Opinion
Court of Appeals No. A-9767.
June 4, 2008.
Appeal from the Superior Court, Third Judicial District, Kenai, Charles T. Huguelet and David S. Landry, Judges. Trial Court No. 3KN-05-121 CR.
Sharon Barr, Assistant Public Defender, and Q uinlan Steiner, Public Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, 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 Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Jack M. Horsley was convicted of misconduct involving a controlled substance in the third degree for possessing cocaine with the intent to manufacture or deliver it and of violating his conditions of release from a felony for possessing the cocaine. On appeal, Horsley argues that Superior Court Judge Charles T. Huguelet erred in denying his motion to suppress. Horsley's motion to suppress was based on his contention that the evidence the State used to convict him was the product of an illegal stop. We conclude that the police lawfully obtained the cocaine after observing it in plain view.
AS 11.71.030(a)(1).
AS 11.56.757.
Horsley also contends that acting Superior Court Judge David S. Landry, who conducted Horsley's trial, committed reversible error by giving an erroneous jury instruction defining constructive possession. We conclude that the jury did not decide the case based on the theory of constructive possession. Therefore, any possible error in the jury instruction was harmless.
The hearing on the motion to suppress
At the evidentiary hearing on Horsley's motion to suppress, Kenai Police Officer Casey Hershberger testified that he was on patrol at 4:15 a.m. on January 15, 2005, when he saw a car idling in the parking lot of the Toyon Villa apartment complex in Kenai. Hershberger testified that Toyon Villa is a place where there is a fair amount of drug activity. In the passenger seat of the car, Hershberger saw an individual "kind of hanging [his] head, looking at something in [his] hand." Hershberger could not tell whether the person in the car was conscious or unconscious.
Hershberger testified that he parked his car approximately thirty feet behind the vehicle, leaving sufficient space for the vehicle to exit the parking lot. He did not block the exit to the parking area or activate his emergency lights. Hershberger could not remember whether he activated his spotlight but testified that the area was illuminated and it was very possible that he did not activate it. (Judge Huguelet found that Hershberger did not illuminate the car with his spotlight.)
Once Hershberger parked his vehicle, he could see that there was also someone in the driver's seat of the car. Hershberger approached the driver's side of the car. As he approached, he noted that the occupants were both making suspicious darting movements, "sliding back and forth in the car." Hershberger recognized the driver as Savanna Enix, someone he had contacted many times in the past. Hershberger asked "how they were doing or if everything was okay, or something to that effect." The occupants replied that everything was fine.
Hershberger, who was unaware that Enix owned a car, asked Enix if it was her vehicle. She replied that it belonged to a friend of hers. Hershberger asked to see her driver's license, registration, and proof of insurance. Hershberger testified that Enix appeared nervous but smiled.
At this point, the passenger, who was later determined to be Horsley, drew Hershberger's attention with his odd behavior. "He was kind of sliding down in his chair . . . moving his arm and glancing down at his hand . . . like he was definitely trying to conceal something ." Hershberger then sp otted a small plastic bag sitting on the console w ith little red hearts on it; the bag was transparent and Hershberger could see that the bag contained a white powdery substance. Hershberger testified that from his training and experience he suspected the package contained methamphetamine or cocaine. Hershberger called for a backup officer, ordered the occupants of the car to put their hands on the dashboard and the steering wheel, and ordered Enix to hand him the bag. Hershberger estimated that the entire contact took only one minute before he spotted the drugs and called for backup. The white powder later tested positive for cocaine.
Hershberger was the only witness to testify at the evidentiary hearing. Judge Huguelet denied the motion to suppress, concluding that "the stop was not investigatory and that it was more in the nature of a welfare check, until the cocaine was spotted."
The evidence presented at trial
Savanna Enix testified as a witness for the State as part of an agreement that she would testify against Horsley. Enix testified that on the morning of January 15 she was acting as a driver for Horsley. She testified that she believed the car was Horsley's car. Enix stated that, when they arrived at the Toyon Villa apartment complex, she used her money and Horsley's money, which he had given to her, to purchase cocaine. When Hershberger approached Enix, she and Horsley were in the process of getting high. She testified that the drugs belonged to both her and Horsley.
As Hershberger approached the car, Enix put syringes, a spoon, and drugs in the driver's side door. She testified that there were quite a few syringes in the car and that they belonged to Horsley and her. The only drugs she was aware of that were in the car was the cocaine she had just bought.
Officer Mitchell E. Langseth of the Kenai Police Department testified that he conducted a search of the vehicle under the authority of a search warrant. He testified that he found bags containing white powder, prescription bottles containing clear liquid, syringes filled with clear liquid, spoons with white residue, and a scale. Officer Langseth identified and described the bags, one of w hich he found in the driver's side door: "These are about one inch square, similar to a sandwich baggie that you would put a sandwich in, only smaller. They have little red hearts kind of stamped throughout and they have a white powder inside."
Langseth also testified that he found a spoon with white residue and burn marks and a syringe in the driver's side door. He testified that he found a prescription pill bottle containing a white powder in the forward console between the driver and passenger seats. H e also found another prescription pill bottle and heart-stamped bag with a little bit of cotton and maybe some white residue in a purse containing Enix's identification, which was located on the rear passenger-side floorboard.
He also found empty little bags and two unused syringes wedged between the front passenger seat and the cen ter console. There w ere seven or eight unused syringes and a box of baking soda in the center console between the two front seats. The officer testified that baking soda is mixed with drugs either to change the form of the drug so that it can be ingested or to dilute the drug for the purpose of sale. He also seized a scale from the trunk of the car.
Officer Hershberger testified that, when he approached the vehicle and asked Enix for her paperwork, he noticed Horsley "slumping down on the center console kind of glancing down and trying to conceal something with his left hand." He thought that Horsley identified the vehicle as his own; in any case, a records check indicated that the vehicle was registered to H orsley. Horsley was removed from the vehicle and Hershberger found approximately $500 in cash in Horsley's pocket. A criminalist at the Alaska Crime Laboratory testified that the bag Horsley was attempting to hide tested positive for cocaine.
The trial focused on whether the State proved beyond a reasonable doubt that Horsley knowingly possessed the cocaine with the intent to manufacture or deliver it. Judge Landry also instructed the jury on a lesser included offense — that Horsley had kno w ingly p ossessed the cocaine. H orsley argued that, just because he was in the car with the cocaine, the evidence did not show that the cocaine was his. He argued that all of the cocaine in the car belonged to Enix. And he argued that the evidence was insufficient to show that he possessed the cocaine, much less possessed it with the intent to manufacture or deliver. The jury convicted Horsley of the greater offense. Why we conclude that Judge Huguelet did not err in denying Horsley's motion to suppress
Under the facts of this case, we conclude that Officer Hershberger could lawfully approach the car to talk to Enix. "[N]ot all encounters between the police and private citizens are investigative stops amounting to seizures for Fourth Amendment purposes." For a seizure to occur, an officer must, by means of physical force or a show of authority, restrain the liberty of a citizen. In o ther words, "[a] person is `seized' w ithin the meaning of the Fourth Amendment only if, in light of all the circumstances, a reasonable person would believe that he or she was not free to leave or to break off the questioning." In Waring v. State, the Alaska Supreme Court stated:
Barrows v. State, 814 P.2d 1376, 1378 (Alaska App. 1991) (citing W aring v. State, 357, 363 (Alaska 1983)).
Id.
Id. at 1378-79 (citing Waring, 670 P.2d 364.
We recognize that upon being confronted by a police officer, the average person would feel an obligation to respond to the officer's questions and not to walk away. Such a confrontation, therefore, will amount to a seizure only if the officer added to those inherent pressures by engaging in conduct which a reasonable man would view as threatening or offensive even if coming from another private citizen. [T]he critical inquiry would be whether the policeman, although perhaps making inquiries which a private citizen would not be expected to make, has otherwise conducted himself in a manner consistent with what would be viewed as a non-offensive contact if it occurred between two ordinary citizens."
Id. at 364 (alteration in original) (internal quotations and citations omitted).
According to Professor Wayne R. LaFave in his treatise on search and seizure, "[T]he mere approach and questioning of [persons seated within parked vehicles] does not constitute a seizure." Officer conduct that "one would not expect if the encounter was between two private citizens — boxing the car in, approaching it on all sides by many officers, pointing a gun at the suspect and ordering him to place his hands on the steering wheel, or use of flashing lights as a show of authority — will likely convert the event into a Fourth Amendment seizure." In the present case, Hershberger parked thirty feet from the vehicle and approached on foot. He testified that there was room for the vehicle to depart and that he was not blocking the exit to the parking lot. Hershberger did not activate his overhead lights and did not activate his spotlight. He initiated the contact in a conversational manner by asking if everything was all right. None of this is indicative of an investigative stop.
4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.4(a) at 433 (4th ed. 2004).
Id. at 434-35.
Within a short period of time, from his position at Enix's car window, Hershberger saw the small plastic bag on the console that contained the white powdery substance, which Hershberger immediately suspected contained methamphetamine or cocaine. Hershberger therefore saw the cocaine in plain view from a place he was entitled to be.
See Reeves v. State, 599 P.2d 727, 739-42 (Alaska 1979).
It is true that Hershberger asked to see Enix's driver's license, vehicle registration, and proof of insurance. And arguably this show of authority converted the contact into an investigative stop. But the exclusionary rule extends only to evidence that the police discover by acting illegally. Even if we assume that Hershberger's request for Enix's driver's license, registration, and proof of insurance converted this encounter into an illegal stop, it does not change the fact that Hershberger saw the drugs in plain view from a position where he was entitled to be. His discovery of the drugs was unrelated to his asking Enix to produce her license, registration, and proof of insurance. We accordingly conclude that Hershberger, having seen what he had probable cause to believe was cocaine or methamphetamine in plain view, had authority to seize the bag that contained the drugs. We accordingly conclude that Judge Huguelet did not err in denying Horsley's motion to suppress.
Compare Barrows, 814 P.2d at 1379 (holding that appellant was not "seized"when an officer approached his van, questioned him briefly, and requested identification), with Ozhuwan v. State, 786 P.2d 918, 920-21 (Alaska App. 1990) (holding that an investigative stop occurred when a police officer's vehicle partially blocked the only exit to the area with its high-beam and overhead lights activated).
See, e.g., Erickson v. State, 507 P.2d 508, 516 (Alaska 1973) (citing Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963) ("It is well settled that the exclusionary rule renders inadmissible evidence obtained indirectly as a result of an unlawful search or seizure as well as evidence directly obtained thereby.").
Why we conclude that the jury instruction on constructive possession was not a factor in this case
As we have stated, Horsley was charged with possessing cocaine with the intent to manufacture or deliver it. He was also charged, as a lesser included offense, with simple possession of cocaine. Judge Landry instructed the jury that possession meant "having physical possession or the exercise of dominion or control over property." The instruction also defined constructive possession:
A person not in actual possession may have constructive possession of a thing. Constructive possession means to have the authority to exercise dominion or control over a thing. This may be done either directly or through another person or persons.
Horsley argues that the instruction on constructive possession allowed the jury to convict Horsley merely because he ow ned the car and therefore had authority over everything in the car, even if all the drugs belonged to Enix. But it seems clear that by finding Horsley possessed the drugs with the intent to manufacture or deliver them, the jury found that Horsley had dominion and control over the drugs. We therefore fail to see how the instruction on constructive possession could have had an impact on the jury's verdict in this case.
The judgment of the superior court is AFFIRMED.