*1 task therefore faced the v. sonnel. The State prescribed in Scott the rule follow we McGregor's trial convincing jury that preclusive effect of limit the Robertson credible, and that minimally was not plea to the facts contest Jones's alleged. had occurred as element assault support each essential necessary to (misdemeanor assault charged the crime cireumstances, independent evi In these 08.10.010(B)(1) in section defined as markedly committed a dence that Jones had Code), preclusive Municipal Anchorage girifriend- previous assault on a similar be confined to plea would of Jones's effect on the head with striking her several times recklessly used force that Jones the assertion hand, strangling her-was obvi open girlfriend. former against his or violence case. We can ously important to the State's argu- assuming purposes admitting evidence say that the error not claim appreciably affect was entitled to prior assault did not the State ment on no contest preclusion based Jones's issue must re jury's verdict. We therefore case, the State earlier assault plea conviction.24 verse Jones's rely on Jones's able to not have been would crucialto the facts that were proof
plea Conclusion admissibilityof ruling on the Judge Volland's here, we con- For the reasons Rule under Evidence prior assault complaint criminal from clude that 404(b)(4). not particular, the State could hearsay prior prosecution was Jones's assault allegations that Jones rely specific prove prior facts of the when offered to open girlfriend with his repeatedly struck his fact contained assault. The assertions of strangled her. and that he hand complaint were not admissible over ar- conclude that the State's We therefore objection. conclude that We further Jones's issue-preclusive ef- regarding the gument these out-of-court state- the admission of plea is moot. Even no contest fect of Jones's jury's likely affected the verdict. We ments arguing is correct conviction. therefore reverse Jones's to this preclusion applies of issue doctrine judgement of the court situation, prior of the assault-the the details REVERSED. Judge Volland relied details on which of this assault was that evidence he ruled 404(b)(4)-would Rule
admissible under preclusion aris- encompassed by the issue
be plea. no contest
ing from Jones's argument the admission
The State's was harmless error
this evidence any argues that error Finally, the State SKJERVEM, Appellant, Kristian prior assault was admitting evidence v. disagree. harmless. We Alaska, Appellee. STATE charge against Jones is The current allegation that he assaulted his on the based A-9972. No. McGregor, by Marilyn strik then-girlfriend, Appeals of Alaska. Court of times with his ing the head several her on strangling At her. Jones's open hand Sept.18,2009. trial, McGregor refused to admit Jones manner, even when she her in this assaulted previous statements with her
was confronted hospital per- officers and
to law enforcement (Alaska appellate require court can reason- reversal if the 24. See Love appreciably ably that the error "did not conclude 1969) (holding where non-constitu- in cases verdict"). jury's affect does not occurred, has the error tional error *2 McFarland,
Renee Assistant Public De- fender, Quinlan Steiner, Public Defend- er, Anchorage, Appellant. for the Terrell, Timothy W. Attorney Assistant General, Special Office of Prosecutions and Appeals, Anchorage, and Colberg, Talis J. General, Attorney Juneau, Appellee. for the COATS, Judge, Before: Chief BOLGER, Judges. MANNHEIMER and OPINION MANNHEIMER, Judge.
Kristian appeals his conviction fourth-degree controlled substance mis cocaine).1 (possession conduct The issue appeal against the evidence Skjervem was the fruit of an unlawful search here, or seizure. For the reasons we conclude that we can not resolve this issue findings without further of fact. We 11.71.040(a)(3)(A). 1. AS express superior court made no this case to Although the remand
therefore issue, there is substantial finding on this court. that, during time suggesting evidence (i.e., sitting in handcuffs undertying case while Overview facts car), the owner in Blanton's legali- pertaining facts *3 Although the explained that there up and house showed in this case must be de- ty of the searches police began to burglary, and the detail, un- the basic events in some scribed holding they were people whom release in a few be described derlying this case can custody. sentences: Skjervem, the su- releasing But instead Anchorage police officers were Several seene-Sergeant Pa- at the pervising officer Ave- on West 25th to a residence summoned to remove Paiz-directed Officer Blanton blo that a woman neighbor reported after a nue (Blanton's) patrol car and Skjervem from his po- breaking into the house. When Paiz, in handcuffs. bring him to still trying arrived, a woman they observed lice from inside the sereen replace a window testimony, he directed According to Paiz's a car in the They also observed house. had looked into to do this because he Blanton seat Skjervem was the driver's driveway; small, round, Skjervem's car seen a and had car, in the front on the front seat of the man was gold-coloredcanister and another of this seat. passenger this canister was car. Paiz stated you you circled the size would make "about custody at everyone into police took The finger". In other your ... thumb and index later, however, minutes A few gunpoint. words, apparently shallow the canister was appeared on the scene of the house owner larger in diameter than a and a little bit burglary. there was no explained and popular lip balm quarter-similar to some his staying at the house with The woman was (Blanton he, too, testified that containers. key inside she had left her permission, but this canister on the front seat observed locked herself out- and then had the house car.) why she removed a window which through the the house screen and entered small, presence gold-colored The Skjervem, he was there As to window. because, suspicious made Paiz canister simply drop- he was complete coincidence: people are experience, [who] "[flrom [his] passenger. ping off his carry quanti- small drugs involved with will types drugs in these of boxes". ties of appeal in this all presented issues Skjervem might using this be believed police did not release because the arose box", small, a "stash gold-colored canister as suspicions their about Skjervem after Skjer- he therefore wanted to burglary were resolved. releasing from drugs before vem about custody. look at the searches A more detailed in this case
seizures superior court's In a footnote to one of re in this case-the "Order written decisions at the house first arrived When Septem- dated Motion for Reconsideration" prog- appeared and it superior court declared ber 2006-the ress, Skjervem and his ordered the officers small, that, gold-colored addition gunpoint. The of the car at passenger out canister, green Skjervem, patted him Sergeant Paiz also observed handcuffed push rod on the pipe and an associated (and none), crack and then weapons found down Skjervem's vehicle. Somewhat curi- seat patrol cars. After put him in one of the however, ously, superior court did minutes, Robert Blanton about 15 Officer justification for the rely on this fact as patrol first Skjervem from this removed continued detention officers' Skjervem in Blanton's own placed car. Moreover, the rec- it is debatable whether fact. It is true supports this custody in ord Blanton's remained events, these when Paiz first described 15 minutes. for another 10 or patrol car testimony suggested testimony given that he all cant differences between the small, only gold- by Sergeant testimony given by of these items-not Paiz and the canister, colored but also the Skjervem concerning happened what time, rod-at the same from a brought Officer Blanton over to vantage point outside questioning. However, Paiz for However, questioned when Paiz was further decision, purposes our we will adhere to issue, on this he seems to have clarified that Paiz, by Sergeant offered version be- he had observed cause the court found Paiz's version began interrogating canister at the time he to be more eredible. Skjervem-and that the items were Paiz, According later, backpack discovered hidden behind a brought question- vem was to him for further lying that was on the seat of *4 ing, Skjervem Paiz asked what was in the (Charles and another officer Rob- small, canister, gold-colored Skjervem and ertson) entered the vehicle searched it. replied marijua- the canister contained The Blanton of Officers Skjer- na. Paiz also testified that he asked Robertson corroborates this latter version of car, vem if the officers could search his events. Blanton testified that when he Skjervem consented. (from Skjervem's looked into car the out- consent, receiving After this both side), small, gold-colored he saw the canister Officer Robertson searched vehi- seat, front backpack the as well as a and a cle, yielded Their searches pipes, two crack phone, any cell but he did not see rod, push a and a battery-powered gram items. Blanton further testified that he cer- Following scale. the seizure of drug this tainly would have made note the crack paraphernalia, Paiz directed Blanton to pipe if he had seen it. Skjervem's person search again, this time part, For his Officer Robertson testified search, thoroughly. During more Blan- that when he entered and searched lump ton felt a in one of socks. looking drugs,
vem's he was not but Skjervem When Blanton asked what weapons. According rather to Robert- was, Skjervem replied that it was crack co- son, place the search of the car took after caine. Skjervem questioned by Sergeant had been Paiz and had admitted that he carrying was superior rulings The court's marijuana gold-col- small amount of in the Superior Judge Phillip Court R. Volland ored canister. Robertson told the court that suppressed Skjervem's two admissions of assigned he was to search drug possession-his statement the police because the considering were still re- gold-colored marijuana, canister contained leasing point-"because at this [it and his statement lump in his sock just marijuana"-and little bit of they al packet was a Judge cocaine-because Vol- wanted to make sure that there were no land concluded that these two statements might items in the car pose a threat products were the interrogation, of custodial them onee was released. yet and the had not advised reasons, For these we have serious doubts Nevertheless, rights. his Miranda superior about the assertion in the court's police lawfully ruled that found footnote that Paiz saw the crack marijuana and seized the and the cocaine. pipe and paraphernalia the associated in Volland concluded that view on the seat of justified initially were in taking But because we must send this case back to custody into because of their court for a reasonable be- further on a issue, burglary lief that progress, there was different factual we need not decide at Skjervem might and that present whether be connected to the the assertion in the footnote burglary. clearly erroneous. controversy Aside from the factual that we Volland further ruled even af- described, just signifi- have there were also ter learned that there no However, to hold justified continued police were ress. occurring, the custody learned because continuing to detain legali- small, burglary. gold-colored can- that there was as a "stash leading Paiz described ty ensuing ister-what events-the events drug paraphernalia to the seizure of the vehi- the front seat box"-on packet car and the of cocaine presence judge concluded cle. Skjervem's sock-hinges po- on whether gave canister of this justified continuing to hold Skjervem lice were suspicion that police reasonable custody Skjervem in even after the quantity of an possession of a small investigation was resolved. drug. illicit Court, charac- In its brief to this concluded that Judge Volland next justified this issue as whether the need- terizes vehicle the "focus" ed an affirmative reason to alter Skjervem consented to this search. because investigative stop yielded pre-existing their this search explained, As Skjervem. But that is not the issue. Rath- rod, gram and a scale. pipes, a er, the issue is whether the needed discovery of ruled that Judge Volland separate, legally sufficientreason to continue gave police prob- Skjervem-and suspicions arrest thus to detain after the able cause to *5 (i.e., again thoroughly investigative stop more be- had led to the initial been him, to they now search incident cause could resolved. The answer to this arrest, drug possession as "yes": justi- for evidence of police needed an affirmative continuing fication for to detain weapons). for well as explained, this renewed search As we have (Alas State, 624, In Brown v. 182 P.3d 625 discovery packet of cocaine of the led to App.2008), quoted plurality ka this Court Although Judge Volland sock. Royer2 opinion proposi in Florida v. for the investigative stop suppressed tion that an "must be tem statement cocaine, packet a of Tump in his sock was porary longer than is and must last no neces the contents of the judge concluded sary purpose stop". of the to effectuate revealed, inevitably would have been packet becomes unreasonable-and The detention arresting Skjer- police were given that constitutionally thus fnvalid-"if the dura pipes. Judge possession of the tion, manner, vem for scope investigation or of the denied motion Brown, Volland therefore these boundaries." 182 P.3d exceeds suppress the cocaine. at 625.3 to case to the Why we remand this burglary investigation al had (1) issues: court to resolve factual ready Sergeant Paiz di been resolved when there knew that whether bring Blanton to to rected Officer Paizg burglary Sergeant di-
was no
questioning, this
him in handeuffs for further
bring Skjervem
Blanton to
rected Officer
of
would be
continued detention
(still
custody)
questioning;
to him
for
separate,
a
inde
illegal unless the
(2)
pipe
push
the crack
justification
action-either
pendent
for their
plain
lying in
view on the seat
rod were
a
probable
cause to arrest
for
Skjervem's car
crime,
suspicion
or reasonable
dispute
does not
sufficiently
crime
had committed a
serious
investigative
satisfy Alaska's
standard for
lawfully detain him when
police could
(the
test).4
prog-
stops
Coleman
thought
was a
there
tion,
1319, 1325,
491, 500,
authority
of the
to conduct inves-
103 S.Ct.
75
2. 460 U.S.
(1983).
probable
tigative stops
cause
L.Ed.2d 229
based on less than
officers have
is limited to situations where the
Citing Royer,
at
Moore v.
glary-because,
patrol
as
sat
App.2005)).5
presumption
"To
overcome
car,
he overheard two
officers discuss-
taint],
government
[of
must demonstrate
ing this matter. When Officer Blanton came
a break in the 'causal connection' between
to retrieve
from the back of the
prior illegality
and the defendant's con
Skjervem assumed that he was
(internal
omitted).
quotation
sent." Id.
instead,
being
released. But
Thus, if it
was unlawful for the
Paiz,
brought
still in handcuffs.
Skjervem,
continue their detention of
point,
Volland ruled
next issue is whether
consent to
custody
was in
pur-
for Miranda
sufficiently
the search of his car was
insulat-
(This
poses.
why
judge suppressed
ed
(Judge
from the unlawful detention.
Vol- Skjervem's
admission that
land did not reach this issue-whether
marijuana.)
canister contained
vem's consent
search
his car was
testimony,
Given this
there was no break
tainted
the unlawful detention-because
in the
action
would insulate
concluded
contin-
consent from the effects of his unlawful con-
lawful.)
was,
fact,
ued detention
tinued detention. We therefore
conclude
if
continued detention
Court,
In his brief to
argues
(Ge,
purported
that his
unlawful
if
investigation
consent to the search was
resolved,
been
the crack
detention,
a direct result of his unlawful
plain sight
rod were not in
that all evidence obtained
ensuing
from the
car),
seat of
then
suppressed.
must be
In the alterna-
consent
tive,
to search his car was tainted
asks this Court to remand his
*8
unlawful detention.
case to the
court
a
for determination
whether,
extent,
as to
Skjer-
and to what
Although the State's brief fails to address
vem's unlawful detention tainted his consent
Skjervem's
the issue of whether
consent was
to the search.
detention,
illegal
tainted
his
the State
does address a related issue: whether
brief,
The
in its
does not
address
voluntary. Using
vem's consent was
possibility
unlawfully
that
de-
analysis set forth in Frink v.
597 P.2d
gave
tained at the time he
his consent to the
(Alaska 1979),
argues
154
the State
that the
words,
search of the car.
In other
even
totality
support
of cireumstances
a
though
government's
it is the
burden to es-
Skjervem's
that
voluntary.
consent was
taint,
presents
tablish
lack of
the State
argument
Skjervem's
even if
points
detention
But as Professor LaFave
out in his
unlawful,
seizure,
his consent
though
the search
text on search and
even
there
Wong
Illinois,
See Brown v.
1109 Patane, 630, overlap between the is- In United States v. 542 often substantial U.S. is 634, 2624, 2620, 124 159 S.Ct. L.Ed.2d 667 a consent to search is volun- sues of whether (2004), Supreme is the that tary and whether a consent search Court held the ex illegality, extremely clusionary require suppression "it prior fruit of a rule did not physical evidence obtained as result of that ... important to understand statements taken in violation of Miranda. identical, [that,] conse- tests are obtained quently[,] [means of] evidence questioned, The defendant Patane was Miranda, pistol. violation of about a During purported consent should be held admis- only questioning, if ... the consent was both volun- Patane admitted that sible bedroom, prior pistol tary exploitation gave and not an was in his and he LaFave, Wayne police permission pistol.6 R. illegality." Search and to retrieve the Supreme A on the Amend- Seisure: Treatise Fourth Court concluded the self-in (Ath ed.2004), 8.2(d), 4, § p. Vol. 76 crimination clause of the Fifth ment Amendment (footnotes omitted) (emphasis original). protected against Patane the use of his itself, protect statement and did not may though even be cor- against physical the use of the evidence that Skjervem's asserting consent rect recovered as a result of his state voluntariness, the test for this does meets (i.e., pistol).7 ment through not mean that the evidence obtained ensuing search of car is ad- But the facts of argu- case are missible-because, ably presented even if con- different from the situation case, the Patane. after he admit- voluntary, negate this would not sent was small, gold-colored fact that consent was the fruit of ted that the canister con- marijuana, an unlawful detention. tained simply did not they ask him if could retrieve the canister. however, is, possible There another version Rather, they asked to consent to a burglary investigation of events: search of his entire car-and that search yet was not resolved when (and signifi- revealed evidence of different If, questioned Skjervem. at the time Paiz serious) cantly more crimes. Skjervem, questioned still reason- just note, moreover, ably interrupted believed We several state burglary, rejected residential then the continued de- courts have the Patane rule on state grounds. constitutional See Commonwealth justi- tention of would have been fied, presumably ques- and the could Martin, 213, 198, 444 Mass. 827 N.E.2d (2005); Farris, tion and seek for a his consent 200 State v. 109 Ohio St.3d 519, (2006); 985, But search of his vehicle. 849 N.E.2d 995-96 State v. Vondehn, lawfully 492, 567, Or.App. detained the time of this 219 (2008), questioning, granted 460, consent to search 575-76 review 345 Or. (December might 10, 2008); the vehicle still be invalid. 200 146 P.3d State v. Peterson, 436, 585, 181 Vt. 923 A.2d Volland ruled Paiz's (2007); Knapp, State v. 285 Wis.2d interrogation Skjervem place took in viola- (2005). N.W.2d Miranda-and, reason, Judge tion of for this If, remand, suppressed Volland admission Volland determines small, gold-colored burglary investigation canister con- was still unre- marijuana. tained consented to solved when consented have the after he admitted that search his then *9 the small canister in his car contained mari- question should address the of whether the using be Miranda violation bars the State from juana, might then his consent to search by violation-although tainted the Miranda physical the evidence recovered as a of result Skjerver's the resolution of this issue is not clear. consent to search. Id., plurality)
6.
at
542 U.S.
(c) gave police the a sufficient search the renewed Whether (8) Skjervem; during continuing to detain yielded person, which Skjervem's Paiz, cocaine, ensuing interrogation Sergeant the packet the lawful police Skjervem to have the search consented earlier, Blan- explained Officer As we (4) vehicle; yielded and this search the Skjer- pat-down search performed ton drug paraphernalia.) pipes crack and other Skjervem into eusto- first took vem when he that, alternatively Judge concluded Then, Paiz and Officer dy. after Skjervem's if sock oc- Skjervem's and the search vehicle Robertson searched scale, discovery the of the crack gram curred before pipes, crack the recovered the paraphernalia in pipes drug and other drug paraphernalia, and the other vehicle, the were nevertheless Blanton to search vem's Paiz directed Officer pat-down repeat entitled to their Skjervem's person again, this time more search, Skjervem's person weapons-because Blanton felt thoroughly. During subjected lawfully to in- Skjervem's had been lump in socks. When one was, vestigative detention. Skjervem what Blanton asked crack cocaine. replied that it was Court, the ad- In its brief to this State (As Judge already explained, Vol we have only the first of these rationales. dresses Skjervem's suppressed be land statement is, argues That the renewed the cause he concluded statement Skjervem's person was a valid search of Miranda.) elicited in violation of arrest, on the fact search incident based discovery is the probable cause to arrest discovery Skjervem's Skjervem following drug of the sock was tainted the cocaine (if just Skjervem's car. paraphernalia have discussed the earlier acts we unlawful). those acts were why con- have we We Skjervem's Skjervem's car Judge clude that the search of When Volland denied case, if suppress the evidence unlawful continued to detain motion to why burglary investigation judge rulings alternative as to made resolved, (alternatively) and discovery packet of cocaine was was rulings Skjervem's may been lawful. The issued alternative search of have clear, Skjervem's it from unlawful if consent to this search because he found that was not testimony, by the Mirando violation. whether the second search of was tainted Un- theories, place any these person took before or after der either of renewed Skjervem's person search of could be pipes found the crack and other drug justified car. as a search incident to an arrest paraphernalia based on the items found concluded if the Volland first rul- Skjervem's person was conducted This leaves Volland's alternative search of discovery ing: if not have pipes after the of the crack that even did probable to arrest cause justified pat-down a search conducted the second search of then the search was as Skjervem's person, police were incident to arrest-because would neverthe- pat-down conduct that second probable have had cause to arrest less entitled to part investigative continued deten- at that time. as of their ruling tion of But this alternative (It important to note that Vol- rejected burglary investigation if must be pipe crack land's rationale was not already been resolved push plain view on the seat rod were continued detention was unlawful. very beginning, car from the reasons, if interrogated in hand- For these we conclude before Rather, police found by Sergeant judge's was detained after the cuffs Paiz. (1) burglary, out there was no rationale was were not in and the rod canister was visible from outside *10 (to (2) vehicle; Skjervem's car of this canister view on the seat of observation 1111 car), standing parties days outside the then the The shall then observer have 30 to file supplemental found in packet addressing of cocaine sock memoranda the su- perior suppressed. findings. court's must be parties'
After we have received supple- Conclusion memoranda, mental we shall resume our con- sideration of this case. in opinion, For the reasons this jurisdiction retain We of this case. we conclude that we must remand this case superior supplemental to the court for find- BOLGER, Judge,
ings concurring. on of fact. two issues First, superior court must determine BOLGER, Judge, concurring in the result. Paiz, Sergeant standing outside I in concur the result of opinion the lead observed a crack agree I because this case should be associated rod view on the seat remanded for findings. sepa- further I write explained, Judge the car. we have As rately my because view of diverg- the record seemingly finding Volland made a in the my colleagues' key es from on certain issues. point, State's favor on this but opinion suggests The lead footnote, finding inserted this in a and he did custody continued to hold after rely finding on this when he made his they learned that there was Moreover, rulings in various this case. as we drug before discoveredthe parapherna explained, significant have also there is a lia in car. But the trial court's testimony amount of calls this strongly implies decision Paiz question. into We therefore direct Skjer- discovered the to re-examine this issue. vem's vehicle before officer was aware Second, superior court must determine that the owner of the residence at arrived when the out found that there was no Indeed, scene. there is substantial evidence burglary-whether knowledge this came be- supporting implication the record began fore or after Paiz his custodi- the trial ruling court's when the record is interrogation al If the light viewed in the most favorable to that custody continued to hold decision.1 resolved, burglary investigation testified that there were justification if their for this continued present number when he arrived detention was the observation of the p.m. at the residence around 5:15 He noticed canister, then the continued de- a tan parking space Ford vehicle di- illegal-and tention of all rectly in initially front of the residence. Paiz stemming the evidence from that continued tried to the woman who had been suppressed. detention must be custody, agitated taken into but she was too superior findings The court shall enter respond in a rational manner. He then questions. may these two The court do this went into the residence with several other simply testimony based on a review of the officers to make sure there was no one already presented evidentiary at hear- else inside. case; ings in alternatively, superior "clearing" The officers finished the resi- discretion, may, in supplemen- court its hear p.m. point, dence at about 5:80 At that tal on these issues. parked went to look the tan vehicle front of the residence. This was when he findings court shall reduce its writing drug and shall transmit paraphernalia its written find- observed the in the front ings days bring this Court within 60 seat and directed another officer to opinion. issuance It vehicle. was then that light (Alas- should be viewed in the most favorable to 1. See v. State, Crawford prevailing party reviewing 2006); a trial ka State v. P.3d Campbell, (Alaska App.2008) (holding disposition suppress). the record court's of a motion to *11 convincing than Blanton's rec- events is more search the Skjervem agreed to let ollection, speculation on which was based vehicle. testimony by transmission. The from a radio familiar with the Additionally, Paiz was judge's supports and Paiz con- Anderson residence, Steve Grizzell. On owner of the para- discovered the clusion that examination, questioned about Paiz was cross vehicle before Griz- phernalia in the car with was Grizzell arrived, discovery allowed and that this zell arrived, or whether first vem when Skjervem even after to detain car after Paiz cleared patrol in a was Grizzell burglary had oc- told them that no Grizzell suggested responses Paiz's the residence. curred. present. There Grizzell exactly to indicate when nothing report in his majority opinion questions also recall that the But Paiz did arrived. Grizzell that Paiz saw the crack Volland's underway when investigation was he other before and residence, it and out of the he walked Skjervem for consent to search the asked his underway shortly when thereafter was still However, sup- vehicle. there is substantial brought over to the vehicle. he had judge's finding that port in for the the record box," description part of the inves- only Paiz's a but a "Paiz observed not 'stash testimony of tigation supported wallet, lighters, green is a backpack, two a Anderson, ac- the officer who Arthur Officer he pipe, pushrod crack and a first Anderson was tually spoke with Grizzell. into the window of vehi- looked officers to arrive at cle." one of the first
what tions. with Grizzell because of a radio transmission residence after testimony suggesting that ing the woman who the residence-when house arrived and talked Blanton was there. that he talked with point Anderson at the residence stating that Skjervem. But Blanton's not arrive until after the officers back stages" car's The lead the two passenger in the on one of the windows At not based on spoke discussed. first, opinion Grizzell, but that he did not know progress. the house's owner had arrived. waiting people assumed "clearing everything up detaining Skjervem and receiving with Blanton said relies Grizzell, they were at the "end driveway. Blanton then clarified He assisted his that Paiz had talked his personal dispatch permission the owner of the putting with Paiz while Officer who confirmed that Paiz had had detained had cleared Grizzell did Blanton's a screen call for observa- on this detain- to be with his a wheel, positioned to the into the vehicle. On initially said that through the car's box"). round canister have the talk to him. Paiz asked that no one was inside the see he crack examination crack outside and went over to look After As noted front of the residence. When opened backpack. pipe, pipe. cocaine). Only could search He could also see a Paiz obtained asserted rod they backpack, driver, Skjervem, brought the driver's side door and that the other items were behind that after the officers made sure He said that (a above, Paiz testified on direct could. plastic lighters, a type (which he called a "stash right window, wallet, his cross-examination, Paiz of rod used to smoke Skjervem's permission, at that then did Paiz ask to side residence, backpack, Skjervem if he saw a small stash point, backpack wallet, he looked box, and he could steering he came tan car over looked green frame, the time Blanton was unsure about then clarified that he would not have it to him that the owner but made sense point at that if he had seen the other items brought before Blanton arrived backpack. Shortly after- not moved the to talk with Paiz. over to the vehicle wards, however, prior recol- he confirmed his top were on my description lection that all of the items opinion, clarify sequence No one asked Paiz to Paiz about the front seat. Anderson and *12 drug paraphernalia. position the exact ap- window vehicle." It pears to me that Volland did not dis- particular, no one ever asked him whether actually drug paraphernalia implications he had seen the finding cuss the of this because he first looked into the car before he independent his decision also rested on an Skjer- basis for detention: that talked to Paiz did not concede vem was still detained for the only gold inves- observed the canister he began interrogating time he tigation when Paiz asked to search only discovered the other items he agree I with the decision to remand this vehicle. after he searched the proper may hinge case because the result opinion suggests The lead that Paiz told disputed evidentiary these two issues. Blanton that he did not discover the crack drug paraphernalia, Paiz saw all of the in rod, pipe, drug para- or the other cluding the crack and stash box on the actually phernalia until he searched seat, Skjervem, before he talked to then Paiz But im- vem's vehicle. Blanton's arguably probable would have had cause to plies stated he had discovered arrest and to incident drug paraphernalia vehicle Moreover, to that arrest.2 sitting while Blanton was still legally burglary investiga detained for the suggests car. This that Paiz discovered the tion when asked to search vehicle be- then his consent was not tainted bring Skjervem Paiz had Blanton over to fore illegal detention.3 the vehicle. Consequently, I conclude that Paiz's direct
examination constitutes substantial evidence
supporting Judge Volland's that "Paiz box,' 'stash but a back- wallet,
pack, lighters, green
pipe, pushrod and a when he first looked into 244, (Alas-
2. See v. Dollison 5 P.3d 246-47 3. See v. State, Hubert 638 P.2d 688 & n. 9 App.2000); (Alaska ka Snider App.1981). (Alaska App.1998).