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McGuire v. State

Court of Appeals of Alaska

June 1, 2018

ERIC SHERRON MCGUIRE, Appellant,
v.
STATE OF ALASKA, Appellee.

          Appeal from the Superior Court, Third Judicial District, Anchorage, Trial Court No. 3AN-10-6660 CR Jack W. Smith, Judge.

          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. [*]

          OPINION

          MANNHEIMER, JUDGE

         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.) 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 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 ajar 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).

         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 ...


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