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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
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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
| PETER F. AMBROSE, | ) |
| ) Court of Appeals No. A-10171 | |
| Appellant, | ) Trial Court No. 4FA-06-1899 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2249 December 18, 2009 |
| ) | |
| Appeal from the Superior Court, Fourth Judi cial District, Fairbanks, Douglas L. Blankenship, Judge. | |
Appearances: Thomas
I. Temple, Law Offices of William R.
Satterberg, Jr., Fairbanks, for the
Appellant. Eric A. Ringsmuth, 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.
BOLGER, Judge.
Peter F. Ambrose argues that he was subject to an
unreasonable search when a trooper removed and opened a bindle of
cocaine from Ambroses shirt pocket following his arrest. We
conclude that the trooper was authorized to remove the object
from Ambroses pocket because, based on its size and feel, the
trooper reasonably believed that it could contain a razor blade.
After removing the object from Ambroses pocket, the trooper was
authorized to open it because he immediately recognized that it
was a bindle that is, a single-purpose container used to carry
illegal drugs.
Background
On May 25, 2006, at about 3:50 p.m., Alaska State
Trooper Nicholas Zito observed Ambrose driving a vehicle without
a rear bumper. Trooper Zito initiated a traffic stop and then
conducted an APSIN check, which revealed that Ambrose was a
convicted sex offender who was not in compliance with his
registration requirements. Trooper Zito arrested Ambrose, placed
him in handcuffs, and then conducted a search incident to the
arrest.
During the pat-down search, Trooper Zito felt a small,
rectangular object in Ambroses left front shirt pocket. Removing
the object, Zito discovered a rectangular folded piece of
newspaper. Zito opened the paper, revealing a white powdery
substance. Zito asked Ambrose if the powder was methamphetamine
and Ambrose replied that it was cocaine, which the trooper
confirmed through a field test.
Ambrose was charged with fourth-degree misconduct
involving a controlled substance1 and failure to register as a
sex offender.2 Ambrose moved to suppress the evidence of the
cocaine, arguing that Trooper Zitos warrantless search exceeded
the permissible bounds of a search incident to arrest. At the
hearing on the motion, Zito testified that he thought that the
object he felt through Ambroses shirt pocket could be something
that Ambrose could use to harm him or that it could be some type
of drug paraphernalia. Zito testified that the object could have
contained a razor blade.
Superior Court Judge Douglas L. Blankenship pointed
out that Ambrose was handcuffed at the time of the search, and
asked Trooper Zito why he was concerned about Ambroses ability to
use a weapon. Zito responded that he feared that Ambrose might
access the weapon inside the correctional center or the patrol
car. Zito also testified that after he removed the object from
Ambroses pocket he immediately recognized that the object was a
bindle, a package commonly used to carry illegal substances.
The judge denied Ambroses motion to suppress, ruling
that Trooper Zitos removal of the package from Ambroses pocket
was permissible based upon the troopers reasonable belief that
the package might contain a weapon. Judge Blankenship also
concluded that Zito was justified in opening the package, based
on this courts opinion in Dunn v. State.3
The charge of failing to register was dismissed
pursuant to a pretrial ruling, and Ambrose was convicted of
misconduct involving a controlled substance in the fourth degree.
Ambrose now appeals.
Discussion
On appeal, Ambrose argues that the trial court erred
in denying his motion to suppress. When we review a ruling on a
motion to suppress, we review the record in the light most
favorable to the trial courts ruling.4 We will not disturb the
trial courts findings of fact unless they are clearly erroneous.5
We use our independent judgment to decide whether the trial
courts factual findings support its legal conclusions.6
Trooper Zito Could Remove the Object From Ambroses
Pocket During a Search for Weapons Incident to
Arrest
Ambrose first argues that Trooper Zito
exceeded the allowable scope of the pat-down search when he
removed the object from Ambroses pocket. Specifically, Ambrose
argues that Zito offered insufficient reasons to support removing
the object, because the trooper only testified that he thought
the object could contain a weapon, such as a razor blade, but he
did not state any articulable facts to support a belief that the
object actually contained a weapon.
Trooper Zitos search was incident to Ambroses arrest
for failure to register as a sex offender. A search incident to
arrest must be limited to a search for evidence of the crime for
which the person is arrested or for any weapons the arrestee
might use to resist arrest or effect his escape.7
In Wagar v. State, the Alaska Supreme Court rejected
the rule that an officer conducting a pat-down search pursuant to
an investigative stop may remove an object only if the officer
has reasonable and articulable facts to support the belief that
the object was a weapon, and held that an officer may remove an
object from a suspects pocket if the officer reasonably believes
that the object could be used as a weapon.8 Investigative stops
are considered minimally intrusive,9 and, when compared to a
search incident to arrest, are of a more limited duration.
Consequently, it follows that an arresting officer may conduct a
search incident to arrest that is at least as intrusive as the
pat-down authorized in Wagar. Thus, an arresting officer may
remove an object from the arrestees pocket during a search
incident to arrest if the officer reasonably believes that the
object might be used as a weapon.
In the present case, Judge Blankenship found that
Trooper Zito reasonably believed that the object in Ambroses
pocket could have contained a weapon. This finding was based on
specific and articulable facts.10 Zito testified that he
believed that the object could have contained a razor blade. The
judge also had the opportunity to personally handle the object
because it was admitted into evidence at the hearing.
(Photographs of the object have been included in the record on
appeal.) Taking this evidence into consideration, Judge
Blankenship could reasonably conclude that Trooper Zito had a
reasonable belief that the object he removed from Ambroses pocket
could have contained a weapon.
Trooper Zito Could Open the Bindle Because He
Immediately Recognized That It Was a Container for
Illegal Drugs
Ambroses second argument is that once Zito removed the
object, he was not permitted to open the object without a search
warrant unless the object reasonably could have contained a
weapon or evidence of the crime for which Ambrose was arrested.
But Zito testified that once he removed the object, it appeared
to be a bindle, a package that individuals use to carry illegal
drugs.
As noted above, Judge Blankenship concluded that
Trooper Zitos decision to open the bindle he took from Ambroses
pocket was based on our decision in Dunn v. State, which allows
an officer to open any containers found on the arrestees person
incident to arrest if the container could reasonably be believed
to contain a weapon or evidence of the crime for which the arrest
was made.11 But we choose to affirm Judge Blankenships ruling on
alternate grounds.12 Our conclusion is based on the line of
cases holding that an officer may open a package in plain view if
it is immediately apparent that the package is a single-purpose
container used to carry illegal drugs.13
For example, in McGuire v. State, a trooper felt what
he believed to be a plastic bag inside McGuires pant pocket
during a pat-down search for weapons following a reported bar
fight.14 The trooper asked McGuire what he had in his pocket,
and McGuire responded that it was marijuana.15 Removing the
baggie, the trooper saw that it contained several bindles, and
the contents of the bindles ultimately field-tested positive for
cocaine.16 We concluded that the trooper was justified in
seizing and opening the bindles because he was certain that the
bindles contained illegal drugs: Once [the trooper] removed the
baggie ... and could see for himself that it contained bindles,
[the trooper] could lawfully open [those] bindles and examine
their contents.17
In the present case, Trooper Zito testified that he
immediately recognized the object he removed from Ambroses pocket
as a bindle, which is a single-purpose package used to carry
illegal drugs. Accordingly, the trooper was justified in opening
the bindle and discovering the cocaine.
Conclusion
Trooper Zito was authorized to remove the object from
Ambroses pocket because the trooper reasonably believed that the
object could contain a razor blade. After removing the object
from Ambroses pocket, the trooper was authorized to open it
because he immediately recognized that it was a bindle, a single-
purpose package used to carry illegal drugs. We therefore AFFIRM
the superior courts judgment.
_______________________________
1 AS 11.71.040(a)(3)(A).
2 AS 11.56.840(a).
3 653 P.2d 1071 (Alaska App. 1982).
4 State v. Wagar, 79 P.3d 644, 650 (Alaska 2003).
5 Id.
6 Id.
7 Jackson v. State, 791 P.2d 1023, 1024 (Alaska App. 1990)
(citing McCoy v. State, 491 P.2d 127, 138 (Alaska 1971)); see
also Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034,
2040, 23 L. Ed. 2d 685 (1969).
8 Wagar, 79 P.3d at 648-50; see Albers v. State, 93 P.3d
473, 475 (Alaska App. 2004).
9 State v. G.B., 769 P.2d 452, 456 (Alaska App. 1989).
10 See Wagar, 79 P.3d at 649.
11 Dunn, 653 P.2d at 1082.
12 See McGee v. State, 614 P.2d 800, 805-06 n.10 (Alaska
1980) (explaining that an appellate court may affirm a trial
court decision on any grounds); Pruitt v. State, 829 P.2d 1197,
1199 n.1 (Alaska App. 1992) (explaining that an appellate court
can affirm a trial court decision on alternative grounds).
13 See, e.g., Reeves v. State, 599 P.2d 727, 738-39
(Alaska 1979); Schraff v. State, 544 P.2d 834, 847 (Alaska 1975);
Howard v. State, 209 P.3d 1044, 1050 (Alaska App. 2009); McGuire
v. State, 70 P.3d 1114, 1116-17 (Alaska App. 2003); Newhall v.
State, 843 P.2d 1254, 1259 (Alaska App. 1992); Brown v. State,
809 P.2d 421, 423 (Alaska App. 1991).
14 McGuire, 70 P.3d at 1115.
15 Id.
16 Id.
17 Id. at 1117 (citing Schraff, 544 P.2d at 847).
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