary hearing in the superior court, McGuire was calm
during the entire encounter, and he did nothing aggressive or antagonistic — nothing to
make Butler suspect that he was dangerous. Moreover, Butler continued his pat-down
search of McGuire’s pockets even after he had taken possession of McGuire’s knife —
that is, when Butler had no articulable reason to believe that McGuire was armed.
              To justify a continued pat-down search of McGuire’s pockets under the
rationale of officer safety, the State had to show that the circumstances of Butler’s
encounter with McGuire gave Butler reason to believe that McGuire was armed and
dangerous (as that phrase is defined for purposes of Terry v. Ohio). In other words, the
circumstances must have disclosed (1) a significant possibility that McGuire might want
to harm Butler or his backup officer, and (2) a significant possibility that McGuire was
still carrying something in his pockets that McGuire could use to inflict bodily harm on
the officers — something other than the pocket knife that McGuire had already
voluntarily disclosed, and that Butler had already secured. 4
              The State argues that this foundation was established because McGuire lied
twice to Officer Butler. (McGuire lied when he told Butler that his vehicle insurance was
currently in force, and then he lied when he told Butler that there were no other objects
in his pockets besides the pocket knife.) Based on these two lies, plus the fact that
McGuire was carrying a pocket knife and a marijuana pipe, the State argues that Butler



   4
       See Wayne R.LaFave,Search and Seizure: A Treatise on the Fourth Amendment (5th
ed. 2012), § 9.6(a), Vol. 4, pp. 855-862 (discussing the required justification for pat-down
searches when the investigatory stop is not based on suspicion of an inherently dangerous
crime);W.Ringle,Searches and Seizures,Arrests and Confessions (2nded.1983),§13.6(a),
p. 13-42.2.

                                           –7–                                         2603

could reasonably conclude that there was a substantial possibility that McGuire was
armed and dangerous.
              We disagree. McGuire voluntarily disclosed his possession of the pocket
knife as soon as he was asked, and he readily consented to having Officer Butler take
control of the knife for the duration of their encounter. We note that the legislature has
singled out pocket knives as one of the weapons that a person need not immediately
disclose to a law enforcement officer (absent a request) during a police contact. 5 And
the State offers nothing to support its assertion that a person’s possession of a marijuana
pipe constitutes an affirmative indication that the person is dangerous.
              The State also notes that McGuire and the two other people at the scene
(McGuire’s passenger and McGuire’s brother-in-law) outnumbered the officers at the
scene three-to-two. But as we noted earlier, Officer Butler testified that McGuire was
calm during the entire encounter, and that McGuire did not say or do anything defensive
or aggressive.
              With regard to the presence of McGuire’s brother-in-law, we note that
Officer Butler explicitly allowed McGuire to call his brother-in-law to come give him
a ride, even though this would necessarily mean that there would be at least three people
at the scene who were aligned with McGuire’s interests (McGuire himself, his passenger,
and McGuire’s brother-in-law). Moreover, the backup officer testified that McGuire’s
brother-in-law readily complied with the officer’s directive to remain in his vehicle until
the officers’ encounter with McGuire was ended.
              And with regard to the activities of McGuire’s passenger, the record is
completely silent, other than the fact that this passenger complied with the officers’
directive to get out of McGuire’s car. Presumably, either Officer Butler or the backup


   5
       See AS 11.61.220(a)(1)(A).

                                           –8–                                        2603

officer (or both of them) would have said something during their testimony if McGuire’s
passenger had done anything to arouse their suspicions or to heighten their sense of
danger.
                 In short, we reject the State’s contention that the facts known to the police
justified a continued pat-down search of McGuire’s pockets under Terry v. Ohio after
Officer Butler secured the pocket knife and the marijuana pipe.


       Why we nevertheless conclude that it was lawful for Officer Butler to
       conduct a pat-down of McGuire’s other pockets after the officer secured
       the pocket knife


                 McGuire concedes that, because he gave permission for Officer Butler to
secure his pocket knife, it was lawful for Butler to pat down McGuire’s pocket to locate
and retrieve the knife. And McGuire does not challenge Butler’s discovery and seizure
of the marijuana pipe, which occurred while Butler was conducting the pat-down search
for the knife.
                 However, McGuire challenges Butler’s continued pat-down search of
McGuire’s other pockets — the pat-down search that Butler conducted after he located
and secured McGuire’s marijuana pipe and knife.
                 McGuire relies on Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142
L.Ed.2d 492 (1998), a case where the United States Supreme Court limited the scope of
a police officer’s authority to search a motorist during a routine traffic stop. In Knowles,
the Supreme Court held that even when an officer has probable cause to arrest a motorist
for violating the traffic laws, the officer cannot conduct a full search of the motorist’s
person — i.e., cannot conduct a “search incident to arrest” — unless the officer actually
arrests the motorist.


                                              –9–                                        2603

                The Supreme Court explained that, in instances where the motorist’s only
offense is a violation of the traffic laws, and where the officer simply issues a citation to
the motorist, the encounter is more akin to an investigative stop — i.e., a brief detention
of limited scope for a limited purpose. 6 This being so, the two traditional justifications
for a full search of an arrestee’s person do not apply. There will be no “extended
exposure” between the officer and the motorist (as would be the case when an officer
actually takes a person into custody and transports them to a police station or a
jail). 7 And for most traffic infractions, there will be no reason to believe that the
motorist is carrying evidence of the infraction on their person. 8
                For these reasons, the Supreme Court held in Knowles that the officer’s
authority to search a motorist’s person during a routine traffic stop is limited to the pat-
down searches for weapons authorized by Terry v. Ohio. 9 In other words, the officer can
pat down the motorist’s clothing for weapons if the officer has a reasonable suspicion
that the motorist is both armed and dangerous, but the officer cannot pat down the
motorist for evidence. 10


   6
        Knowles, 525 U.S. at 117, 119 S.Ct. at 488.
   7
        Ibid.
   8
        Id., 525 U.S. at 118-19, 119 S.Ct. at 488.
   9
        Ibid.
   10
      Terry, 392 U.S. at 21, 27, 30-31; 88 S.Ct. at 1879, 1883, 1884-85; Free v. State, 614
P.2d 1374, 1378 (Alaska 1980). See also Saepharn v. State, 355 P.3d 592, 595-96 (Alaska
App. 2015):

       “In [Minnesota v.] Dickerson, [508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334
   (1993)], the Supreme Court re-affirmed the principle that when the police conduct a
   pat-down search during an investigative stop, the purpose of the pat-down is to ensure
                                                                               (continued...)

                                            – 10 –                                      2603

              Based on Knowles, McGuire argues that Butler acted unlawfully when, after
retrieving the pocket knife from McGuire’s right-front pants pocket, Butler continued to
search McGuire’s other pockets.
              But the facts of Knowles are materially different from the facts of
McGuire’s case. Knowles involved a situation where the motorist’s only known crime
was a traffic offense, and where the officer had no reason to believe that the motorist was
carrying evidence of a crime on his person. McGuire’s traffic stop may have started out
as the same kind of “routine” traffic stop, in the sense that, initially, Officer Butler only
had probable cause to believe that McGuire had violated the traffic laws. But while
Butler was retrieving McGuire’s pocket knife, he lawfully discovered the marijuana pipe
(containing unsmoked marijuana) in McGuire’s pocket.
              McGuire’s possession of marijuana was a separate offense under Alaska’s
drug laws at the time (i.e., before the voters of Alaska legalized the possession of small
amounts of marijuana for personal use). And the discovery of the pipe and the marijuana
gave Butler an articulable reason to believe that McGuire might be carrying additional
evidence of a drug offense.
              Nevertheless, even though Butler’s discovery of the marijuana pipe and the
unsmoked marijuana gave Butler probable cause to arrest McGuire for possession of
marijuana, Butler did not arrest McGuire. Indeed, even after finding the marijuana,
Butler repeatedly assured McGuire that he was not going to arrest him. And Butler
continued to assure McGuire that he would be permitted to leave, even after McGuire



   10
       (...continued)
   officer safety, and the scope of this search must be limited to ‘[what] is necessary for
   the discovery of weapons’. Id., 508 U.S. at 373, 113 S.Ct. at 2136. It is unlawful for
   the police to expand the scope of the pat-down beyond this limit in an effort to
   discover evidence of a crime. Ibid.”

                                            – 11 –                                        2603

admitted that his car contained larger amounts of marijuana that were intended for sale.
True to his word, Butler released McGuire at the end of their encounter (after writing
him a summons).
              Thus, McGuire’s case presents the following facts: (1) During a routine
traffic stop, a police officer discovers probable cause to arrest the motorist for another
offense, and (2) this other offense is the type of crime where it is reasonable to suspect
that the motorist may be carrying evidence of the crime on their person, but (3) the
offense is within the category of offenses where the officer has the discretion to issue a
summons rather than make an arrest, 11 and (4) the officer decides to issue a summons to
the motorist rather than arrest them.
              The question we must decide is this: Under these facts, does the officer
have the authority to pat down the motorist’s outer clothing for evidence of this other
crime before issuing the summons and allowing the motorist to leave?
              Courts from other jurisdictions have struggled with this question, because
this fact situation falls within a grey area left in the wake of the Supreme Court’s
decision in Knowles. (See the lengthy discussion of this issue in Wayne R. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment (5th ed. 2012), § 5.2(h),
Vol. 3, pp. 171-79.)
              Knowles does not hold that full-blown searches of a motorist’s person are
never authorized unless the motorist is subjected to a custodial arrest. Rather, the
Knowles decision is more limited: the Supreme Court declared that a full-blown search
of a motorist’s person is not authorized when the motorist’s only known crime is a traffic
offense, and when there is no reason to believe that a search of the motorist’s person will
reveal evidence of this traffic offense.


   11
        See AS 12.25.180(a).

                                           – 12 –                                     2603

              Thus, the Knowles decision does not provide a direct answer to cases like
McGuire’s — cases where a routine traffic stop yields probable cause to support the
motorist’s arrest for another offense, and where there is reason to believe that the
motorist may be carrying evidence of this other offense on their person, but the police
officer still wishes to end the encounter by issuing a summons rather than making a
custodial arrest.
              We find ourselves in agreement with the approach taken by the Virginia
Supreme Court in Lovelace v. Commonwealth, 522 S.E.2d 856 (Va. 1999), where the
court held that, in these circumstances, a police officer can lawfully engage in measures
short of a full-blown search incident to arrest:

                      [Knowles holds that] the nature and duration of
              [a traffic stop] are significantly different and less threatening
              than in the case of an officer effecting a custodial arrest, [so]
              the rationales justifying a full field-type search are not
              sufficient to authorize such a search incident to the issuance
              of a citation. [But] when a police officer issues a citation or
              summons in lieu of a custodial arrest, the officer can
              nevertheless impose some further intrusions, consistent with
              the Fourth Amendment, if either historical rationale for the
              “search incident to arrest” exception is present [so long as]
              the scope of these further intrusions is limited to what is
              necessary to answer the concerns raised by the presence of
              either historical rationale. In other words, an encounter
              between a police officer and an individual that is similar to a
              routine traffic stop and results in the issuance of a citation or
              summons may involve some degree of danger to the officer
              or some need to preserve or discover evidence sufficient to
              warrant an additional intrusion, but it will not necessarily
              justify a full field-type search.

Lovelace, 522 S.E.2d at 859.


                                           – 13 –                                   2603

              McGuire’s case does not require us to delineate the outer limits of this
authority to search or to conduct other “intrusions”, because McGuire’s case involves
only the pat-down search of McGuire’s pockets.
              We hold that, because the officer had probable cause to arrest McGuire for
a drug offense, and because the officer had reason to believe that McGuire might have
other evidence of that offense in his clothing, the officer was authorized to conduct a pat-
down search of McGuire’s pockets — even though the officer had already decided that
he was going to issue a summons to McGuire and then allow him to leave.


       Conclusion


              The judgement of the superior court is AFFIRMED.




                                           – 14 –                                      2603

