Vigue v. State

• Decision Date: 03 September 1999
• Docket Number: No. A-6977.
• Citation: 987 P.2d 204
• Parties: Kash VIGUE, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

987 P.2d 204

Kash VIGUE, Appellant, v. STATE of Alaska, Appellee.

Nos. A-6977.

Court of Appeals of Alaska.

September 3, 1999.

Rehearing Denied September 17, 1999.

Averil Lerman, Assistant Public Advocate, and Brant McGee, Public Advocate, Anchorage, for appellant.

James L. Hanley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for appellee.

BEFORE: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

OPINION

MANNHEIMER, J.

A police officer stopped Kash Vigue for a minor offense. During their encounter, Vigue tossed or dropped something to the ground. This "something" turned out to be several small pieces of crack cocaine. The officer arrested Vigue and transported him to the police station. During the ride in the patrol car, Vigue removed a crack pipe from his clothes and tried to conceal the pipe between the seat cushions of the vehicle. Based on this episode, Vigue was charged with two offenses: third-degree controlled substance misconduct (possession of cocaine)¹ and tampering with physical evidence.²

This appeal presents two issues: First, was the initial investigative stop lawful? Second, does a person commit the crime of tampering with physical evidence under AS 11.56.610(a)(1) when the person drops or throws contraband to the ground in an attempt to prevent the contraband from being found on their person?

We conclude that the police officer had probable cause to arrest Vigue at the time of the initial stop, and thus all of the evidence flowing from that stop was admissible against Vigue. We further conclude that Vigue's act of dropping or throwing the cocaine to the ground during the stop does not constitute the crime of tampering with physical evidence, and therefore Vigue's conviction for that crime must be reversed.

The initial stop was supported by probable cause

On August 19, 1997, while driving down Barrow Street in downtown Anchorage, Officer Phillip Kantor noticed Vigue standing near the corner of Barrow and Fourth Avenue. Kantor saw Vigue "facing the building[, with] his hands down by his crotch area. It looked to [Kantor] as if [Vigue] was urinating." Because urination in public violates an Anchorage municipal ordinance³, Kantor pulled over in order to speak with Vigue.

When Vigue walked away from Kantor and rounded a corner, Kantor got out of his vehicle and called for Vigue to return. Upon hearing Kantor call out, Vigue stopped, but he did not turn around to face Kantor. Instead, Vigue again began to walk away, yelling "What's the problem?" Kantor directed Vigue to turn around so that Kantor could see Vigue's hands. At this point, Vigue turned around and began walking back toward Kantor, but he kept his hands behind his back. Kantor repeatedly asked Vigue to place his hands where Kantor could see them, but Vigue refused to comply.

As Vigue approached Kantor's car, Kantor saw Vigue make "a little shaking motion", as if Vigue had just dropped (or attempted to drop) something from his hands. Because Vigue's body blocked his view, Kantor could not see what, if anything, had fallen to the ground.

Vigue walked over to Kantor's vehicle and placed his hands on the hood of the patrol car. At this point, Kantor walked over to where Vigue had been standing when he made the shaking motion. Examining the ground, Kantor found five little white rocks that appeared to be crack cocaine. Kantor then placed Vigue under arrest for possession of cocaine.

Following his indictment, Vigue asked the superior court to suppress all of the evidence stemming from this investigative stop. Vigue argued that Kantor's claim about public urination was a mere pretext, and that Kantor had really stopped Vigue because the officer knew that Vigue was a drug user and he hoped to find drugs in Vigue's possession.

At the ensuing evidentiary hearing, Officer Kantor testified to the facts recited above. Vigue offered the testimony of Jarrell Arnold, who stated that he was with Vigue at the time and that Vigue did not urinate in public.

After hearing this testimony, Superior Court Judge Eric T. Sanders found that the decision came down to a question of "whether a police officer in Officer Kantor's position would have probable cause to believe that there was justification to issue a citation."

The Court: What's necessary for [the issuance of] a citation is probable cause. The argument [is that] ... this is kind of a pretext stop[,] ... that, really, urination had nothing to do with stopping Mr. Vigue. I don't accept [that.] ... [T]he court basically finds [Kantor's] explanation credible.... [This really] is kind of a credibility contest between the witness Arnold and the officer. I don't find Arnold's testimony to be credible.... I really think that ... [Arnold's] explanation of what was going on was just not credible. And ... he also, in the court's view, is probably biased in favor of Mr. Vigue. He testified that they're good friends. So he had a reason to testify in the way he did. So, if it comes down ... to a contest about who is more credible, the court finds Officer Kantor to be credible and Mr. Arnold not to be more credible than the officer[.]

... [T]he officer was ... driving down the street [and] he saw ... Vigue in a position [where it] appeared that he was urinating, [so] he stopped the car. The purpose was to issue a citation. The court has no reason whatsoever ... to find that that testimony is not credible. Having [been] stopped[,] ... the defendant then dropped something which the officer later determined to be cocaine.... [B]ased on those findings, the stop of the defendant and the subsequent arrest was not illegal. So the motion to suppress is denied for those reasons.

On appeal, Vigue argues that Judge Sanders should not have believed Officer Kantor and should, instead, have credited the testimony of the defense witness, Jarrell Arnold. But the trial court has the primary responsibility for evaluating witness credibility.⁴ Judge Sanders observed both witnesses and concluded that Officer Kantor's version of events was credible.

Under that version of events, Kantor had probable cause to believe that he had observed Vigue urinating in public. Thus, under AS 12.25.180, the officer was empowered to stop Vigue and issue him a citation. Accordingly, Judge Sanders properly denied Vigue's suppression motion.

Vigue's conviction for tampering with physical evidence must be reversed

As explained above, Vigue was charged with two crimes: possessing cocaine and tampering with physical evidence. The tampering count was intended to cover two separate acts: Vigue's act of tossing or dropping the cocaine to the ground when he turned around and walked back to Kantor, and Vigue's later act of placing the crack pipe in the seat cushions of the patrol car.

Vigue contends that his act of tossing or dropping the cocaine to the ground does not constitute the crime of tampering with physical evidence. Under AS 11.56.610(a)(1), a person commits this crime if the person "destroys, mutilates, alters, suppresses, conceals, or removes physical evidence with the intent to impair its verity or availability in an official proceeding or a criminal investigation". The question is whether Vigue committed the actus reus of this offense. That is, did Vigue's act of tossing or dropping the cocaine to the ground constitute a "suppress[ion], conceal[ment], or remov[al]" of the evidence?

This issue has been addressed by several states that have evidence-tampering statutes similar to Alaska's. Although these courts rely on different rationales for their decisions, they unanimously agree that a defendant's act of dropping or tossing away evidence in the sight of the police does not constitute the actus reus of tampering with physical evidence.

In Commonwealth v. Delgado,⁵ the defendant tossed away a bag of cocaine onto a garage roof as he was being pursued down an alley by the police.⁶ The Pennsylvania Supreme Court held that this conduct—"discarding contraband in plain view of the pursuing officer"—did not constitute tampering with evidence.⁷ The court concluded that the defendant had neither destroyed, altered, nor concealed evidence within the meaning of the statute. Rather, the court stated, the defendant's conduct amounted to "nothing more than an abandonment of the evidence."⁸

As a second rationale for its decision, the Pennsylvania court noted that Pennsylvania law classifies tampering with physical evidence as a higher degree of crime than possession of cocaine. "Under these circumstances," the court said, "we do not believe that the [Pennsylvania] General Assembly intended the simple act of abandoning [contraband] in plain view of the police to constitute the commission of an additional crime of a greater degree."⁹

In Boice v. State,¹⁰ the Florida Court of Appeal relied on similar reasoning to conclude that "the simple act of abandoning a bag of crack cocaine at the scene of an arrest, in the clear sight of a law enforcement officer," did not constitute tampering with physical evidence.¹¹ In Boice, the defendant threw a small bag containing a rock of cocaine out of his car window after the car was surrounded by police. One of the officers retrieved the bag from the road, where it was sitting in plain view.¹²

The Florida court noted that the defendant had neither destroyed, altered, nor concealed the cocaine. The court further noted that, even though the defendant had thrown the cocaine from his car, he had not removed the drug from the immediate area of the arrest. Under these circumstances, the court concluded, the defendant had not committed the actus reus of the offense.¹³

Like the Pennsylvania Supreme Court in Delgado, the Florida Court of Appeal relied on a second rationale for their decision—the conclusion that the Florida Legislature had not intended to impose additional felony penalties on defendants like Boice. The court ...