NOTICE
 

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errors to the attention of the Clerk of the Appellate Courts: 

303 K Street, Anchorage, Alaska 99501 

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

STEVEN SAEPHARN, 

Appellant, 

v. 

STATE OF ALASKA, 

Appellee. 

Court of Appeals No. A-11170 

Trial Court No. 3AN-08-9468 CR 

O P I N I O N 

No. 2467 — August 7, 2015 

Appeal from the Superior Court, Third Judicial District, 

Anchorage, Michael L. Wolverton, Judge. 

Appearances: Megan Webb, Assistant Public Defender, and 

Quinlan Steiner, Public Defender, Anchorage, for the Appellant. 

Diane L. Wendlandt, Assistant Attorney General, Office of 

Criminal Appeals, Anchorage, and Michael C. Geraghty, 

Attorney General, Juneau, for the Appellee. 

Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, 

District Court Judge.* 

Judge MANNHEIMER. 

* Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska 

Constitution and Administrative Rule 24(d). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Steven Saepharn appeals his conviction for fourth-degree controlled 

substance misconduct (possession of methamphetamine). 1 The police found Saepharn’s 

methamphetamine in a plastic bag in his pocket, while the police were conducting a patdown search of Saepharn’s clothing for weapons. 

Saepharn argues that the officer exceeded the proper scope of the pat-down 

search when the officer felt and then removed the plastic bag from Saepharn’s pocket. 

For the reasons explained in this opinion, we conclude that by the time the officer patted 

Saepharn’s pocket and felt a bag or pouch of crystalline substance, the officer had 

probable cause to believe that the substance was methamphetamine. The officer could 

therefore lawfully remove the bag from Saepharn’s pocket. 

Underlying facts 

On August 21, 2008, while Anchorage police officer Jack Carson was 

patrolling the Mountain View area of Anchorage, he observed a Honda Civic with a 

cracked windshield and a defective taillight. Carson activated his patrol vehicle’s 

overhead lights, signaling the driver of the Honda to stop. The driver did not 

immediately pull over, but continued driving slowly until he turned onto another street 

and finally stopped. 

Another police officer, Sergeant Christopher Sims, was also patrolling in 

the area and happened to see Carson attempting to stop the Honda. Sims saw the Honda 

make the turn onto the other street. As the Honda made this maneuver, Sims saw the 

front passenger door of the Honda open slightly, then close again — as if someone were 

AS 11.71.040(a)(3)(A). 

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preparing to leave the vehicle, or as if someone were discarding something out the door. 

Sims told Carson about what he had seen. 

Once the Honda came to a stop, Carson approached the car and spoke with 

the driver. Saepharn was a passenger in the front seat, and there was a second passenger 

in the rear of the car. 

The driver of the Honda asked Carson for permission to callhis mother, and 

Carson agreed. When the driver pulled his mobile phone from his pocket, Carson saw 

a cut-off straw in the pocket. When the driver saw that the straw was visible, he tried to 

push the straw back into his pocket. 

Carson later testified that a cut-off straw is “probably the classic piece of 

drug paraphernalia”. These straws are used to ingest controlled substances such as 

methamphetamine and cocaine in their powder form. Carson relayed his observation of 

the cut-off straw to Sims. 

Because the driver of the Honda had apparently been initially reluctant to 

pull over when Carson activated his overhead lights, and because the driver had the cutoff straw in his pocket, and because Sims had informed Carson about the quick opening 

and closing of the front passenger door just before the Honda stopped, Carson decided 

to obtain more information from the other occupants of the Honda. Carson asked 

Saepharn to provide his name to Sims, who had positioned himself on the passenger side 

of the Honda. Saepharn rolled down the window and told Sims his name. 

In the meantime, other officers were arriving on the scene. Once this 

backup arrived, Carson ordered the driver to get out of the car. The driver initially 

refused, declaring that he had done nothing wrong. When Carson told the driver that 

either he could exit the vehicle voluntarily or Carson would pull him out of the car, the 

driver stepped out. 

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After the driver got out of the Honda, Carson frisked him for weapons. 

During this frisk, the driver tried to pull away from Carson. After a brief struggle, 

Carson handcuffed the driver and walked him away from the car. 

During Carson’s brief struggle with the driver, Sims looked away from the 

Honda to watch the struggle. While Sims’s attention was diverted, Saepharn put his left 

hand into his left pants pocket. One of the backup officers, Charles Reynolds, saw what 

Saepharn had done; he drew his pistol and yelled at Saepharn to take his hand out of his 

pocket. Sims then looked, saw that Saepharn had his hand in his left pocket, and saw 

that Saepharn was doing something with his hand in the pocket. 

Concerned that Saepharn might have a weapon or that he was trying to 

conceal something, Sims grabbed Saepharn’s right arm through the open window and 

pinned it outside the Honda. Another officer entered the Honda through the driver’s 

door and grabbed Saepharn’s left arm. The officers then handcuffed Saepharn and 

removed him from the Honda. 

Once Saepharn was outside the Honda, Sims conducted a pat-down search 

of Saepharn’s clothing for weapons. Saepharn was wearing nylon shorts made from a 

“pretty thin material.” 

Sims first patted Saepharn’s right shorts pocket. He felt a lighter and cutoff straws as he patted the material against Saepharn’s leg. 

Next, Sims patted Saepharn’s left pocket. In that left pocket, Sims felt a 

“baggie of some kind” filled with a substance that was “crystalline in nature” — like 

“brown coarse sugar that you get at the store”. When Sims was asked at the evidentiary 

hearing whether he had to manipulate the bag “a lot” to feel its contents, Sims answered 

no — that he could easily tell, from its feel, that the baggie contained a crystalline 

substance. 

– 4 – 2467
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sims removed the item from Saepharn’s left pocket. It was a small plastic 

bag containing a crystalline substance — what later proved to be 3.1 grams of 

methamphetamine. 

Sims arrested Saepharn for unlawful possession of a controlled substance. 

During a more complete search incident to this arrest, Sims found another smaller baggie 

in Saepharn’s right pocket. This baggie contained 0.3 grams of methamphetamine — 

about a tenth of the amount that was in Saepharn’s left pocket. Sims had not detected 

this baggie during the earlier pat-down search. 

Following his indictment, Saepharn moved to suppress this evidence. 

Saepharn claimed that Sims had exceeded his authority when he removed the first baggie 

from Saepharn’s left pocket, since this baggie did not reasonably appear to be a weapon. 

After holding an evidentiary hearing, the superior court denied this motion. 

Later, after Saepharn hired a different attorney, he filed a second 

suppression motion, again challenging the pat-down search. The superior court held a 

second evidentiary hearing and, based on the testimony given at both hearings, the court 

denied the new suppression motion. 

Specifically, the superior court found that the materialof Saepharn’s shorts 

was thin, and that when Sims conducted the pat-down search of Saepharn’s pockets, the 

officer could identify the items he felt — the lighter, the cut straws, and the packet of 

crystalline substance — simply by patting, without improper manipulation. The court 

concluded that, based on this knowledge, Sims could lawfully remove the baggie of 

crystalline substance from Saepharn’s pocket. 

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Why we uphold the superior court’s ruling 

Saepharn does not challenge Sergeant Sims’s authority to pat down 

Saepharn’s clothing for weapons, but Saepharn argues that this authority to conduct a 

pat-down did not include the authority to search and remove the baggie of 

methamphetamine — i.e., an item that was obviously not a weapon — from Saepharn’s 

left pocket. 

The law that applies to this situation is set forth in Minnesota v. Dickerson, 

508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). 

In Dickerson, the Supreme Court re-affirmed the principle that when the 

police conduct a pat-down search during an investigative stop, the purpose of the patdown is to ensure officer safety, and the scope of this search must be limited to “[what] 

is necessary for the discovery of weapons”. 2 It is unlawful for the police to expand the 

scope of the pat-down beyond this limit in an effort to discover evidence of a crime. 3 

Nevertheless, if the police conduct a pat-down search of lawful scope and, 

during this pat-down, they detect contraband through their sense of touch, they may seize 

the contraband. 4 As we are about to explain, the crucial question is whether the physical 

characteristics of the object, felt through the suspect’s clothing, provide probable cause 

to believe that it is contraband. If so, then the contraband can lawfully be seized. 

The Dickerson decision described the test as whether the results of the patdown make the object’s identity “immediately apparent”. 5 But this is a misleading 

2 Id., 508 U.S. at 373, 113 S.Ct. at 2136. 

3 Ibid. 

4 Id., 508 U.S. at 375, 113 S.Ct. at 2137. 

5 Ibid. 

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phrasing of the rule. The real test is whether the results of the pat-down establish 

probable cause to believe that the object is contraband. See the United States Supreme 

Court’s explanation of this point in Texas v. Brown, 460 U.S. 730, 741-42; 103 S.Ct. 

1535, 1542-43; 75 L.Ed.2d 502 (1983), and the Alaska Supreme Court’s explanation of 

this same point in Klenke v. State, 581 P.2d 1119, 1123 (Alaska 1978). 

If the typical act of “patting” does not reveal the object as contraband — 

if its identity as contraband is revealed “only after squeezing, sliding[,] and otherwise 

manipulating the contents of the [suspect’s] pocket”, then the seizure of the contraband 

is unlawful. 6 

On the other hand, when a court assesses whether there was probable cause 

for the police to remove and seize an object from a suspect’s pockets, the court is not 

limited to the tactile information revealed by the officer’s patting. The court can also 

consider the surrounding circumstances. 

As Professor LaFave explains in his work on the law of search and 

seizure, “although grass-like substances are not per se contraband”, the police can 

justifiably rely on the fact that “[a particular] grass-like substance ... is precious enough 

to be collected and placed in plastic containers”. 7 Similarly, the police can rely on other 

circumstances such as a suspect’s attempted concealment of the item, or a suspect’s other 

reactions upon seeing the police nearby, or the fact that the suspect is in possession of 

implements that are used for ingesting the suspected drug. 8 

6 Id., 508 U.S. at 378, 113 S.Ct. at 2138. 

7 Wayne R. LaFave, Search and Seizure: ATreatise on the Fourth Amendment (5th ed. 

2012), § 3.6(b), Vol. 2, pp. 389-390 (quoting People v. Symmonds, 310 N.E.2d 208 (Ill. App. 

1974)). 

8 Id. at pp. 391-95. 

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Although these types of surrounding circumstances are most often 

considered when deciding whether the seizure of an item was justified by “plain view”, 

these same circumstances can also be considered when the government contends that the 

seizure of an item was justified by “plain feel” or “plain touch”. 9 

In Saepharn’s case, the superior court found that Saepharn’s shorts were 

made of a thin material, and that the items in Saepharn’s pockets — the lighter, the cut 

straws, and the bag filled with a crystalline substance — were sufficiently distinctive that 

the officer was able to identify them through patting, without additional improper 

manipulation. Saepharn challenges this finding, but he has the burden of showing that 

the finding is clearly erroneous. 10 

Here, the record does not leave us with a “definite and firm conviction” that 

the superior court’s finding is mistaken. 11 Rather, the record affirmatively supports the 

superior court’s conclusion that the patting in this case did not exceed lawful limits. 

We note, in particular, that Sims failed to discover the smaller plastic 

baggie that was in Saepharn’s right pocket — the same pocket that contained the lighter 

and the cut straws. The fact that Sims identified the presence of the lighter and the cut 

straws, but failed to identify the presence of the baggie, supports the superior court’s 

finding that Sims was merely patting Saepharn’s pocket, and not squeezing, sliding, or 

otherwise manipulating the objects within the pocket. 

In addition to Sims’s tactile perception of the bag (i.e., his perception that 

it contained a crystalline substance), there were the other circumstances known to the 

9 Id. at pp. 403-04. 

10 See Booth v. State, 251 P.3d 369, 373 (Alaska App. 2011) (explaining that a trial 

court’s findings of historical fact are reviewed under the “clearly erroneous” standard of 

review). 

11 Ibid. 

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police at the time: the behavior of the driver before and during the stop, the quick 

opening and closing of the passenger door just before the car stopped, the presence of 

cut-off straws in the pockets of both the driver and Saepharn, and Saepharn’s refusal to 

remove his hand from his pocket (until the officers used force). Given the combination 

of these factors, we conclude that Sims had probable cause to believe that the crystalline 

substance he felt in Saepharn’s pocket was contraband. Sims was therefore authorized 

to remove the baggie from Saepharn’s pocket. 

Conclusion 

The judgement of the superior court is AFFIRMED. 

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