Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before : COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.
Kristian Skjervem appeals his conviction for fourth-degree controlled substance misconduct (possession of cocaine). The issue on appeal is whether the evidence against Skjervem was the fruit of an unlawful search or seizure. For the reasons explained here, we conclude that we can not resolve this issue without further findings of fact. We
therefore remand this case to the superior court.
Overview of the facts underlying this case
Although the facts pertaining to the legality of the searches in this case must be described in some detail, the basic events underlying this case can be described in a few sentences:
Several Anchorage police officers were summoned to a residence on West 25th Avenue after a neighbor reported that a woman was breaking into the house. When the police arrived, they observed a woman trying to replace a window screen from inside the house. They also observed a car in the driveway; Skjervem was in the driver's seat of this car, and another man was in the front passenger seat.
The police took everyone into custody at gunpoint. A few minutes later, however, the owner of the house appeared on the scene and explained that there was no burglary. The woman was staying at the house with his permission, but she had left her key inside the house and then had locked herself out-which explained why she removed a window screen and entered the house through the window. As to Skjervem, he was there by complete coincidence: he was simply dropping off his passenger.
The issues presented in this appeal all arose because the police did not release Skjervem after their suspicions about the burglary were resolved.
A more detailed look at the searches and seizures in this case
When the police first arrived at the house and it appeared that a burglary was in progress, the officers ordered Skjervem and his passenger out of the car at gunpoint. The officers handcuffed Skjervem, patted him down for weapons (and found none), and then put him in one of the patrol cars. After about 15 minutes, Officer Robert Blanton removed Skjervem from this first patrol car and placed Skjervem in Blanton's own patrol car.
Skjervem remained in custody in Blanton's patrol car for another 10 or 15 minutes. Although the superior court made no express finding on this issue, there is substantial evidence suggesting that, during this time ( i.e., while Skjervem was sitting in handcuffs in Blanton's patrol car), the owner of the house showed up and explained that there was no burglary, and the police began to release the people whom they were holding in custody.
But instead of releasing Skjervem, the supervising officer at the scene-Sergeant Pablo Paiz-directed Officer Blanton to remove Skjervem from his (Blanton's) patrol car and bring him to Paiz, still in handcuffs.
According to Paiz's testimony, he directed Blanton to do this because he had looked into Skjervem's car and had seen a small, round, gold-colored canister on the front seat of the car. Paiz stated that this canister was " about the size you would make if you circled your ... thumb and index finger" . In other words, the canister was apparently shallow and a little bit larger in diameter than a quarter-similar to some popular lip balm containers. (Blanton testified that he, too, observed this canister on the front seat of Skjervem's car.)
The presence of this small, gold-colored canister made Paiz suspicious because, " [f]rom [his] experience, people [who] are involved with drugs will carry small quantities of drugs in these types of boxes" . Paiz believed that Skjervem might be using this small, gold-colored canister as a " stash box" , and he therefore wanted to question Skjervem about drugs Before releasing him from custody.
In a footnote to one of the superior court's written decisions in this case-the " Order re Motion for Reconsideration" dated September 12, 2006-the superior court declared that, in addition to the small, gold-colored canister, Sergeant Paiz also observed a green crack pipe and an associated push rod on the seat of Skjervem's vehicle. Somewhat curiously, however, the superior court did not rely on this fact as a justification for the officers' continued detention of Skjervem.
Moreover, it is debatable whether the record supports this finding of fact. It is true that, when Paiz first described these events,
his testimony suggested that he observed all of these items-not only the small, gold-colored canister, but also the crack pipe and the push rod-at the same time, from a vantage point outside of Skjervem's car. However, when Paiz was questioned further on this issue, he seems to have clarified that he had observed only the small, gold-colored canister at the time he began interrogating Skjervem-and that the other items were discovered later, hidden behind a backpack that was lying on the seat of Skjervem's car, when Paiz and another officer (Charles Robertson) entered the vehicle and searched it.
The testimony of Officers Blanton and Robertson corroborates this latter version of events. Blanton testified that when he looked into Skjervem's car (from the outside), he saw the small, gold-colored canister on the front seat, as well as a backpack and a cell phone, but he did not see any other items. Blanton further testified that he certainly would have made note of the crack pipe if he had seen it.
For his part, Officer Robertson testified that when he entered and searched Skjervem's car, he was not looking for drugs, but rather for weapons. According to Robertson, the search of the car took place after Skjervem had been questioned by Sergeant Paiz and had admitted that he was carrying a small amount of marijuana in the gold-colored canister. Robertson told the court that he was assigned to search Skjervem's car because the police were still considering releasing Skjervem at this point-" because [it was just a] little bit of marijuana" -and they wanted to make sure that there were no items in the car that might pose a threat to them once Skjervem was released.
For these reasons, we have serious doubts about the assertion in the superior court's footnote that Sergeant Paiz saw the crack pipe and the associated paraphernalia in plain view on the seat of Skjervem's car. But because we must send this case back to the superior court for a further finding on a different factual issue, we need not decide at present whether the assertion in the footnote is clearly erroneous.
Aside from the factual controversy that we have just described, there were also significant differences between the testimony given by Sergeant Paiz and the testimony given by Skjervem concerning what happened after Officer Blanton brought Skjervem over to Sergeant Paiz for questioning. However, for purposes of our decision, we will adhere to the version offered by Sergeant Paiz, because the superior court found Paiz's version to be more credible.
According to Sergeant Paiz, when Skjervem was brought to him for further questioning, Paiz asked Skjervem what was in the small, gold-colored canister, and Skjervem replied that the canister contained marijuana. Paiz also testified that he asked Skjervem if the officers could search his car, and Skjervem consented.
After receiving this consent, both Paiz and Officer Robertson searched Skjervem's vehicle. Their searches yielded two crack pipes, a push rod, and a battery-powered gram scale. Following the seizure of this drug paraphernalia, Paiz directed Blanton to search Skjervem's person again, this time more thoroughly. During this search, Blanton felt a lump in one of Skjervem's socks. When Blanton asked Skjervem what this was, Skjervem replied that it was crack cocaine.
The superior court's rulings
Superior Court Judge Phillip R. Volland suppressed Skjervem's two admissions of drug possession-his statement that the gold-colored canister contained marijuana, and his statement that the lump in his sock was a packet of cocaine-because Judge Volland concluded that these two statements were the products of custodial interrogation, and the police had not yet advised Skjervem of his Miranda rights. Nevertheless, Judge Volland ruled that the police lawfully found and seized the marijuana and the cocaine.
Judge Volland concluded that the police were initially justified in taking Skjervem into custody because of their reasonable belief that there was a burglary in progress, and that Skjervem might be connected to the burglary.
Judge Volland further ruled that, even after the police learned that there was no
burglary occurring, the police were justified in continuing to detain Skjervem because the officers observed the small, gold-colored canister-what Paiz described as a " stash box" -on the front seat of Skjervem's vehicle. The judge concluded that the presence of this small, gold-colored canister gave the police reasonable suspicion that Skjervem was in possession of a small quantity of an illicit drug.
Judge Volland next concluded that the search of Skjervem's vehicle was justified because Skjervem consented to this search. As already explained, this search yielded two crack pipes, a push rod, and a gram scale. Judge Volland ruled that the discovery of this drug paraphernalia gave the police probable cause to arrest Skjervem-and thus to search him again more thoroughly ( i.e., because they could now search him, incident to arrest, for evidence of drug possession as well as for weapons).
As we have explained, this renewed search led to the discovery of the packet of cocaine in Skjervem's sock. Although Judge Volland suppressed Skjervem's statement that this lump in his sock was a packet of cocaine, the judge concluded that the contents of the packet inevitably would have been revealed, given that the police were arresting Skjervem for possession ...