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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
| JAMES S. HOWARD, | ) |
| ) Court of Appeals No. A-9447 | |
| Appellant, | ) Trial Court No. 4FA-04-02269 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2222 June 26, 2009 |
| ) | |
Appeal from the
Superior Court, Fourth Judicial District,
Fairbanks, Charles R. Pengilly, and Douglas
L. Blankenship, Judges.
Appearances: Sharon Barr, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant. W.H.
Hawley, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage,
and Talis J. Colberg, Attorney General,
Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
James S. Howard was convicted of misconduct involving a
controlled substance in the fourth degree,1 driving with a
suspended, revoked, or expired registration,2 and driving without
evidence of registration.3 Howard appealed to this court,
arguing that the superior court erred in denying his motion to
suppress evidence. We reversed the decision of the superior
court, concluding that Howards admission that he had illegal
drugs in the car was obtained in violation of his Miranda
rights.4
We remanded the case to allow the parties to litigate
what evidence, if any, should be suppressed because it was
tainted by the Miranda violation.5 On remand, Superior Court
Judge Douglas L. Blankenship concluded that the trooper had
probable cause to arrest Howard for possession of illegal drugs
without relying on Howards statement, and that the trooper
lawfully obtained the methamphetamine in a search incident to
Howards arrest. Howard appeals. We uphold Judge Blankenships
decision.
Judge Blankenships findings
On remand, Judge Blankenship conducted an evidentiary
hearing at which the arresting officer, Alaska State Trooper
Andrew Ballesteros, testified. Based upon this testimony and
former testimony in the case, Judge Blankenship made the
following findings: On July 3, 2004, at about 6:18 p.m., Trooper
Ballesteros conducted a valid traffic stop because Howards car
did not have a front license plate. The trooper approached the
car on the drivers side and asked Howard for identification. As
Howard searched for his drivers license, the trooper saw that
Howard was moving his hands around, [and that] they were going
everywhere. Trooper Ballesteros became concerned for his own
safety, so he watched Howards hands closely.
While he was watching Howards hands, the trooper saw a
plastic container on the floorboard, close to Howards right leg.
The container was a food storage container that was clear on the
sides and had a blue plastic top. Ballesteros could identify an
inhaler among several items in the container. Because the
container was in an odd place and because there was a possibility
that the container could contain weapons, Trooper Ballesteros
asked Howard what was in the container. In response, Howard
raised the container up to where the trooper could clearly see
most of the contents through the clear plastic sides. Although
Howard quickly placed the container back on the floor, Trooper
Ballesteros did see a yellow lighter, an inhaler, and two foil
packages, along with other objects he could not identify. The
foil packages were roughly in the shape of triangles,
approximately two and one-half inches by an inch or two.
Based upon his training, Trooper Ballesteros believed
that there was a good possibility that the foil triangles
contained illegal drugs. He knew that it was common for cocaine
and methamphetamine to be packaged in similar foil packets.
Trooper Ballesteros also considered the fact that Howard was
unusually nervous and jumpy. He knew that this behavior might be
an indication that Howard was under the influence of drugs.
Trooper Ballesteros asked Howard to raise the container
up again. Although Howard did raise the container, his hands
continued to move about in a way that convinced the trooper that
something was wrong. He therefore asked Howard to step out of
the car. Trooper Ballesteros secured Howard in handcuffs behind
his back and asked Howard what was in the foil. Howard answered
that he had methamphetamine. Trooper Ballesteros advised Howard
that he was under arrest for possession of methamphetamine. He
asked Howard for permission to search his car; Howard replied,
Yeah.
Trooper Ballesteros and two other troopers who had
arrived at the scene retrieved the plastic container from the
car. It contained the foil packets, one of which had crystalline
powder inside, two plastic straws, a lighter, and an inhaler.
The troopers also found a small Altoids tin in the console of
Howards car, which contained a yellow plastic bag with a small
amount of white powder in it. They also found other drug
paraphernalia in the car, including razor blades, pieces of
plastic straws, thirteen small plastic bags, and a butane fuel
canister.
The crystalline substance in the yellow bag and in the
piece of foil tested positive for methamphetamine; trace amounts
of methamphetamine were also found on the straw. Howard moved to
suppress this evidence, but the court denied the motion. Howard
was then convicted in a bench trial of fourth-degree misconduct
involving a controlled substance,6 driving with a suspended,
revoked, or expired registration,7 and driving without evidence
of registration8 (for not having a front license plate).
Howard appealed his convictions to this court. We
concluded that Howards admission that he had methamphetamine was
obtained in violation of his Miranda rights. We therefore
directed the superior court to determine what evidence, if any,
should be suppressed because of the Miranda violation.
On remand, Judge Blankenship found that the State had
not shown that Howards consent to search the car was untainted by
the earlier violation of his Miranda rights. He also found that
the State had not presented sufficient evidence that the troopers
would have inevitably discovered the methamphetamine. But he
concluded that Trooper Ballesteros had probable cause to arrest
Howard for possession of illegal drugs when he saw the foil
packets in the clear plastic container (before he asked Howard
what was in the foil packets). Judge Blankenship therefore
concluded that the search of the container was justified as a
search incident to Howards lawful arrest. He found that the
clear plastic container was located in the immediate proximity to
Mr. Howard, and was immediately associated with Mr. Howard. Thus
Judge Blankenship ruled:
Upon Mr. Howards arrest, Trooper Ballesteros
was authorized to open and inspect the
contents of the closed container, unless,
under the circumstances, it could not
reasonably be believed that the container
would yield a weapon or evidence of the crime
for which the arrest was made. Here, it was
reasonable for [Trooper] Ballesteros to
search the container and open the foil as he
had probable cause to believe that the foil
contained methamphetamine.
Why we uphold Judge Blankenships decision
Trooper Ballesteros had probable cause to arrest
Howard for possession of illegal drugs
It is uncontested that Trooper Ballesteross original
stop of Howard for a traffic violation was lawful. The next
question is whether Trooper Ballesteros had probable cause to
arrest Howard for possession of illegal drugs. Probable cause
to arrest requires a showing of a fair probability or substantial
chance of criminal activity, not an actual showing that such
activity occurred.9 Obviously, in considering this question, we
are to disregard Howards admission which was obtained in
violation of his Miranda rights.
Howard argues that Trooper Ballesteros was not a drug
investigator and was fairly inexperienced at the time he arrested
Howard. Trooper Ballesteros testified that, at the time he
arrested Howard, his experience consisted of about eight months
of training and four months of patrol. He testified that he had
received training in basic drug identification. He further
testified that his job brought him into contact with people who
used controlled substances just about every day, and that he had
observed the packaging materials used for the controlled
substances. According to Trooper Ballesteros, he was aware at
the time he arrested Howard that methamphetamine was often
carried in plastic baggies or in folded up foil. He also stated
that paraphernalia associated with these drugs included lighters,
straws, or glass pipes.
Howard contends that Trooper Ballesteros admitted that
he did not know for sure what was in the foil. But in context,
Trooper Ballesteros was only admitting that he did not know for
sure what was in the foil packets because he could not see
through the foil. At the hearing after the remand, when he was
asked whether it was likely or probable that the foil could
contain anything other than cocaine or methamphetamine, Trooper
Ballesteros replied that he only thought it could be one of those
two.
In addition, there were other facts Trooper Ballesteros
considered which tended to establish probable cause to arrest
Howard. For instance, Trooper Ballesteros testified, Its normal
to be nervous. [But Howard] was overly nervous. And ... he just
wasnt acting right. Under the facts found by Judge Blankenship,
we conclude that Trooper Ballesteros had probable cause to arrest
Howard for possession of illegal drugs before he asked Howard
what was inside the plastic container.
Search incident to arrest
Having upheld Judge Blankenships conclusion that
Trooper Ballesteros legally arrested Howard, our next question is
whether Trooper Ballesteros could search the plastic container
incident to that arrest. In Crawford v. State,10 the Alaska
Supreme Court observed that police are allowed to search the area
in the immediate control of an arrestee to ensure officer safety
and to preserve evidence related to the crime.11 But, under
Alaska law, the police can search closed containers without a
warrant only if exigent circumstances exist or if the item is
immediately associated with the person.12
In Crawford, the court held that when the police
lawfully arrest the driver of a motor vehicle, an unlocked center
console of a motor vehicle is an item immediately associated with
the person of the driver.13 Because the center console was
immediately accessible to Crawford when he was removed from his
car and arrested, and because the search of the console occurred
reasonably contemporaneously with his arrest, the court held that
the search was a valid warrantless search incident to arrest.14
Recently, in Lyons v. State,15 we applied the reasoning of
Crawford to conclude that an unlocked glove box could also be
searched incident to the drivers arrest.
Applying Crawford, Judge Blankenship concluded that the
plastic container was immediately associated with Mr. Howard and
therefore could be searched incident to Howards arrest. We agree
with that conclusion. The container was right next to Howards
leg. It was a clear plastic container. When Trooper Ballesteros
became concerned that the container might possibly contain
weapons, he asked Howard what was in the container. Howard
raised the container up so that the trooper could see the
contents. Consequently, before he searched the container the
trooper had already seen the yellow lighter, the inhaler, and the
foil packets, which he concluded probably contained illegal
drugs. Given the location of the plastic container and Trooper
Ballesteross observation of it, we conclude that the plastic
container was immediately associated with the person. Therefore,
Trooper Ballesteros could search the plastic container incident
to Howards arrest.
Howard next argues that even if Trooper Ballesteros
could search the plastic container he could not legally open the
foil packets without first obtaining a search warrant. However,
we have found that Trooper Ballesteross search of the container
was a lawful search incident to Howards arrest for illegal drugs.
Therefore, he was authorized to search for evidence of the crime
for which Howard had been arrested.
In Middleton v. State,16 the defendant was arrested
for an armed robbery of a liquor store and taken to the police
station. At the station, the police required her to empty her
pockets.17 When the police searched Middletons wallet, they
discovered a folded piece of paper. They unfolded the paper and
found a sketch of a floor plan of the liquor store that had been
robbed.18 Middleton argued that, even if the search of her
wallet was constitutional, the police had no authority to open
the folded piece of paper without a warrant.19 But the Alaska
Supreme Court held that the police could open the paper because
it was an integral part of the search for evidence.20 In other
words, the search was permissible as a search incident to arrest;
the police could search Middleton for evidence of the crime for
which she had been arrested the armed robbery of the liquor
store.
In a later case, Dunn v. State,21 we summarized this
law concerning the search of closed containers incident to
arrest:
[U]pon the lawful, non-pretextual arrest of
an individual for a crime, evidence of which
could be concealed on the person, a search of
the arrestees person, his clothing and
articles which, akin to clothing, are
immediately associated with the person of the
arrestee may be searched at the time of the
arrest, or within a reasonable period
thereafter. As long as the search is
confined within these limits, it is
permissible for officers to open and inspect
the contents of any closed containers found,
unless, under the circumstances, it could not
reasonably be believed that the container
would yield ... evidence of the crime for
which the arrest was made.[22]
Based on this authority, we uphold Judge Blankenships
decision that Trooper Ballesteross search of the foil packets in
the plastic container was a valid search incident to Howards
arrest.
Plain view
Howard argues that the State should have to justify the
search under the plain view exception to the warrant requirement.
Since we have concluded that Trooper Ballesteross search was
justified as a search incident to arrest, the State does not need
to justify the search under the plain view exception. However,
we conclude that under the circumstances of this case, the search
was also justified under the plain view exception to the warrant
requirement.
In Newhall v. State23 we held that a police officer may
open a package under the plain view theory only if the contents
of the container were identifiable to a virtual certainty.24 In
his concurring opinion in Newhall, Chief Judge Bryner pointed out
that a high degree of certainty as to the presence of contraband
is not the sole prerequisite to a warrantless search of a closed,
opaque container under the plain view doctrine.25 Because the
core concern of the warrant requirement is privacy, the pivotal
inquiry must be whether observation of the unopened container
amounts to a virtual, if not literal, observation of its contents
an equivalent to the plain view of [the contraband] itself. 26 If
such equivalency exists, all reasonable expectation of privacy in
the contents of the container ceases:
the plain view exception is founded on the
theory that there can be no reasonable
expectation of privacy when contraband is in
plain view. It is for this reason that the
doctrine allows the warrantless opening of a
properly seized container such as a bottle
or a plastic bag which is transparent and
unmistakably reveals its contents to be
contraband. No reasonable person could
maintain that any vestige of privacy remains
in the container.[27]
In Newhall, the trooper had a warrant to search a
suspicious package for alcohol.28 The trooper opened the package
under authority of the warrant and discovered the alcohol, which
was being brought into a village in violation of a local option
law.29 But the trooper also discovered another package which he
assumed contained illegal drugs.30 The trooper opened the second
package and found marijuana.31 Therefore in Newhall, unlike in
this case, the troopers authority to search arose only from the
warrant, which allowed him to search for alcohol.32 The trooper
was not authorized to exceed that authority even if he had
abundant probable cause.33 The trooper could search the second
package only if its contents were in plain view,34 such that [n]o
reasonable person could maintain that any vestige of privacy
remain[ed] in the container.35
A common drug container presents a different
circumstance because its content may be inferred from the package
itself. In Reeves v. State,36 the Alaska Supreme Court applied
the plain view exception in a case where a correctional officer
found an opaque balloon on Reeves during a pre-incarceration
inventory search.37 The officer unwrapped the balloon and found
a brownish colored powdery substance which was later identified
as heroin.38 In determining whether the search of the contents
of the balloon was justified under the plain view exception to
the warrant requirement, the supreme court held that the officer
could search the container if he had probable cause: the
question precisely posed in the context of this case is whether
the correctional officers seizure and search of the balloon was
based on his reasonable judgment prior to the seizure that the
balloon contained contraband and whether that belief was grounded
upon probable cause.39
We applied this same standard in Brown v. State.40
Therefore, under Alaska case law, applying the plain view
exception to common drug containers where an officer has probable
cause to arrest, the question is whether the officer had probable
cause to conclude that the container held contraband.
Since we have upheld Judge Blankenships finding that
Trooper Ballesteros had probable cause to believe that the foil
packets contained either cocaine or methamphetamine, the trooper
was authorized to open the foil packets without a warrant under
the plain view exception to the warrant requirement. We
accordingly conclude that the superior court did not err in
denying Howards motion to suppress.
The judgment of the superior court is AFFIRMED.
MANNHEIMER, Judge, concurring.
I agree with my colleagues that the evidence in this
case was lawfully seized and searched, but I disagree with the
lead opinions analysis of why this is so. In particular, I
disagree with Judge Coatss conclusion that the plastic storage
container was an article immediately associated with [Howards]
person.
Judge Coats reaches this conclusion because the plastic
container was found at Howards feet, and because the contents of
this container were items personal to Howard (for example, his
inhaler). But this analysis of the issue is inconsistent with
the analysis adopted by the Alaska Supreme Court in Crawford v.
State, 138 P.3d 254, 258-262 (Alaska 2006).
In Crawford, the supreme court held that the center
console of a car is a closed container that is immediately
associated with the person of the driver. 138 P.3d at 262.
Conceivably, this conclusion might support the result reached by
my colleagues in this case because the plastic storage container
found at Howards feet might be analogized to the center console
of a vehicle.
But in Crawford, the supreme court re-affirmed its
adherence to the holding of the Seventh Circuit in United States
v. Berry, 560 F.2d 861, 864-65 (7th Cir. 1977)1 the holding that
an attach‚ case is not a closed container that is immediately
associated with the person, even though an attach‚ case is often
employed to carry items that are personal to its owner.
According to Berry and Crawford, the reason an attach‚ case is
not immediately associated with the person is that it is not ...
carried on an individuals person in the sense that his clothing
or items found in his pocket are. 560 F.2d at 864.
Relying on Berry, our supreme court in Crawford
reasoned that an attach‚ case or briefcase is unlike a purse
because these containers are not always ... carried with the
person. Crawford, 138 P.3d at 260 (citing Berry, 560 F.2d at
864). Rather, an attach‚ case or briefcase is more like
luggage[,] in that it is often out of a persons reach for
instance, carried or stored in the trunk of a car. Id.
Applying these same criteria to the plastic storage
container in Howards case, I conclude that the plastic storage
container is not an article that is immediately associated with
[Howards] person. True, people often use these plastic storage
containers to carry household items or other items of a personal
nature (as well as to store food, which is the containers primary
intended function). But these storage containers do not fit in a
persons pockets, and they are not normally carried continuously
on ones person like a purse. Rather, they are like the attach‚
case in Berry. They function like small pieces of luggage.
True, they are often carried in the passenger compartment of a
car, but they are just as often and just as easily stored in
the trunk of the car, or in some other place not immediately
accessible to the owner.
Judge Coatss analysis of this question ultimately leads
to results that are flatly inconsistent with Crawford and the
recognized law of search and seizure. The same two factors that
Judge Coats relies on (1) the fact that the storage container
was found next to Howards body, and (2) the fact that the storage
container apparently contained items that were personal to Howard
might apply to almost any attach‚ case, backpack, duffel, or
small suitcase. But under Crawford, containers of this nature
are not subject to warrantless search.
For these reasons, I can not join my colleagues in
declaring the plastic storage container to be an item immediately
associated with [Howards] person.
I conclude, nevertheless, that the search of the
plastic container was lawful because this particular container
was transparent, and (according to the officers testimony) its
contents were in plain view.
_______________________________
1 AS 11.71.040(a)(3)(A).
2 AS 28.10.471.
3 AS 28.10.461.
4 Howard v. State, Alaska App. Memorandum Opinion and
Judgment No. 5284 (Dec. 19, 2007), 2007 WL 4410358 (citing
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966)).
5 Id. at 7-8, 2007 WL 4410358 at *4.
6 AS 11.71.040(a)(3)(A).
7 AS 28.10.471.
8 AS 28.10.461.
9 State v. Joubert, 20 P.3d 1115, 1119 (Alaska 2001).
10 138 P.3d 254 (Alaska 2006).
11 Id. at 258.
12 Id. at 259.
13 Id. at 262.
14 Id.
15 182 P.3d 649 (Alaska App. 2008).
16 577 P.2d 1050 (Alaska 1978).
17 Id. at 1055.
18 Id. at 1051-52, 1055.
19 Id. at 1055.
20 Id.
21 653 P.2d 1071 (Alaska App. 1982).
22 Id. at 1082.
23 843 P.2d 1254 (Alaska App. 1992).
24 Id. at 1259 (footnote omitted).
25 Id. at 1261 (Bryner, C.J., concurring).
26 Id. (Bryner, C.J., concurring) (citation omitted).
27 Id. at 1261 (Bryner, C.J., concurring).
28 Id. at 1256.
29 Id.
30 Id.
31 Id.
32 Id. at 1256-57.
33 Id. at 1257.
34 Id.
35 Id. at 1261 (Bryner, C.J., concurring).
36 599 P.2d 727 (Alaska 1979).
37 Id. at 738.
38 Id. at 730.
39 Id. at 739. See also Newhall, 843 P.2d at 1260 & n.4
(It is possible that in deciding [Reeves] the supreme court was
influenced by the fact that a balloon could be one of those rare
single-purpose containers which by their very nature cannot
support any reasonable expectation of privacy because their
contents can be inferred from their outward appearance. )
(quoting Texas v. Brown, 460 U.S. 730, 750-51, 103 S. Ct. 1535,
1548, 75 L. Ed. 2d 502 (1983) (Stevens, J., concurring)).
40 809 P.2d 421, 423 (Alaska App. 1991) (holding that the
search of a balloon was justified under the plain view exception
where the contraband nature of the balloon ... was immediately
apparent to the officer who seized it).
1 Later vacated as improvidently rendered: 571 F.2d 2 (7th
Cir. 1978).
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