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Appeals court says police must limit hand searches

Posted: Sunday, December 30, 2001

ANCHORAGE (AP) -- Police can't order a suspect to open his hand during an investigative stop unless officers fear the hand might hold something dangerous to them, the Alaska Court of Appeals says.

The opinion Friday came in a case where officers found a rock of cocaine after they ordered Arthur Albers to open his hand in an Anchorage alley.

The crux of the matter is whether the officers had reason to fear for their safety from whatever Albers held in his hand, the judges said. Even prosecutors agreed that the officers did not have probable cause to arrest Albers for drug possession or any other crime.

Superior Court Judge Larry D. Card refused to suppress the cocaine as evidence against Albers and he was convicted of possessing the drug.

The appeals court did not overturn the conviction, but it sent the matter back to Card for him to assess whether the officers had a reason to think that Albers held a weapon or something else that was a danger to them or bystanders.

Albers' arrest came after an officer saw Albers and Emmanuel Rodriguez going into an alley in downtown Anchorage. The officer suspected illegal drug activity. He called for backup and then followed them, spotting Rodriguez lighting a crack pipe as he rounded the corner.

The officer ordered the two men up against the wall, but Albers kept his hand clenched and refused repeated orders to open it.

Ordering someone to open his hand is legally equivalent to a ''pat-down'' search, the appeals court said.

But ''the fact that police have sufficient justification for conducting an investigative stop does not mean they will have justification for performing a weapons pat-down,'' the opinion says.

Under a ruling by the U.S. Supreme Court, the appeals court said, ''the test is whether the officer was aware of specific and articulable facts that would support a reasonable inference that the detainee was armed or possessed some other article that could pose a danger to the officer.''

Card did not address that issue in rejecting the motion to suppress the evidence, the appeals court said, so the case was sent back so he can do that.

The unanimous opinion of the three-judge appeals court was written by Judge David Mannheimer.



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