Opinion
Court of Appeals No. A-9972.
September 14, 2011.
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge, Trial Court No. 3 AN-04-10353 CR.
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, Talis J. Colberg, Attorney General, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Kristian Skjervem was convicted of misconduct involving a controlled substance based on cocaine that the police discovered in his sock and in his vehicle. The police discovered this cocaine after Skjervem had been detained in connection with a burglary investigation. In a prior decision, we concluded that we needed additional findings of fact from the superior court in order to resolve this case.
Skjervem v. State, 215 P.3d 1101, 1111 (Alaska App. 2009).
We remanded the case to the superior court for findings of fact on two issues: (1) whether the police kept Skjervem in custody after the burglary investigation had concluded and (2) whether the police had already observed drug paraphernalia, including a crack pipe and a push rod (used to smoke crack), in plain view on the seat of Skjervem's vehicle. Superior Court Judge Philip R. Volland determined that the police were still investigating the burglary when they first talked to Skjervem about searching his car. Judge Volland also found that the police had observed the crack pipe and other drug paraphernalia in Skjervem's vehicle before they asked Skjervem for his consent to search the vehicle. Skjervem now argues that the superior court's findings on remand were clearly erroneous.
Id.
When w e review an order denying a motion to suppress, we view the record in the light most favorable to upholding a trial court's ruling. We reverse a trial court's findings of fact only if they are clearly erroneous — that is, only if we are left "with a definite and firm conviction that a mistake has been made." In this case, we affirm Judge Volland's findings because they are supported by substantial evidence.
Crawford v. State, 138 P.3d 254, 258 (Alaska 2006); State v. Campbell, 198 P.3d 1170, 1173 (Alaska App. 2008).
Majaev v. State, 223 P.3d 629, 631 (Alaska 2010) (quoting Cusack v. Cusack, 202 P.3d 1156, 1159 (Alaska 2009)).
See generally Murray v. State, 12 P.3d 784, 789 (Alaska App. 2000) (affirming the trial court's findings because they were supported by substantial evidence); Wilburn v. State, 816 P.2d 907, 911 (Alaska App. 1991) ("Reversal is proper only where there is no substantial evidence supporting the trial court's findings.").
In the trial court proceedings before our first opinion, Officer Arthur Anderson testified that he was one of the officers who first arrived at the residence after receiving a dispatch for a burglary in progress. He assisted in detaining a woman who was putting a screen back on one of the windows, and observed other officers detaining Skjervem and his passenger.
Sergeant Pablo Paiz testified that there were already a number of officers present when he arrived at the residence. He noticed a tan Ford vehicle (Skjervem's vehicle) in a parking space right in front of the residence. He tried to talk to the woman who had been detained, but she was too stressed to respond rationally. Then he went into the residence with several other officers to make sure that there was nobody else inside.
Paiz testified that the officers finished "clearing" the residence about seventeen minutes after he first arrived. At that point, Paiz went to look at the tan vehicle in front of the residence. He observed drug paraphernalia in the front seat and had another officer bring Skjervem over to the vehicle. Skjervem then agreed to let the police search his vehicle. The police found additional drug paraphernalia in the vehicle, as well as a battery operated scale. Paiz then directed another officer to conduct a thorough pat-down search of Skjervem, and the officer found a bundle of crack cocaine in Skjervem's sock. The police later secured a search warrant for the vehicle and discovered over seven grams of powder cocaine.
Officer Anderson testified that the owner of the residence, Steve Grizzell, arrived after the officers had cleared the residence, when the officers were at the "end stages of . . . clearing everything up." Anderson spoke with Grizzell, who confirmed that the people the police had detained at the residence had his permission to be there.
Paiz also testified that he was familiar with Grizzell. Grizzell was not present at the scene after Paiz cleared the residence. There was nothing in his report to indicate exactly when Grizzell arrived. But Paiz did recall that the burglary investigation was still underway when he walked out of the residence and that the burglary investigation was still underway shortly thereafter when he had Skjervem brought over to the vehicle.
On remand, Paiz clarified that he was not the officer who talked with Grizzell. He testified that he felt that he found out that Grizzell had confirmed that there was no burglary at the residence after he had required Skjervem to submit to the pat-down search.
After reviewing the evidence, Judge Volland found that the police w ere still investigating the burglary when Skjervem was first brought over to his vehicle to talk with Paiz.
Skjervem now argues that there is other evidence that calls Paiz's testimony into question. But it is not our role to weigh conflicting evidence when we determine whether a trial court's findings are clearly erroneous. It is sufficient to recognize that the testimony by Anderson and Paiz supports the judge's conclusion that Skjervem was validly detained as part of the burglary investigation w hen Paiz asked to search his vehicle. In other words, Skjervem's consent to the search of his vehicle was not tainted by an illegal detention.
AAA Valley Gravel, Inc. v. Totaro, 219 P.3d 153, 168 (Alaska 2009); see Register v. State, 71 P.3d 337, 341-42 (Alaska App. 2003).
Skjervem also contests Judge Volland's finding that Paiz saw the crack pipe and other drug paraphernalia before he asked Skjervem for his consent to search the vehicle. But again, there is also substantial record support for the judge's finding on this issue.
On direct examination, Paiz testified that after he came out of the residence he went over to look at the tan car. When he looked through the window, he could see a small round canister that he called a stash box. He could also see a backpack, a green crack pipe, two plastic lighters, a wallet, and a push rod. After he observed these items, Paiz asked to have Skjervem brought over to talk to him. Paiz asked Skjervem if the police could search his car, and Skjervem said that they could.
When specifically questioned about the small canister on cross-examination, Paiz confirmed that he could see that item when he first approached the car. Then the defense attorney began to ask about what Paiz had seen after he began to search the vehicle. The defense attorney asked, "[W]hat did you see specifically?" Paiz replied that he could see the backpack, the wallet, the stash box, and the crack pipe. He said that the backpack was "kind of off to the right side of . . . the steering wheel," and that the other items were "kind of behind the backpack."
The defense attorney asked, "So if you hadn't gone into the car and moved the backpack, you wouldn't have seen these things?" Paiz replied, "I don't think so." But he also confirmed his recollection that all of the items were on top of the front seat.
No one asked Paiz to clarify his ambiguous response. No one asked him to describe the exact position of the drug paraphernalia or his perspective when he had first looked into the car. More pertinently, no one asked Paiz to reconsider whether he had actually seen the drug paraphernalia before he talked to Skjervem. We do not read Paiz's response as an unequivocal concession that he had only observed the small canister and the backpack at the time he began to talk to Skjervem.
Again, it was the trial court's function to weigh the conflicting evidence on this issue and determine the credibility of the various witnesses. Paiz's testimony on direct examination was substantial evidence supporting Judge Volland's finding that "Paiz observed not only a `stash box,' but a backpack, two lighters, a wallet, a green crack pipe, and a [push rod] when he first looked into the window of Skjervem's vehicle." The superior court concluded that this observation gave Paiz probable cause to arrest Skjervem and to perform a search incident to that arrest.
AAA Valley Gravel, Inc., 219 P.3d at 168.
We agree with the trial court's conclusion. In addition to the authority of Skjerven's consent, Paiz was authorized to arrest Skjervem and require him to submit to a search based on the discovery of the crack pipe in the front seat of his vehicle. We therefore uphold Judge Volland's decision denying Skjervem's motion to suppress evidence.
See Dollison v. State, 5 P.3d 244, 246-47 (Alaska App. 2000); Snider v. State, 958 P.2d 1114, 1118 (Alaska App. 1998).
We AFFIRM the superior court's judgment.
Kristian Skjervem was convicted of fourth-degree controlled substance misconduct (possession of cocaine). In this appeal, he claims that the evidence against him was obtained as the result of an unlawful seizure of his person. I believe that this claim is well-founded.
In our previous decision in this case, Skjervem v. State, 215 P.3d 1101 (Alaska App. 2009), we described the basic facts of the case, and we concluded that we could not resolve the suppression issues until we obtained additional findings of fact from the superior court.
Specifically, we asked the superior court to determine whether the police kept Skjervem in custody even after they learned that their initial justification for restraining him — their suspicion that a residential burglary was occurring at a nearby residence — proved to be unfounded. Skjervem, 215 P.3d at 1111. In addition, if the police did indeed keep Skjervem in custody even after they learned that there was no burglary, we asked the superior court to determine whether the police had already observed drug paraphernalia (specifically, a crack pipe and an accompanying push-rod) in plain view on the seat of Skjervem's vehicle — an observation that would have provided an independent basis for keeping him in custody. Ibid.
O n remand, the superior court found that the burglary investigation w as still unresolved when the police first brought Skjervem, in handcuffs, to the supervising sergeant on the scene, Sgt. Pablo Paiz. Sgt. Paiz proceeded to interrogate Skjervem regarding his possession of controlled substances, and Paiz obtained Skjervem's permission to search his vehicle.
The superior court also found that, at the time Sgt. Paiz interrogated Skjervem about the drugs, Paiz had already observed the crack pipe and the push-rod in plain view on the seat of Skjervem's vehicle.
The parties have submitted supplemental briefs discussing the superior court's findings. Skjervem argues that both of the superior court's primary findings of fact are clearly erroneous. That is, Skjervem asserts that, even when the evidence is viewed in the light most favorable to the superior court's ruling, that evidence clearly shows that (1) all suspicions of burglary had already been resolved when Sgt. Paiz ordered his subordinate officer to bring the handcuffed Skjervem to him for interrogation, and (2) Sgt. Paiz had not yet observed the crack pipe and push-rod in Skjervem's vehicle when this interrogation took place.
Turning to the first issue — whether all suspicions of burglary had been resolved before Paiz interrogated Skjervem — the State's brief does not contain any discussion of the superior court's finding that the burglary investigation remained unresolved when Sgt. Paiz directed his subordinate officer to keep Skjervem in custody and to bring him to Paiz for interrogation. In other words, the State makes no attempt to justify the superior court's finding.
Despite the State's silence on this issue, this Court is still required to assess whether Skjervem has presented a meritorious challenge to the superior court's finding. (See Marks v. State, 49 6 P.2d 66, 67-68 (Alaska 1972), w here the supreme court held that even when the State expressly concedes error in a criminal case, an appellate court has a duty to independently assess the defendant's claim.) In Skjervem's case, the record shows that the superior court's finding is, indeed, clearly erroneous.
During the hearing on remand, Sgt. Paiz was questioned about whether the burglary investigation remained unresolved when he began his interrogation of Skjervem. Paiz repeatedly stated, "I don't know" or "I just don't know". Paiz finally told the court, "My feeling is [that the point where I found out that there was no burglary] may have been after [I asked another officer to search Skjervem again]. But I just don't know with any clarity."
Paiz had no better recollection of the timing of these events when he gave his original testimony on this issue. During the superior court's original evidentiary hearing, Paiz told the court that he could not remember whether the police had already contacted the owner of the house when Paiz began his interrogation of Skjervem. Paiz twice stated, "I don't remember the sequence [of events]." Just a few questions later, Paiz stated that he and the other officers had already "cleared" the residence — that is, they had already gone through the residence to make sure that there were no intruders inside — when Paiz directed his subordinate officer to bring Skjervem to him.
All of this strongly suggests that the burglary investigation was resolved before Paiz began his initial interrogation of Skjervem.
It is true that, at one point, Paiz declared that he directed his subordinate officer to bring Skjervem to him because the police were still investigating the burglary. But at an earlier point in that same examination, Paiz gave a different reason for wishing to interrogate Skjervem: Paiz declared that he decided to interrogate Skjervem (and to have his subordinate officer bring Skjervem to him for this purpose) because he had seen drug paraphernalia in Skjervem's car.
Moreover, after Paiz stated that he interrogated Skjervem as part of the still-unresolved burglary investigation, Skjervem's defense attorney pointed out (while cross-examining Paiz) that Paiz did not ask Skjervem any questions about the burglary:
Defense Attorney: And did you start asking him questions about the burglary?
Paiz: I don't think so.
Defense Attorney: So you're investigating a burglary, and that's the reason that [he is] still in custody, but you don't ask him any questions about a burglary?
Paiz: Well, that's because I had seen evidence of drug activity in his vehicle.
Defense Attorney: It says here [ i.e., in your report] that you saw a gold-colored round object in the driver's seat of the car.
Paiz: Yes.
Defense Attorney: Okay. And so, at that point, you [were] no longer investigating the burglary?
Paiz: Well, that's not true, either. But that doesn't mean that I'm not seeing what I'm seeing [in the car], and this is what I saw.
Defense Attorney: I understand that. But you just got through saying that you were there [at the scene] investigating a burglary, and that [the burglary investigation] is the reason why you didn't release Mr. Skjervem. . . .
Paiz: Yes.
Defense Attorney: Yes. But you don't ask him any questions about any burglary.
Paiz: No, I don't think so.
I further note that, at the original evidentiary hearing on this matter, two other officers who were there on the scene testified that Skjervem's interrogation occurred after the police suspicions of burglary were resolved.
Officer Charles Robertson (who was one of the first two officers on the scene) testified that the police spoke to the owner of the house and clarified that no burglary was taking place. The officers then began the process of releasing the people they had temporarily detained (when they thought that a burglary was occurring), and then the police observed the small canister in Skjervem's vehicle.
Officer Robert Blanton (the officer who was holding Skjervem in his patrol car as part of the burglary investigation) testified that the owner of the house arrived on the scene while Blanton was still holding Skjervem in his patrol car — that is, before Sgt. Paiz directed Blanton to bring Skjervem to him for interrogation. Blanton remembered sitting in his patrol car, listening to the police radio, and hearing someone announce that the "RO" of the house ( i.e., the registered owner) had arrived. In other words, the police had already spoken to the owner of the residence — and had assumedly clarified that no burglary w as occurring — before Paiz directed Blanton to pull Skjervem out of the patrol car and bring him to Paiz.
Based on the foregoing portions of the record, I conclude that the superior court's finding on this issue is clearly erroneous. True, there is some slight evidence to support a finding that the burglary investigation was still unresolved when Paiz directed Officer Blanton to keep Skjervem in custody, and to bring Skjervem to Paiz for interrogation. But the great weight of the evidence supports the conclusion that the burglary investigation had already been resolved before Paiz directed Blanton to bring Skjervem to him for interrogation. Viewing the evidence as a whole, I am firmly convinced that the superior court made a mistake on this issue, and I would reverse the superior court's finding.
See Geczy v. LaChappelle, 636 P.2d 604, 606 n. 6 (Alaska 1981), citing Mathis v. Meyeres, 574 P.2d 447, 449 (Alaska 1978) (holding that an appellate court should reverse a trial court's finding of fact only when the appellate court is left "with a definite and firm conviction [based] on the entire record that a mistake has been made, although there may be evidence to support the finding.").
The remaining issue is whether, at the time Sgt. Paiz began his interrogation of Skjervem, Paiz had already observed the crack pipe and push-rod in plain view on the seat of Skjervem's vehicle — thus providing an independent basis for Skjervem's continued detention and interrogation.
In its decision on this point, the superior court relied on Paiz's testimony at the original evidentiary hearing on June 10, 2005. At that June 10th evidentiary hearing, Paiz described how he was summoned to the scene of the suspected burglary, and that he assisted in "clearing" the residence to make sure there were no intruders. Paiz testified that, after this was accomplished, he walked over to Skjervem's vehicle and looked inside the vehicle through the window.
According to Paiz, he inspected Skjervem's vehicle because he had been told that the occupant of that car had attempted to flee from the scene. This turned out to be false. When Paiz was confronted with the fact that there was no indication in the dispatch log, or in any of the officers' reports, that Skjervem had attempted to run or had been uncooperative in any way, Paiz backed away from his initial assertion. Instead, he asserted that he had been informed that somebody (apparently, a woman) had tried to run from the scene. Paiz then added, "It was my understanding — and . . . I could be completely wrong — that somebody had run from the car before I [checked] the house [for intruders]." Paiz testified that, when he looked into Skjervem's car from the outside, he was able to see "a round canister, about the size that you would make if you circled your . . . thumb and index finger", sitting on the front seat of Skjervem's car. Paiz suspected that this small canister was a "stash box" — that is, a container that held a small amount of drugs. Paiz also testified that he saw "a backpack . . . on the front seat".
In addition, Paiz stated that "there was [also] . . . a crack pipe; it was green. . . . [And] two plastic [cigarette] lighters, like Bic lighters, and . . . a long, thin piece of wire that I know, from experience, is used as a push-rod to manipulate a . . . rock [of crack cocaine] inside a crack pipe," as well as a wallet. Although Paiz did not expressly assert that these latter items were plainly visible on the front seat of the car, Paiz implied as much — because he then testified that, having observed all of these items, he directed the other officers to bring him the person who had been operating the vehicle [ i.e., Skjervem], so that he could talk to this person.
Paiz's testimony on this subject was then interrupted by an interval of six months. The evidentiary hearing in Skjervem's case resumed on December 5, 2005, with Paiz still on the stand, and being cross-examined by Skjervem's attorney.
In his December 2005 testimony, when Paiz described why he directed Officer Blanton to maintain custody of Skjervem, and to bring Skjervem to him for questioning, Paiz referred only to his observation of the small canister and the backpack. Paiz made no mention of the crack pipe or the push-rod (or any of the other items).
At this point, Skjervem's attorney challenged Paiz's chronology of events. The defense attorney suggested that Paiz had actually directed Blanton to bring Skjervem over to Paiz for questioning before Paiz ever looked into Skjervem's vehicle. As shown by the following excerpt of the transcript, Paiz conceded that what the defense attorney was suggesting might indeed be true. Then Paiz suggested that he had seen the small canister (but no other objects) before he directed his subordinate officer to bring Skjervem over for questioning:
Defense Attorney: [W]hen you asked [for Skjervem] to be brought over to the car . . ., that was the first time that you had actually looked in the car? Is that your testimony? You hadn't looked in the car before Mr. Skjervem was brought over to the car?
Paiz: I — I don't know what the sequence [of events] is there. I don't know for sure now, ma'am.
Defense Attorney: Would it help you recollect the sequence of events to look at your police report? Do you write [your reports] in a sequential manner?
Paiz: I try to.
Defense Attorney: Well, your police report indicates that . . . when you left the residence [after "clearing" it], you asked that Mr. Skjervem . . . be brought over to the car?
Paiz: I see that [in my report]; yes, ma'am.
Defense Attorney: And then it says that you started looking into the car. So that would lead me to believe that . . . first you had him brought over to the car, and then you started looking into the car?
Paiz: Yeah, but — but thinking about it, that — well, like I said, I don't remember the sequence specifically, ma'am. I just don't.
Defense Attorney: Would it be fair [to say] that . . . when you wrote this [report] on October 15, `04, you had a better recollection of the sequence of events than you do now?
Paiz: It would be fair to say [that]. But I think what I was doing, in the next paragraph [of the report], after stating that I had him brought over, was for this purpose [ sic] — is because I had seen what I had seen.
Defense Attorney: [Are you referring to] this gold, round object?
Paiz: Yes, ma'am.
Immediately following this exchange, Paiz referred to his police report, and then he altered his answer: he told the defense attorney that, in addition to the small canister, he had also seen "a backpack, . . . a wallet, [and] a crack pipe [and] a wire push-rod." Paiz's amended answer led to the following cross-examination, in which Paiz conceded that the crack pipe and the push-rod were not in plain view — that these items became visible only after he moved the backpack (which happened later, after Skjervem consented to a search of the car):
Defense Attorney: And where, specifically, were these items?
Paiz: They were on the front seat of the vehicle.
Defense Attorney: On top of the front seat?
Paiz: Yes.
Defense Attorney: And you're absolutely sure about that?
Paiz: The backpack was kind of off to the right side of where the steering wheel would be, to the best of my recollection. . . . And the items that I just described [ i.e., the items in addition to the small canister] were kind of behind the backpack.
Defense Attorney: Okay. So if you hadn't gone into the car and moved the backpack, you wouldn't have seen these things?
Paiz: I don't think so.
Defense Attorney: And you're absolutely sure . . . that these items were on top of the front seat? You're absolutely sure about that?
Paiz: That's my recollection.
When the superior court issued its findings on remand, the court relied on the last question and answer quoted above — in which Paiz re-affirms that the crack pipe and push-rod were located on the front seat of Skjervem's car — as support for the conclusion that these items were in plain view on the seat. But, as can be seen, when the exchange between Paiz and the defense attorney is read as a whole, it is the next to last question and answer that constitute the critical portion of this cross-examination.
In the just-quoted excerpt, Paiz repeatedly asserted that the crack pipe and the push-rod were located on top of the front seat of Skjervem's car. But the crucial question is whether Paiz could see these items on the seat before he moved the backpack out of the way. And Paiz's answer to this question was, "I don't think so."
In its brief to this Court, the State forthrightly acknowledges this difficulty, but the State suggests an alternative reading of Paiz's answer.
As just explained, the defense attorney's question was, "So if you hadn't gone into the car and moved the backpack, you wouldn't have seen these things?", and Paiz's answer was, "I don't think so." The State suggests that Paiz's words should be interpreted, not as an agreement with the defense attorney's contention, but rather as a rejection of it. In other words, the State suggests that when Paiz said, "I don't think so", he was really saying, "I don't think [that that is] so."
One major problem with the State's suggested interpretation of Paiz's answer is that it is inconsistent with Paiz's manner of speaking, as reflected by the rest of Paiz's testimony at the evidentiary hearing. Throughout his cross-examination at the evidentiary hearing, Paiz repeatedly answered "I don't think so" when he clearly meant, "Yes, I agree that the answer to your question is probably `no'."
For instance, in the very first excerpt of testimony that I quoted in this dissent (the portion of the examination where Paiz is being asked to explain why he failed to ask Skjervem any questions about the suspected burglary), Paiz repeatedly stated "I don't think so" when it is clear, from the exchange, that Paiz meant "no".
Moreover, if Paiz's testimony is interpreted in the way that the State suggests, it is inconsistent with the testimony given by the other officers at the scene.
Officer Robert Blanton — the officer who was holding Skjervem in his patrol vehicle until he was directed to bring Skjervem to Sgt. Paiz — testified that he looked into Skjervem's vehicle and, on the front seat, he saw "a goldish looking . . . small, round canister" as well as "a backpack [sitting on the front seat] in between the passenger and the driver", and "[what] looked like a cell phone on top of the backpack".
Blanton specifically testified that he saw no other items on the front seat. When the defense attorney later pressed Blanton on this point, Blanton stated that he was well aware of what crack pipes look like — and that, if he had seen a crack pipe on the front seat of Skjervem's car, he would surely have noted that in his report. But all that Blanton saw were the gold container, the backpack, and a cell phone.
It was only later, after Skjervem had given his consent to a search of the car, and after Sgt. Paiz and Officer Charles Robertson had searched the car pursuant to that consent, that Paiz and Robertson told Blanton that they had discovered crack pipes, a digital scale, and some other drug paraphernalia in Skjervem's car.
Robertson's testimony was consistent with Blanton's on this issue. According to Robertson, he participated in the sweep of the house to make sure that no intruders were inside. Then, according to Robinson, the officers turned their attention to Skjervem because a canister was observed in his car:
Robertson: Once we . . . cleared the house and made sure that [that] was fine, and the situation was determined not to be a burglary, . . . it turned more into a drug investigation. We found a canister in [Skjervem's] car, and Mr. Skjervem . . . told [some] officers that there was bud in the . . . little canister that was on . . . the front seat of the car. So then [the investigation] started [in] that direction. . . .
Robertson further testified that he engaged in a search of Skjervem's car after Sgt. Paiz looked inside the car, but Robertson declared that he was not searching for drugs when he looked inside the car.
According to Robertson, at the time he began his search of Skjervem's car, the only violation that the police knew about was Skjervem's possession of a small amount of "bud" in the round canister. Robertson was told to search Skjervem's car as a precaution — because the police were going to release Skjervem, given the fact that he had only a small quantity of marijuana:
Robertson: [I opened the door and looked inside the vehicle because] there [was] still an option, at [that] point, to release [Skjervem] because [it was just a] little bit of marijuana, so we [were] just . . . making sure [that] the vehicle [was] safe to go. [And places where Skjervem might] lunge, reach, or grasp — [it] is my understanding to look in those areas [for weapons], so I just opened the door [to the car] . . . and [then] I could see a crack pipe underneath . . . the seat.
According to Robertson, that was his first knowledge of any crack pipe or other drug paraphernalia in Skjervem's vehicle.
Robertson gave this testimony on direct examination. On cross-examination by the defense attorney, Robertson confirmed this version of events: he stated that he searched Skjervem's car because the police were probably about to let Skjervem go, and they wanted to make sure that the car was safe ( i.e., that it did not contain any weapons).
Robertson's account of why he was directed to search Skjervem's car, and what the police knew at the time of this search, is utterly inconsistent with the superior court's finding that Paiz (the supervising officer on the scene) observed the crack pipe and the push-rod in plain view on the front seat when Paiz looked into Skjervem's car from the outside.
On the other hand, Robertson's account of events is consistent with Blanton's testimony — Blanton's statement that only the small canister and the backpack were in plain view on the front seat of Skjervem's car. And Robertson's testimony is consistent with Paiz's answer to the defense attorney's question at the December 5th hearing: the crack pipe and the push-rod w ere on the front seat of the vehicle, but they w ere not visible until the backpack was moved aside.
Based on the testimony as a whole, I am firmly convinced that the superior court made a mistake when the court found that Paiz had already observed the crack pipe and push-rod in plain view on the seat of Skjervem's vehicle before he ordered Officer Blanton to maintain custody of Skjervem, and to bring Skjervem to him for interrogation. Paiz's testimony is the only evidence that supports the superior court's finding — and that testimony was, at best, equivocal. The great weight of the evidence supports the conclusion that the crack pipe and the push-rod were not discovered until after the police interrogated Skjervem and obtained his permission to enter the vehicle without a warrant.
In sum, the evidence does not support either of the State's potential justifications for Paiz's custodial interrogation of Skjervem. The suspicions of residential burglary had already been resolved before that interrogation took place, and the only potentially incriminating item that the police observed from outside Skjervem's vehicle was the small round canister. As we held in our previous decision, the observation of this small canister may have given the police a reasonable suspicion of criminal activity, but that criminal activity was the possession of a small amount of a controlled substance for personal use — an insufficient basis for the police to keep Skjervem in custody, interrogate him, and ask him to consent to a search of his vehicle. See Skjervem, 215 P.3d at 1106-07.
Accordingly, I would reverse Skjervem's conviction.