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Howard v. State (6/26/2009) ap-2222

Howard v. State (6/26/2009) ap-2222

                             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


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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