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.
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. [*]
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.
2010, McGuire was stopped by the police because his vehicle
had studded tires after the May 1st seasonal deadline.
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.
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.
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.)
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.
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
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.
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.
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
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.
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
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).
litigation of McGuire 's suppression motion
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.
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
upheld the admissibility of this evidence, the superior court
then upheld the search warrants for ...