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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
| MARTESHIA CLARK, | ) |
| ) Court of Appeals No. A-10170 | |
| Appellant, | ) Trial Court No. 4FA-07-1241 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) |
| ) No. 2264 May 21, 2010 | |
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Douglas
Blankenship, Judge.
Appearances: Margi A. Mock, Assistant
Public Defender, Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Eric A. Ringsmuth, Assistant Attorney
General, Office of Special Prosecution and
Appeals, Anchorage, and Daniel S. Sullivan,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
BOLGER, Judge.
The police detained Marteshia Clark as a passenger in
a reportedly stolen vehicle. The police searched the vehicle,
finding packets of cocaine in a metal cigarette case left on the
backseat. Clark challenges the superior courts conclusion that
the search was justified as a consent search and a search
incident to arrest. We conclude that the police were authorized
to open the cigarette case based both on the vehicle owners
consent to a general search and on the circumstances suggesting
that the case had been left on the backseat of a stolen vehicle.
Background
On January 19, 2006, Susan Roatch notified the
Fairbanks Police Department that her car had been stolen.
Talking with Officer Avery Thompson, Roatch implicated a woman
named Crystal in the theft. While Thompson was talking with
Roatch at her home, Roatchs boyfriend, Jack Brown, telephoned to
report that he had found her vehicle parked on a street in
downtown Fairbanks. The officers then drove to the location
where Brown had seen the car and parked approximately half a
block away from the vehicle to see if any of the possible
suspects would return to the car.
About fifteen minutes later, Marteshia Clark and
Crystal Thomas approached the stolen car. Thomas matched the
physical description given by Roatch. Thomas got into the
drivers seat and Clark sat in the passenger seat. Officer
Thompson activated the patrol cars overhead lights, drew his
weapon, and he and Officer Benjamin Holston directed the women to
get out of the car. The officers handcuffed Clark and Thomas and
searched the women for weapons. Officer Thompson put Thomas into
the back of the patrol car, and when Officer Bruce Barnett
arrived on the scene, the officers placed Clark in the back of
the second patrol car.
After advising Thomas of her Miranda rights, Officer
Thompson asked her about her relationship with Roatch. Thomas
said that she had known Roatch for three months, and that Roatch
had given her permission to use the car.
Officer Thompson then spoke with Roatch, who had
arrived at the scene, and she denied giving Thomas permission to
use the vehicle. Roatch then gave Officer Thompson permission to
search her vehicle for illegal drugs or weapons. Officer
Thompson found clothing, fast food containers, a cell phone,
trash, and a metal cigarette case which was decorated with a
design of marijuana leaves and a rasta character. Roatch denied
ownership of a majority of the items in the car, including the
cigarette case.
The cigarette case was sitting on the backseat of the
car. Officer Thompson opened the case and discovered three
bindles of cocaine inside. Officer Thompson then asked Thomas
about the case, and she denied that it belonged to her. Officer
Thompson did not ask Clark if she owned the cigarette case, and
Clark remained handcuffed in the backseat of the patrol car while
Thompson searched the vehicle.
The officers transported Thomas and Clark to the
Fairbanks Police Station and secured them in separate holding
cells. Officer Thompson and a drug enforcement officer
interviewed Clark at the jail. Clark said that she did not know
that the vehicle was stolen, and that Thomas was giving her a
ride down the street. Clark admitted that she owned the
cigarette case and explained that she was planning to trade the
cocaine in the case for some marijuana.
A grand jury indicted Clark on one count of misconduct
involving a controlled substance in the third degree.1 Clark
moved to suppress the evidence of the cocaine seized from the
cigarette case and the statements she made related to that
seizure, arguing that the search did not fall within an exception
to the warrant requirement.
After an evidentiary hearing, Superior Court Judge
Douglas Blankenship found that Roatch gave Officer Thompson her
general, unlimited consent to search the car and that during the
search, Officer Thompson found the cigarette case. He ruled that
Roatchs denial that she owned the cigarette case did not limit
that consent. Judge Blankenship also found that Clark did not
have an expectation of privacy in the cigarette case since it was
in a stolen car from which she had just been removed.
Judge Blankenship also found that Officer Thompson had
probable cause to arrest Clark for criminal mischief in the fifth
degree for joyriding. Judge Blankenship concluded that the
search of the cigarette case was also justified as a search
incident to Clarks arrest for criminal mischief. The court
denied Clarks motion to suppress and a jury convicted her of
misconduct involving a controlled substance. This appeal
followed.
Discussion
The police may conduct a warrantless search based on
the voluntary consent of a person who has valid control of the
place to be searched.2 Ordinarily, a general consent by the
property owner will allow the police to open closed but unlocked
containers that could contain the object of the search.3 Thus,
an owners general consent to the search of a vehicle for drugs
includes consent to open closed containers found in the vehicle.4
We applied these principles to a similar situation in
Ingram v. State.5 In that case, the defendant left his jacket
and his wallet on the floor of a neighbors apartment, where he
was arrested for his involvement in an LSD transaction.6 After
Ingrams arrest, the neighbor allowed the police to search the
apartment for LSD and marked money.7 We held that the search of
Ingrams jacket and wallet were within the scope of the neighbors
consent, even though the neighbor told the police that those
items did not belong to him.8 We held that Ingram assumed the
risk that the neighbor might consent to a search of the jacket
and wallet by leaving them behind when he was arrested.9
In Ingram, our conclusion that the neighbor had the
authority to agree to a search of Ingrams property was based on
the diminished expectation of privacy held by someone who leaves
property in a neighbors apartment. In the present case, Clark
had a diminished expectation of privacy in her cigarette case for
similar reasons: She apparently left her cigarette case in the
backseat of a stolen vehicle.
The prevailing view of cases from other jurisdictions
is that a passenger has no expectation of privacy in containers
left in a stolen vehicle.10 In response, Clark argues that there
was no evidence establishing that she knew that Roatchs vehicle
was stolen. But that is not the critical question. The critical
question is what information was available to Officer Thompson at
the time of the search.
Judge Blankenship found that Officer Thompson had
probable cause to believe that the vehicle was stolen and that
Clark was guilty of joyriding. These findings were adequately
supported by Officer Thompsons testimony about Roatchs report
that Thomas had stolen her vehicle. Based on this information,
Officer Thompson could have reasonably concluded that Clark had a
reduced expectation of privacy in the containers that were found
in the stolen vehicle.
Moreover, Clark apparently chose to leave the
cigarette case in the backseat of the vehicle rather than to
carry it on her person. Passengers have a reduced interest in
containers that they leave in another persons vehicle.11 This
interest differs from passengers interest in property they carry
on their person.12 At the time of the search Clark had not
admitted that the cigarette case belonged to her. Officer
Thompson could reasonably conclude that Clark had a lesser
interest in the case because it had been left behind on the
backseat.
In summary, Officer Thompson could reasonably conclude
that Clark had a reduced expectation of privacy in the cigarette
case left on the backseat. The officer could also reasonably
conclude that Clark had a reduced privacy interest in the case,
which had been left in a stolen vehicle where she had no
permission to be. Based on these conclusions, the officer could
reasonably conclude that the owners general consent to the search
of her vehicle included the authority to open the cigarette case.
Since the search was justified by the vehicle owners
consent, we are not required to review Judge Blankenships
conclusion that Clark had no expectation of privacy in the
cigarette case,13 or his conclusion that the search was a valid
search incident to Clarks arrest.14 During her police interview
after the search, Clark admitted that she owned the cigarette
case and explained that she was planning to trade the cocaine in
the case for some marijuana. But the circumstances known to the
police at the time of the search were similar to the
circumstances that justified the search in Ingram. Officer
Thompson could therefore reasonably conclude that the vehicle
owner had the authority to consent to a search of property that
had been left in the backseat of a stolen vehicle.
Conclusion
We therefore AFFIRM the superior courts judgment.
_______________________________
1 AS 11.71.030(a)(1).
2 Hilbish v. State, 891 P.2d 841, 848 (Alaska App. 1995).
3 Ingram v. State, 703 P.2d 415, 424 (Alaska App. 1985).
4 Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801,
1804, 114 L. Ed. 2d 297 (1991).
5 703 P.2d 415.
6 Id. at 419-20.
7 Id. at 420.
8 Id. at 424.
9 Id. at 425 n.6 (citing United States v. Matlock, 415 U.S.
164, 171, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242 (1974)).
10 See 6 Wayne R. LaFave, Search & Seizure: A Treatise on
the Fourth Amendment 11.3(e), at 206-07 (4th ed. 2004); Nelson
v. State, 405 So.2d 392, 398 (Ala. Crim. App. 1980), revd on
other grounds, 405 So.2d 401 (Ala. 1981) (holding that passenger
in stolen vehicle lacked standing to object to search of
vehicle); see also State v. Thompson, 490 S.W.2d 50, 51-52 (Mo.
1973); State v. May, 613 S.W. 2d 877, 881 (Mo. App. 1981); Harper
v. State, 440 P.2d 893, 895-98 (Nev. 1968); State v. Scott, 860
P.2d 1005, 1007-08 (Utah App. 1993); State v. Bruski, 727 N.W.
2d 503, 511-13 (Wis. 2007) (holding that defendant did not have
reasonable expectation of privacy in makeup case he left in
vehicle because he did not have permission to be in the vehicle).
11 See Wyoming v. Houghton, 526 U.S. 295, 303, 119 S. Ct.
1297, 1302, 143 L. Ed. 2d 408 (1999) (allowing police to search
passengers purse during warrantless search of vehicle); Marshall
v. State, 198 P.3d 567, 573-74 (Alaska App. 2008) (holding that
passenger lacked standing to object to police officers seizure of
prescription bag he left on dashboard of another persons truck).
12 See United States v. Di Re, 332 U.S. 581, 587, 68 S.
Ct. 222, 225, 92 L. Ed. 210 (1948) (finding that warrantless
search of passengers personal clothing not justified merely as
search incident to search of the vehicle).
13 Compare People v. Dalton, 598 P.2d 467, 472 (Cal. 1979)
(holding that defendant had standing to challenge search of boxes
left in stolen vehicle).
14 See Arizona v. Gant, 556 U.S. ___, 129 S. Ct. 1710, 173
L. Ed. 2d 485 (2009) (defining scope of a vehicle search for
evidence incident to arrest of the driver); Crawford v. State,
138 P.3d 254 (Alaska 2006) (upholding search of the center
console of the defendants vehicle after his arrest); State v.
Joubert, 20 P.3d 1115 (Alaska 2001) (upholding pat-down search of
defendant for evidence of vehicle theft).
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