Joubert v. State

977 P.2d 753, 1999 Alas. App. LEXIS 20, 1999 WL 254385
CourtCourt of Appeals of Alaska
DecidedApril 30, 1999
DocketA-6540
StatusPublished
Cited by2 cases

This text of 977 P.2d 753 (Joubert v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Joubert v. State, 977 P.2d 753, 1999 Alas. App. LEXIS 20, 1999 WL 254385 (Ala. Ct. App. 1999).

Opinions

OPINION

STEWART, Judge.

Hurist Joubert appeals his conviction for third-degree misconduct involving a controlled substance.1 He maintains that the police illegally seized cocaine during a pat-down search. We conclude that the seizure of the cocaine was impermissible and reverse.

Facts and proceedings

In October of 1995, Joubert was on parole supervision for a 1989 felony case. One of Joubert’s parole conditions required him to inform his parole officer if he purchased or regularly drove a vehicle. Another condition required him to consent to a search requested by a parole officer.

On October 3,1995, a probation officer told Joubert’s parole officer, Stanley Shoop, that he had seen Joubert driving a red Cadillac and that the Cadillac had been reported stolen to the Anchorage Police Department. Shoop contacted APD and confirmed that the Cadillac in question was listed as a stolen car.

On the evening of October 4, 1995, Shoop drove to Joubert’s apartment. The red Cadillac was parked outside. After reconfirming with APD dispatch that the car was listed as a stolen vehicle, Shoop requested assistance from APD. While Shoop was waiting for police to arrive, Joubert left his apartment, got into the Cadillac and started to drive away. Shoop blocked Joubert’s departure with his own car. Shoop ordered Joubert out of the Cadillac, handcuffed him, conducted a pat-down search for weapons, and placed Joubert in the caged back seat of Shoop’s car. Shoop told Joubert that he was not under arrest, but that Shoop was holding him pending a police investigation concerning the allegedly stolen car.

Joubert told Shoop he was the registered owner of the Cadillac and that title to the car was upstairs in his apartment. Joubert, however, had not reported ownership of the Cadillac to his parole officer. Joubert asked Shoop to remove the handcuffs so he could prove ownership, but Shoop refused..

Anchorage Police Officers Philip Kantor and Mitch Kehr arrived on the scene. Shoop told the officers that he had searched and handcuffed Joubert and that Joubert claimed that the title to the Cadillac was in his apart[755]*755ment. One officer radioed APD dispatch and received confirmation that the Cadillac was reported stolen.

Officer Kantor removed Joubert from Shoop’s car and replaced Shoop’s handcuffs with his own set, cuffing Joubert’s hands behind his back. Officer Kantor conducted his own pat-down search of Joubert. Kantor felt something small and hard in Joubert’s right front pants pocket area. Officer Kan-tor could not identify the item but suspected it could be a small weapon. Kantor lifted Joubert’s sweatshirt to look in the right front pocket area. He saw what appeared to be a rock of crack cocaine, protruding from the right front watch pocket of Joubert’s jeans. Officer Kantor seized that first rock. He searched in the same pocket and found and seized a second rock of crack cocaine. Officer Kantor also found a velvet bag in a pocket of Joubert’s sweatshirt and removed it. A search of that bag revealed more rocks of cocaine. The police arrested Joubert for cocaine possession and theft of the Cadillac.

Despite reports that the Cadillac was stolen, the car was legally registered to Joubert. The State indicted Joubert for third-degree misconduct involving a controlled substance. Joubert moved to suppress the evidence found by Officer Kantor following his pat-down search.

Superior Court Judge Milton M. Souter held an evidentiary hearing. At the eviden-tiary hearing on Joubert’s motion, Officer Kantor testified as follows:

Q And when you got toward the area of his right pocket, you felt hard objects?
A Yes.
Q They were small?
A Yes.
Q Did you move your hands around the small objects to determine their size?
A No.
Q Did you place your hand on them and immediately determined they were small?
A I came up on the right side of his leg and when I came to the right top front pocket, I just felt something hard.
Q “Something hard.” Did it feel like a gun?
A No.
Q Did it feel like a knife?
A Don’t know. Razor blade, don’t know. Something small, don’t know.
Q Could you describe — it was small, was it round?
A Couldn’t tell.
Q Was it long? Did it have a length dimension?
A Well, it had a length dimension but it was small. All I can say is it was just small and hard.
Q And it protruded?
A It protruded enough for me to feel it.
Q And you were able to determine that by placing your hand over the object?
A On the outside of the pocket, yes.
Q On the outside of the pocket.
A Yes.
Q Did you move your hand at all?
A Probably. I don’t recall.
Q And did you feel that this object was an explosive in any way?
A I didn’t know — I don’t know. Probably not, but you never know.
Q You were concerned essentially that it was a razor blade?
A My concern essentially was that I didn’t know what it was.
Q In your experience, had you encountered razor blades in that area of ...
A Yes, I have.
Q Had you ever encountered anything of that dimension that was a weapon?
A Small little pocket knifes. Probably not that small.
Q So this felt smaller than a pocket knife?
A Than an average size — than a normal sized pocket knife that people carry, yes.
Q And Mr. Joubert’s hands are behind him?
A Yes.
Q Would he have been able to reach into that pocket?
A Probably not, but I’ve had people do some limber movements while they were in cuffs and be able to get to their front pockets in the past.

[756]*756Judge Souter rejected Officer Kantor’s testimony that Kantor suspected a weapon when he felt what turned out to be the first rock of crack cocaine. Nevertheless, Judge Souter concluded that the search was justified as a parole search at the request of Parole Officer Shoop and denied Joubert’s motion to suppress.

At trial, the evidence established that Officer Kantor did not act at the request or at the direction of Shoop. In light of this evidence, Joubert moved Judge Souter to reconsider his ruling that the search of Joubert was justified as a parole search. Judge Souter reconsidered his ruling. As part of his reconsideration, Judge Souter examined the rocks of cocaine admitted into evidence at trial.

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Related

State v. Joubert
20 P.3d 1115 (Alaska Supreme Court, 2001)
Joubert v. State
977 P.2d 753 (Court of Appeals of Alaska, 1999)

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977 P.2d 753, 1999 Alas. App. LEXIS 20, 1999 WL 254385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joubert-v-state-alaskactapp-1999.