Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
Crawford v. State (4/25/2003) ap-1868
Crawford v. State (4/25/2003) ap-1868
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
KIRK MERLAND CRAWFORD, )
) Court of Appeals No. A-
8082
Appellant, ) Trial Court No.
3AN-S00-2385 CR
)
v. ) O P I N I O
N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1868 April
25, 2003]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, John R. Lohff,
Judge.
Appearances: Brent R. Cole and Colleen J.
Moore, Marston & Cole, P.C., Anchorage, for
Appellant. Kenneth M. Rosenstein, 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.
STEWART, Judge.
Kirk Merland Crawford was stopped and arrested for
reckless driving.1 The police searched his car after the arrest
and found evidence in the cars console that led to a charge of
fourth-degree misconduct involving a controlled substance.2
Crawford moved to suppress that evidence, arguing that the search
was not justified. Superior Court Judge pro tem. John R. Lohff
concluded that the search was authorized as a search incident to
arrest. Crawford entered a no contest plea, preserving his right
to appeal.3
We hold that, for purposes of the search-incident-to-
arrest exception, the center console of Crawfords car is not a
container associated with the person of the arrestee. Because
there would not be evidence of reckless driving in the console,
the search can only be justified as a search for hidden weapons.
However, Judge Lohffs findings did not address that issue so we
remand for additional findings.
Facts and Proceedings
On March 23, 2000, shortly after noon, Anchorage Police
Officer Indrek Oruoja saw Kirk Crawford drive by him at a speed
of approximately fifty miles per hour in a thirty miles-per-hour
zone on I Street. He watched Crawford move from the far right
lane to the far left lane and back to the far right lane in the
distance of five blocks without using turn signals. Officer
Oruoja pulled Crawford over. Oruoja saw that Crawford kept
looking back into the mirror and then he was making motions
inside the vehicle ... and he was basically fidgeting in the
drivers seat as if he was moving objects around. Officer Oruoja
said he thought from a standpoint of safety, that there could be
a weapon involved, he could either be concealing a weapon or
producing a weapon.
Officer Oruoja approached the vehicle and observed that
Crawford was jumpy and nervous. He testified that he asked
Crawford to shut off the vehicle and give him the keys, but
Crawford refused to give him the keys. Officer Oruoja then
pulled Crawford from the vehicle. Crawford became belligerent,
thrashed about, and yelled obscenities. Anchorage Police Officer
Christopher Ritala and Officer Oruoja handcuffed Crawford, told
him he was under arrest for reckless driving, and placed him in
the back of the police car.
After placing Crawford in the police car, Officer
Oruoja returned to Crawfords car and searched the area that had
been within Crawfords immediate reach when Crawford was sitting
in the drivers seat. He found a little league baseball bat
between the drivers seat and the center console. He also opened
a small compartment in the center console and found crack cocaine
and cocaine paraphernalia. The State charged Crawford by
information with one count of reckless driving and one count of
misconduct involving a controlled substance in the fourth degree.
The grand jury indicted Crawford on the count of misconduct
involving a controlled substance in the fourth degree.
Crawford filed a motion to suppress the cocaine and
cocaine paraphernalia found in the compartment in the center
console and to dismiss the indictment for fourth-degree
misconduct involving a controlled substance. Judge Lohff denied
the motion, holding that the search was a proper search incident
to arrest under Dunbar v. State.4 Crawford pleaded no contest to
fourth-degree misconduct involving a controlled substance and now
appeals the denial of his suppression motion.5
Discussion
Crawford argues that Judge Lohff improperly denied his
suppression motion because the search of his vehicle was not a
lawful search incident to arrest. He claims that the officers
were not looking for evidence associated with the crime charged
and that the search could not be justified as necessary for
police safety because Crawford was handcuffed in the back of the
police vehicle at the time of the search.
We review the facts of the case in the light most
favorable to the trial courts ruling.6 Moreover, we must accept
the trial courts findings of fact unless they are shown to be
clearly erroneous.7 However, once the facts are established
(using these two rules), we independently assess whether the
facts support the trial courts legal conclusions.8
A police search conducted without a warrant is illegal
unless the search is justified under one of the recognized
exceptions to the warrant requirement.9 One of the recognized
exceptions to the warrant requirement is the search incident to
arrest.10
When the police conduct a search incident to arrest,
they may search the area within the arrestees reach at the time
the arrest was made.11 (This remains true even though the
arrestee has been removed from the immediate area, or has been
restrained, or both, at the time the search is conducted.12) But
there are special rules that govern police authority to open and
search closed containers that they find within this area.
If the container is of the type immediately associated
with the person of the arrestee for example, a purse13 or a
jacket14 then the officers can open and search it.15 However,
if the closed container is not of the type immediately associated
with the person, then the officers can open and search the
container only if they have reason to believe that it contains a
weapon or evidence of the crime for which the person has been
arrested.16 Otherwise, the police are limited to seizing the
container and applying for a warrant to open and search it.17
Thus, one of the primary questions presented in this
appeal is whether the center console of Crawfords car was a
container immediately associated with his person. Although the
center console of a car or truck is designed for the storage of
personal items and is generally accessible to the driver (and
other occupants of the front seat), it is not worn about the
person like a purse or carried upon the person like a jacket. It
is more akin to a briefcase a container which, according to our
supreme court, is not immediately associated with the person.18
We therefore conclude that when the police arrest the driver of a
vehicle, they are not authorized to search the center console of
that vehicle as a matter of course. Rather, a warrantless search
of the console is permissible only if the police have reason to
believe that it contains a weapon or that it contains evidence of
the crime for which the driver has been arrested.
As our supreme court observed in Hinkel v. Anchorage,19
there is generally no evidence associated with the crime of
reckless driving.20 Thus, if the officers warrantless search of
Crawfords console is to be upheld, it must be on the basis that
the officers had reason to believe that the console contained a
weapon.
As we noted earlier, Officer Oruoja stated that he was
concerned that there might be a weapon in Crawfords vehicle.
Further, when the trial court ruled on the suppression motion,
the court noted that Officer Oruoja [had] reported ... some
safety concerns. But the trial court made no finding on the
issue of whether the facts known to Oruoja at the time of the
search provided an articulable and reasonable basis to believe
that the console might contain a weapon. We must therefore
remand this case to the superior court.
We REMAND Crawfords case to the superior court, and we
direct the superior court to make findings as to whether there
was an articulable and reasonable basis to believe that the
center console of Crawfords vehicle might contain a weapon.
Further, because the search in this case actually involved a
small inner compartment of that console, the superior court must
also make findings as to whether there was reason to believe that
the small inner compartment was large enough to contain a typical
weapon or whether there was some reason to believe that Crawford
possessed an atypically small weapon.
The superior court shall transmit its findings to this
court within ninety days and shall serve the findings on the
parties. After the superior court issues its findings, the
parties shall have thirty days to file supplemental memoranda
addressing the superior courts findings. We shall then renew our
consideration of Crawfords appeal.
We retain jurisdiction.
_______________________________
1 AS 28.35.040
2 AS 11.71.040(a)(3)(A).
3 See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska
1974).
4 677 P.2d 1275, 1277 (Alaska App. 1984).
5 See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska
1974).
6 State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001).
7 Id.
8 Wilburn v. State, 816 P.2d 907, 911 (Alaska App. 1991);
see also McCoy v. State, 491 P.2d 127, 132-34 (Alaska 1971)
(independently assessing whether facts support trial courts legal
conclusions).
9 Schraff v. State, 544 P.2d 834, 838 (Alaska 1975).
10 See McCoy, 491 P.2d at 138.
11 See Chimel v. California, 395 U.S. 752, 763, 89 S.Ct.
2034, 2040, 23 L.Ed.2d 685 (1969); Dunbar, 677 P.2d at 1277.
12 Dunbar, 677 P.2d at 1277.
13 Hinkel v. Anchorage, 618 P.2d 1069, 1071 (Alaska 1980).
14 Dunn v. State, 653 P.2d 1071, 1082 (Alaska App. 1982).
15 Id. at 1081.
16 Id. at 1082.
17 Id.
18 Hinkel, 618 P.2d at 1071-72 (citing with approval United
States v. Berry, 560 F.2d 861 (7th Cir. 1977), vacated on other
grounds, 571 F.2d 2 (7th Cir. 1978) (holding that an attache case
should be categorized as luggage and thus governed by the rule
in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.
2d 538 (1977) rather than treated as an article of clothing or
other container immediately associated with the person)).
19 618 P.2d 1069 (Alaska 1980).
20 Id. at 1070.
