When Police Officer Kurt Lockwood rolled into an alley behind a Fairbanks bar in November 2008, he spotted two men standing near each other behind a dumpster with their hands at shoulder level. When the men realized that a police cruiser had arrived, Lockwood said that they quickly stepped away from each other, stuffed their hands into their pockets, and looked as though they'd been "caught in a cookie jar." One of those two men was Nick Stepovich, a former Alaska state representative from Fairbanks who in 2009 was convicted of cocaine possession and tampering with evidence in the incident. He was sentenced to 352 hours of community service.
On Friday, a decision from the Alaska Court of Appeals overturned that latter conviction while upholding the possession conviction.
But perhaps the most interesting aspect of the decision was that if Stepovich and Troy Towse -- the other man in the alley behind the popular Fairbanks bar colloquially known as "The Big I" -- hadn't reacted as they did when the officer arrived, the subsequent search may have been unlawful. That search turned up cash and a glass container with thousands of dollars' worth of gold nuggets that tied Stepovich to cocaine found nearby.
In the decision, the court noted that officer Lockwood was able to conduct a search of Stepovich primarily based on two things: the way the men were behaving when Lockwood first spotted them, and then the way they acted after realizing Lockwood was there.
"Lockwood’s suspicion was heightened by the reaction of the two men when he stopped his patrol car in their vicinity," the decision notes. "As Lockwood described in his testimony, Stepovich and his companion reacted with 'sheer panic'; both men had facial expressions as if they had been 'caught in a cookie jar'. Stepovich and his companion immediately broke away from each other, and they put their hands in their pockets."
During testimony, Lockwood shrugged off the possibility that Stepovich or Towse were merely smoking a cigarette or "taking a leak" behind the bar:
Because ... guys that are urinating behind their cars [at] the bars, oftentimes, you know, they see [an officer] and ... they’ll wave, ... or they kind of scurry behind their car -- but their hands are different, their actions are different. You know, they’re not really trying to hide anything; they’re not -- they don’t have that look of, “Gee, I’m busted.” It’s more [a look of] slight embarrassment at the time.
This amounted to "articulable suspicion," the court said, meaning Lockwood was able to describe the reasons he believed the men to be engaged in illegal activity. After the officer got out of his vehicle, Stepovich briefly stepped out of view behind a dumpster, in an area where Lockwood later discovered a slip of paper containing cocaine resting atop the snow, leading to Stepovich's arrest. Lockwood admitted during cross-examination that he had never seen Stepovich in possession of the cocaine, or see that he was the one who dropped the cocaine.
After his arrest, police discovered more than $850 in cash on Stepovich and a jar containing about 11 ounces of gold nuggets, worth between $8,000 and $9,000, the court notes. Back at the police station, Lockwood set about tying the cocaine to Stepovich with the help of a drug-sniffing dog named Argo, hiding the cash and the gold nuggets in the station. The dog, trained to sniff out various drugs including cocaine, registered hits on both of the hidden objects. The court ruled that this was a reasonable way of tying the jar and the cash to the presence of cocaine and admitting them as evidence in the case, since the jar specifically had come from one of the jacket pockets that Stepovich had put his hands into after Lockwood arrived behind the bar.
The court did find in favor of Stepovich on the tampering with evidence charge, noting that by dropping the cocaine he had not "suppressed or concealed" evidence, only that it made it a little more difficult for the officer to find.
A request for comment from the Stepovich's attorney was not returned Friday.
Contact Ben Anderson at ben(at)alaskadispatch.com