| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Crawford v. State (06/30/2006) sp-6020
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| KIRK CRAWFORD, | ) |
| ) Supreme Court No. S- 11441 | |
| Petitioner, | ) Court of Appeals No. A-8082 |
| ) Superior Court No. 3AN-S00-2385 CR | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) No. 6020 - June 30, 2006 | |
| Respondent. | ) |
| ) | |
Petition for Hearing from the Court of
Appeals of the State of Alaska, on Appeal
from the Superior Court, Third Judicial
District, Anchorage, John R. Lohff, Judge pro
tem.
Appearances: Brent R. Cole and Colleen J.
Moore, Marston & Cole, P.C., Anchorage, for
Petitioner. Kenneth M. Rosenstein, Assistant
Attorney General, Anchorage, and Gregg D.
Renkes, Attorney General, Juneau, for
Respondent.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
MATTHEWS, Justice, concurring.
I. INTRODUCTION
Kirk Crawford was arrested for reckless driving. After
Crawford was removed from his vehicle, handcuffed, and placed in
the backseat of a police car, an Anchorage police officer
searched the unlocked center console of Crawfords vehicle and
found a small amount of crack cocaine. Crawford claimed the
warrantless search of the console was unconstitutional. The
court of appeals upheld the search on the theory the officer had
a reasonable and articulable basis for his suspicion that the
console contained a weapon. We hold that the search was
reasonable because the unlocked center console of a vehicle is an
item immediately associated with the drivers person. As such, an
unlocked center console can be searched incident to arrest
without a warrant if it was within the arrestees immediate
control at the time of the arrest and the search was reasonably
contemporaneous with the arrest. We therefore affirm.
II. FACTS AND PROCEEDINGS
A. Background
Kirk Crawford was driving northbound on I Street in
Anchorage in his Chevrolet Tahoe on March 23, 2000.1 Anchorage
Police Department Officer Christopher Ritala, sitting in his
police car on the west side of I Street at the corner of 15th
Avenue, saw Crawfords vehicle approaching and estimated that it
was traveling about fifty miles per hour, twenty miles per hour
over the speed limit. He radioed Officer Indrek Oruoja, who was
positioned on the west side of I Street at the corner of 14th
Avenue. Officer Oruoja got a radar reading of fifty miles per
hour on Crawfords vehicle. Officer Oruoja turned on his lights
and siren and followed Crawford. Officer Oruoja testified that
he saw Crawford change from the far right lane to the far left
lane, accelerate, then change back to the far right lane without
using signals. Officer Oruoja testified that the speeding and
erratic lane-changing made him think that something [was] going
on with this guy and he decided to arrest Crawford for reckless
driving.
Officer Oruoja caught up with Crawford just before 9th
Avenue; Crawford pulled over in traffic on I Street. With his
vehicle loudspeaker, Officer Oruoja instructed Crawford to pull
onto 9th Avenue to clear traffic. Officer Oruoja testified that
during this time Crawford repeatedly glanced in his rearview
mirror and was fidgeting in the drivers seat as if moving objects
around. Officer Oruoja observed that Crawford was specifically
making motions down to his lap area and to his right. Officer
Oruoja testified that his observation of those acts concerned him
from a standpoint of safety. He was concerned that Crawford could
either be concealing or producing a weapon.
Officer Oruoja testified that, as he approached
Crawfords vehicle, Crawford appeared to be very nervous, kind of
agitated, jumpy. Officer Oruoja classified Crawfords nervousness
as different, striking him as suspicious instead of just being
nervous. Officer Oruoja testified that he was worried about
weapons at that point.
Officer Oruoja opened Crawfords driver-side door to get
a clear view of his hands and what was going on inside the
vehicle. He testified that Crawford continued to act nervous so
he asked Crawford to get out of the vehicle; the officer guided
Crawford by his jacket sleeve and Crawford complied. As Crawford
got out, Officer Oruoja saw the handle of a baseball bat wedged
between the drivers seat and the center console.
Officer Oruoja had called for assistance when he began
pursuing Crawford, and Officer Ritala responded. Officer Ritala
and Officer Oruoja restrained Crawford with handcuffs. Officer
Oruoja told Crawford that he was under arrest for reckless
driving. About the time Crawford was being put into Officer
Oruojas police car, Officer Oruoja told Officer Ritala that he
had seen a baseball bat in the car. Officer Ritala testified
that he kept an eye on Crawford in the backseat of Officer
Oruojas patrol car while Officer Oruoja returned to Crawfords
vehicle to search it. Both Officer Ritala and Officer Oruoja
admitted that Crawford was handcuffed in the back seat of the
police car when Officer Oruoja first searched Crawfords car.
Officer Oruoja testified that, before searching Crawfords
vehicle, he had no indication that Crawford had committed any
crime other than reckless driving. Officer Oruoja testified that
he suspected Crawford had weapons based on his experience and
that he routinely found firearms on people or concealed in
vehicles in similar situations.
Officer Oruoja testified that he searched [t]he
console, underneath the drivers seat . . . anything within
immediate reach of [Crawford] to look for a weapon. He explained
that, as he approached where Crawford had been seated, he noticed
that the lid to the center console was ajar and that some
currency was hanging out. When he first saw the compartment
ajar, Officer Oruoja was thinking that there could be some sort
of a weapon inside. He testified that, in his experience, many
center consoles have multiple compartments of various sizes, but
that he can conceal his service weapon in his personal vehicles
center console. Officer Oruoja opened the console and saw cash
and what he recognized to be a chunk of crack cocaine and a metal
rod commonly used to smoke crack cocaine. He did not find any
weapons.
Crawford was taken before a magistrate and then
incarcerated in the Cook Inlet Pretrial Facility. An inventory
search of his person revealed a used glass crack pipe in his
jacket, a straw with cocaine residue, a $20 bill containing seven
rocks of cocaine, and $331 in cash.
B. Prior Proceedings
Crawford was indicted for possession of a schedule IIA
controlled substance, a class C felony. He moved to suppress the
drug evidence, arguing that the search did not fall within any of
the exceptions to the warrant requirement. The states opposition
contended that the search of Crawfords vehicle was justified
under the search incident to lawful arrest exception to the
warrant requirement.
The superior court heard the testimony of three
witnesses: Officer Ritala, Officer Oruoja, and Crawford.
Superior Court Judge pro tem. John R. Lohff stated that Chimel v.
California2 applied the doctrine of search incident to lawful
arrest to vehicle searches and authorized a search of the
arrestees person and the area within his immediate control[3]
construing that phrase to mean the area from within which he
might gain possession of a weapon or destructible evidence.
(Citation added.) The superior court noted that Dunbar v. State4
approved of a search of a glove compartment in an investigative
stop of suspects in an armed robbery and found that Dunbar
clearly stated the same limits applied there that would also
apply in a search incident to arrest. The superior court held
that containers such as a glove box or console could be searched
if they were within the suspect[]s immediate control. It denied
Crawfords motion to suppress.
Crawford pleaded no contest to fourth degree misconduct
involving a controlled substance and appealed the denial of his
suppression motion.5 On appeal, the court of appeals recognized
that an officer can search the area within the arrestees reach at
the time the arrest was made even after the arrestee has been
removed from the immediate area, or has been restrained, or both,
at the time the search is conducted.6 But the court of appeals
stated that special rules . . . govern police authority to open
and search closed containers that they find within this area.7
The court held that a center console was not an object
immediately associated with the person and thus 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.8
Because Crawford was arrested for reckless driving,9 it reasoned
that the search of his center console could be justified only if
the arresting officer had reason to believe that the console
contained a weapon.10 The court of appeals remanded to 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.11
The superior court found on remand that Officer Oruoja
had an articulable and reasonable basis to conclude that the
center console might contain a weapon. The court stated that
Crawfords behavior justified a conclusion that he was dangerous
to the public as a whole as well as to Officer Oruoja. The court
based its finding on Officer Oruojas experience as a patrol
officer and his application of this experience when observing
Crawford.
Crawford again appealed, contending that the superior
courts findings were not supported by the evidence.12 The court
of appeals held that there was substantial evidence in the record
to support the superior courts findings.13 The court of appeals
therefore held that the findings were not clearly erroneous and
upheld the search as reasonable.14
Crawford filed a petition for hearing. We granted the
petition and ordered full briefing on the merits and on the issue
of whether Crawfords center console was an item immediately
associated with the person.15
III. DISCUSSION
A. Standard of Review
In reviewing a superior courts denial of a motion to
suppress, we view the facts in a light most favorable to
upholding the ruling.16 Factual findings will not be disturbed
unless they are clearly erroneous.17 Whether factual findings
support the courts legal conclusions is a question of law that we
decide de novo.18 We can sustain a ruling on any theory supported
by the record regardless of whether that theory formed the basis
for the lower courts decision.19
B. The Search of Crawfords Center Console Was
Constitutional.
A warrantless search is per se unreasonable unless it
falls within one of the recognized exceptions to the warrant
requirement.20 One of the four exceptions recognized in Alaska is
search incident to lawful arrest.21 Search incident to lawful
arrest allows the warrantless search of the area within [the
arrestees] immediate control at the time of the arrest to ensure
officer safety and to preserve evidence related to the crime.22
But special rules govern when closed containers can be searched
incident to a lawful arrest and without a warrant.23
Unless exigent circumstances exist, an officer must
first seize items that are not immediately associated with the
person and then obtain a search warrant to inspect their
contents.24 In Metcalfe v. State, we quoted with approval the
following passage from United States v. Chadwick:
Once law enforcement officers have reduced
luggage or other personal property not
immediately associated with the person of the
arrestee to their exclusive control, and
there is no longer any danger that the
arrestee might gain access to the property to
seize a weapon or destroy evidence, a search
of that property is no longer an incident of
the arrest.[25]
But when an item is immediately associated with the person, no
exigency is required to search the item incident to arrest.26
The court of appeals ultimately upheld the search of
Crawfords center console because there was substantial evidence
to support the superior courts finding on remand that Officer
Oruoja had a reasonable and articulable basis for his belief that
the console might contain weapons.27 The court of appeals
reasoned that this finding was necessary to justify the search
because the court of appeals had previously determined that the
console was not an item immediately associated with the person.28
We affirm the court of appealss decision affirming the superior
courts judgment29 but for the reason that the search of Crawfords
center console was permissible because the console was an item
immediately associated with Crawfords person.
The court of appeals concluded that the center console
in a vehicle is more akin to a briefcase, an item which is not
immediately associated with the person,30 than a purse or jacket,
items which are immediately associated with the person.31 Because
the court of appeals determined that the console was not
immediately associated with the person, it concluded 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.32
Crawford contends that this conclusion of the court of
appeals is correct because [t]he console of a vehicle is a
permanent part of the vehicle. It cannot possibly be carried
about or worn by a person. The state argues that a vehicles
console functions similarly to a purse and that [g]iven the
typical use of vehicle consoles and the fact that they are always
in the immediate proximity of a driver, they should be classified
as immediately associated with a person.
We have previously interpreted the phrase items
immediately associated with the person to mean that:
[C]ontainers found in clothing pockets may be
searched. In our view . . . containers such
as purses which are often worn on the person
and generally serve the same function as
clothing pockets are also excepted from the
strict exigency requirement. It would be
possible, of course, to treat containers
found in clothes pockets, such as billfolds,
differently from items such as purses which
are not carried in pockets but serve the same
purpose. However, we can think of no reasons
to justify such a distinction.[33]
In Hinkel, we referred to United States v. Berry for
guidance in classifying which items are immediately associated
with the person.34 In Berry, the Seventh Circuit held that an
attache case was not immediately associated with the person.35
The Seventh Circuit considered the attache cases common usage and
held that a briefcase is not an item carried on an individuals
person in the sense that his clothing or items found in his
pocket are.36 The court reasoned that, unlike a purse, an attache
case may not always be carried with the person but is more like
luggage in that it is often out of a persons reach in Berry, the
suspect had retrieved the attache case from the trunk of a car.37
The court also recognized that a suspects expectation of privacy
diminishes after a lawful arrest, such that a search of the
suspects person and pockets is reasonable.38 But the court held
that the search of the interior of the attache case constituted a
far greater intrusion into Fourth Amendment values. 39
Following the reasoning of Hinkel and Berry, we
conclude here that a vehicles center console can be an item
immediately associated with the drivers person. When a driver is
seated in the vehicle, the center console can generally serve the
same function as clothing pockets.40 Like a pocket, the center
console is commonly used to hold money, a cellular telephone, and
personal hygiene items. Unlike a briefcase, which can be placed
in the trunk or otherwise made inaccessible to the driver, the
center console is permanently located directly next to the
driver. Unless the console is locked, we can see no reason why a
driver would have a greater expectation of privacy in the center
console than in his or her purse or wallet.41
Crawford argues that his center console is easily
distinguished from the purse in Hinkel because the purse was
being returned to [Hinkel] in accordance with police policy at
the time it was searched. Crawford claims that the Hinkel rule
does not allow the search of a center console when the arrestee
no longer has access to it. But Hinkel does not depend on an
arrestees access to the item at the time of the search. If an
item is classified as immediately associated with the person and
the arrestee had access to the item at the time of the arrest, as
we saw above, an officer is justified in searching the item even
after the arrestee is detained so long as the search is
reasonably contemporaneous with the arrest.42
Crawford contends that classifying a center console as
immediately associated with the person would greatly expand the
rule and allow the search of a vehicle in the driveway of a
person arrested in his yard. But that argument ignores the first
requirement for a warrantless search if it is to be a legal
search incident to arrest. The initial inquiry is whether the
arrestee had access to the item at the time of arrest.43 The
immediately associated with the person distinction is irrelevant
unless the item was accessible to the suspect at the time of
arrest.44 An officer cannot search an item, even one that is
immediately associated with the person, without a warrant if that
item was not in the arrestees immediate control at the time of
the arrest.45
Crawford argues that, aside from the distinction for
items immediately associated with the person, the general
justifications underlying the search incident to arrest exception
do not support the search of his console. The Supreme Court in
Chimel v. California held that, in conducting a search incident
to arrest, police officers could search the area within [the
arrestees] immediate control because of a concern for officer
safety and a need to prevent evidence concealment or destruction.46
It is undisputed that because Crawford was arrested for reckless
driving, there was no concern about evidence destruction.47
Crawford contends that, because he was handcuffed in the backseat
of a police car at the time of the search, there was also no
threat to officer safety. But we have held that the twin
rationales for search incident to arrest outlined in Chimel apply
only to define the search area; they do not regulate the scope or
intensity of the search.48 Once the area within the arrestees
immediate control is defined, the search need not be justified by
officer safety or evidence preservation. Warrantless searches of
items immediately associated with the person are justified even
after the arrestee is in police custody because, by their nature,
they do not involve any greater reduction in the arrestees
expectations of privacy than that caused by the arrest itself.49
The search can occur at any time reasonably contemporaneous with
the arrest50 because [w]hile the legal arrest of a person should
not destroy the privacy of his premises, it does for at least a
reasonable time and to a reasonable extent take his own privacy
out of the realm of protection.51
We have upheld searches of items immediately associated
with the person when the search occurred thirty to forty-five
minutes after the suspect was detained.52 Officer Oruoja
testified that he returned to Crawfords vehicle and searched the
console after he and Officer Ritala placed Crawford in the
backseat of Officer Orujoas car. The search of Crawfords console
therefore occurred within a reasonable time of his arrest.
We hold that an unlocked center console of a motor
vehicle is an item immediately associated with the person of the
driver. Crawfords center console was immediately accessible to
him when he was removed from his vehicle and arrested and the
search of the console occurred reasonably contemporaneously with
his arrest. The search in this case was therefore a valid
warrantless search incident to arrest.53
IV. CONCLUSION
Because we conclude that the search of Crawfords center
console was a reasonable search incident to arrest, we AFFIRM.
MATTHEWS, Justice, concurring.
The rule of decision of todays opinion can be stated as
follows. Containers that are (1) immediately associated with the
person of an arrestee, and (2) within the arrestees immediate
control when he is arrested, may be searched without a warrant as
an incident to the arrest, (3) so long as the search is
reasonably contemporaneous with the arrest. Since the center
console of an automobile is (1) a container immediately
associated with the person of the automobile driver, (2) was in
the immediate control of the driver, Crawford, when he was
arrested, and (3) the search was contemporaneous with the arrest,
the search of the console was valid as a search incident to
arrest.
In my view the first premise, that a container must be
an item immediately associated with the person in order to be
searched, is unnecessary. Containers must be within reach of the
arrestee at the time of arrest, but whether containers can be
described as items immediately associated with the person of the
arrestee is irrelevant, as long as the search is reasonably
contemporaneous with the arrest.
The seminal case of Chimel v. California1 expresses the
rule that I believe should apply. The Chimel Court stated that a
closed desk drawer within reach of the person arrested could be
searched, and did so without conditioning the legality of the
search on whether the drawer was an item immediately associated
with the person of the arrestee. Here is the language from
Chimel that I think is important:
When an arrest is made, it is reasonable for
the arresting officer to search the person
arrested in order to remove any weapons that
the latter might seek to use in order to
resist arrest or effect his escape.
Otherwise, the officers safety might well be
endangered, danger, and the arrest itself
frustrated. In addition, it is entirely
reasonable for the arresting officer to
search for and seize any evidence on the
arrestees person in order to prevent its
concealment or destruction. And the area
into which an arrestee might reach in order
to grab a weapon or evidentiary items must,
of course, be governed by a like rule. A gun
on a table or in a drawer in front of one who
is arrested can be as dangerous to the
arresting officer as one concealed in the
clothing of the person arrested. There is
ample justification, therefore, for a search
of the arrestees person and the area within
his immediate control-- construing that
phrase to mean the area from which he might
gain possession of a weapon or destructible
evidence.[2]
In New York v. Belton,3 the Supreme Court of the United
States reiterated the Chimel rule that contents of closed
containers within the reach of the arrestee at the time of the
arrest may be searched:
Such a container may, of course, be searched
whether it is open or closed, since the
justification for the search is not that the
arrestee has no privacy interest in the
container, but that the lawful custodial
arrest justifies the infringement of any
privacy interest the arrestee may have.
Thus, while the Court in Chimel held that the
police could not search all of the drawers in
an arrestees house simply because the police
had arrested him at home, the Court noted
that drawers within an arrestees reach could
be searched because of the danger their
contents might pose to the police.[4]
The Belton Court was discussing any containers found within the
passenger compartment of an automobile when a person in the
automobile is arrested.5 Again, no mention is made of any
requirement that the containers be capable of being described as
items associated with the person of the arrestee.
The immediately associated with the person language was
first referred to by this court in Metcalfe v. State,6 and was
subsequently employed in Hinkel v. Anchorage.7 These cases
relied on a 1977 decision of the Supreme Court of the United
States, United States v. Chadwick.8 The facts of Chadwick as
summarized in Metcalfe were as follows:
In Chadwick federal agents lawfully seized a
locked footlocker from the open trunk of an
automobile during the arrest of those in
possession of the footlocker. More than an
hour after the arrests, acting with probable
cause to believe that the footlocker
contained contraband drugs, but without a
warrant, the agents opened the footlocker and
found large amounts of marijuana.[9]
The Metcalfe court proceeded to explain its understanding of the
Chadwick holding, stating:
The United States Supreme Court, in an
opinion by Burger, C.J., held the search
invalid. More specifically the court held
that the privacy interests protected by the
Fourth Amendment extended to the footlocker,
that the footlocker search was not justified
under the automobile exception, and that no
exigent circumstances were present which
could justify the search without a warrant.
Nor could the search be justified as one
incident to arrest, for as the court
observed:
Once law enforcement
officers have reduced
luggage or other personal
property not immediately
associated with the
person of the arrestee to
their exclusive control,
and there is no longer
any danger that the
arrestee might gain
access to the property to
seize a weapon or destroy
evidence, a search of
that property is no
longer an incident of the
arrest.
433 U.S. at 15 (footnote omitted).[10]
Based on the quote used by the Metcalfe court, one
might think that Chadwick held that personal property not
immediately associated with the person of the arrestee could not
be searched without a warrant once police have reduced it to
their exclusive control. But when more of the language used by
the Chadwick Court concerning this issue is considered, this
conclusion becomes less clear. A more contextual reading
suggests that the Chadwick search was not valid as a search
incident to arrest because the search took place at a time and
place remote from the arrest and was of an item not immediately
associated with the person, rather than, as suggested by the
fragment in the Metcalfe opinion, because the search was of a
container not immediately associated with the person that was in
the exclusive control of the police. A complete excerpt of this
portion of the Chadwick rationale follows:
Such searches may be conducted without a
warrant, and they may also be made whether or
not there is probable cause to believe that
the person arrested may have a weapon or is
about to destroy evidence. The potential
dangers lurking in all custodial arrests make
warrantless searches of items within the
immediate control area reasonable without
requiring the arresting officer to calculate
the probability that weapons or destructible
evidence may be involved. United States v.
Robinson, 414 U.S. 218, 94 S.Ct. 467, 38
L.Ed.2d 427 (1973); Terry v. Ohio, [392 U.S.
1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)].
However, warrantless searches of luggage or
other property seized at the time of an
arrest cannot be justified as incident to
that arrest either if the search is remote in
time or place from the arrest, Preston v.
United States, 376 U.S., at 367, 84 S.Ct., at
883, or no exigency exists. Once law
enforcement officers have reduced luggage or
other personal property not immediately
associated with the person of the arrestee to
their exclusive control, and there is no
longer any danger that the arrestee might
gain access to the property to seize a weapon
or destroy evidence, a search of that
property is no longer an incident of the
arrest.
Here the search was conducted more than
an hour after federal agents had gained
exclusive control of the footlocker and long
after respondents were securely in custody;
the search therefore cannot be viewed as
incidental to the arrest or as justified by
any other exigency.[11]
The Chadwick holding thus could have been based on two
theories. The first, which is suggested by the language quoted
in Metcalfe, is that once arresting officers have possession of a
container not immediately associated with the person it may not
be searched under the search incident to an arrest rationale.
The second is that when arresting officers search a container
that was previously in the possession of an arrestee but the
search takes place at a time and place remote from the arrest,
the search may not be justified as a search incident to an arrest
unless the container is an item immediately associated with the
person of the arrestee.
Four years after Chadwick was decided, the United
States Supreme Court in Belton interpreted Chadwick as holding
simply that a container search that is not close in time or place
to the arrest cannot be justified as a search incident to arrest.
Speaking of Chadwick, and another case, the Court stated:
But neither of those cases involved an
arguably valid search incident to a lawful
custodial arrest. As the Court pointed out
in the Chadwick case: Here the search was
conducted more than an hour after federal
agents had gained exclusive control of the
footlocker and long after respondents were
securely in custody; the search therefore
cannot be viewed as incidental to the arrest
or as justified by any other exigency.[12]
By contrast, the Court strongly rejected the New York Court of
Appeals reliance on the exclusive control rationale of Chadwick.
The Belton Court stated:
It seems to have been the theory of the
Court of Appeals that the search and seizure
in the present case could not have been
incident to the respondents arrest, because
Trooper Nicot, by the very act of searching
the respondents jacket and seizing the
contents of its pocket, had gained exclusive
control of them. But under this fallacious
theory no search or seizure incident to a
lawful custodial arrest would ever be valid;
by seizing an article even on the arrestees
person, an officer may be said to have
reduced that article to his exclusive
control.[13]
The clarification of Chadwick in Belton came after our
decisions in Metcalfe and Hinkel. In Hinkel the defendant was
lawfully arrested in her car. After she was removed from her car
and placed in the backseat of the patrol car, a police officer
took her purse from her vehicle, opened it, and discovered a
loaded handgun.14 The Hinkel search was thus reasonably
contemporaneous with the arrest, but it was of a container that
at the time of the search was controlled by the police. We
upheld the search, relying on the immediately associated with the
person language of Chadwick.15 We used this language to
distinguish between containers that were in the exclusive control
of the police that could be contemporaneously searched incident
to an arrest and those that could not be. We cited a recent
Seventh Circuit case, United States v. Berry,16 and quoted
language from that case indicating that while purses were items
immediately associated with the person, briefcases and luggage
were not.17
Belton demonstrates that this courts reliance on the
exclusive control rationale of Chadwick was, in hindsight, wrong.
But the results in Metcalfe and Hinkel still appear to be
correct. The search of the box that the defendant had just
received by air freight in Metcalfe, like the search in Chadwick,
was of an item not immediately associated with the person and was
both remote in time and place from the arrest. It therefore fell
within the rationale of Chadwick that is still valid. And the
search in Hinkel, as a contemporaneous search of a container that
was within reach of the arrestee when she was arrested, was
permissible, even though the courts inquiry as to whether the
container was an item immediately associated with the defendants
person turned out to be superfluous.
Subsequent to Belton, briefcases and luggage have been
routinely considered appropriate subjects of contemporaneous
searches incident to arrest,18 notwithstanding that after
Chadwick and before Belton they may have been characterized as
items not immediately associated with the person of the
arrestee.19 Also subsequent to Belton most opinions involving
container searches sought to be justified as searches incident to
an arrest do not even inquire whether the container is an item
immediately associated with the person of the arrestee.20
Both Metcalfe and Hinkel are interpretations of the
Fourth Amendment to the United States Constitution; neither
opinion of the court mentions the similar search and seizure
clause of the Alaska Constitution. Thus Metcalfe and Hinkel are
not interpretations of the Alaska Constitution and they do not
enshrine in the state constitution the immediately associated
with the person test. I do not understand todays opinion to take
this step, since it relies on federal and state cases
interpreting the federal constitution and does not state that it
is establishing, or following, a rule of state constitutional
law.
In my opinion, the court should recognize that the
immediately associated with the person factor when applied to a
reasonably contemporaneous search incident to arrest is an
artifact of a reasonable but mistaken reading of United States
Supreme Court case law. Accordingly, it should no longer be used
in circumstances such as are present here. Because its use here,
as in Hinkel, is merely superfluous, I concur with the opinion of
the court. My concern is that in future cases continued use of
this factor will cause confusion as to what properly may be
searched.
Specifically, retention of the factor implies that
containers not immediately associated with the person of an
arrestee but within his reach at the time of his arrest can not
be searched. This could compromise the goals of the search
incident to arrest exception, officer safety and evidence
preservation. Further, since the factor under federal
constitutional law provides a means that separates containers
that are searchable from those that are not as to searches that
are remote in time and place from an arrest, an overly broad
definition of what containers are immediately associated with the
person arguably what we have here21 could lead to
unconstitutional station-house searches.
_______________________________
1 The facts are derived from the testimony of Officer
Ritala, Officer Oruoja, and Crawford at the superior courts
hearing on Crawfords motion to suppress the drug evidence.
2 Chimel v. California, 395 U.S. 752 (1969).
3 Id. at 763.
4 Dunbar v. State, 677 P.2d 1275, 1277 (Alaska App.
1984).
5 See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska
1974).
6 Crawford v. State, 68 P.3d 1281, 1284 (Alaska App.
2003) (Crawford I).
7 Id. at 1284.
8 Id.
9 We have noted that the search of a container incident
to an arrest for reckless driving could not be justified by a
need to preserve evidence because no evidence associated with
reckless driving could be stored in a container. Hinkel v.
Anchorage, 618 P.2d 1069, 1070 (Alaska 1980).
10 Crawford I, 68 P.3d at 1284.
11 Id. at 1285.
12 Crawford v. State, 87 P.3d 824, 826 (Alaska App. 2004)
(Crawford II). Crawford also argued that the superior court
exceeded its authority by hearing additional testimony before
entering its findings on remand. Id. at 825. The court of
appeals recognized the power of the superior court to take
additional evidence, in its discretion, so that it could meet its
obligation to enter the additional findings. Id. Crawfords
petition does not seek review of this determination.
13 Id. at 826.
14 Id.
15 We also asked the parties to brief two other issues
that are not relevant to our disposition of this case.
16 State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001).
17 Id.
18 Id.
19 Id.
20 Erickson v. State, 507 P.2d 508, 514 (Alaska 1973).
21 See McCoy v. State, 491 P.2d 127, 130 (Alaska 1971).
22 Id. at 133 (quoting Chimel v. California, 395 U.S. 752,
763 (1969)).
23 Hinkel v. Anchorage, 618 P.2d 1069 (Alaska 1980)
(distinguishing between items immediately associated with the
person and those that are not).
24 Id. at 1071; see also Metcalfe v. State, 593 P.2d 638,
640 (Alaska 1979) (holding that box held by suspect when arrested
could not be searched without warrant).
25 Metcalfe, 593 P.2d at 640 (quoting United States v.
Chadwick, 433 U.S. 1, 15 (1977)).
26 Hinkel, 618 P.3d at 1071 (observing that exigent
circumstances are not required to search personal property
immediately associated with the person of the arrestee).
27 Crawford II, 87 P.3d 824, 826 (Alaska App. 2004). In
Crawfords first appeal, the court of appeals remanded to the
superior court for findings on whether Officer Oruoja had a
reasonable and articulable basis for his belief that the center
console might have contained a weapon. Crawford I, 68 P.3d 1281,
1285 (Alaska App. 2003). The superior court found on remand that
Officer Oruoja did have a reasonable and articulable basis for
believing that Crawfords console contained a weapon. In
Crawfords second appeal, the court of appeals upheld the search,
holding that there was substantial evidence to support the
superior courts finding. Crawford II, 87 P.3d at 826. Crawford
now argues that there was inadequate evidence to support the
superior courts finding. Because we hold that the center console
is an item immediately associated with the person, the challenged
finding is irrelevant to our analysis. We therefore do not
address the merits of Crawfords inadequate-evidence argument.
28 Crawford I, 68 P.3d at 1284.
29 Crawford II, 87 P.3d at 826.
30 Hinkel, 618 P.2d at 1071-72 (citing with approval
United States v. Berry, 560 F.2d 861, 864 (7th Cir. 1977),
vacated on other grounds, 571 F.2d 2 (7th Cir. 1978))
(classifying attach‚ case as luggage and not immediately
associated with person).
31 Crawford I, 68 P.3d at 1284; see also Hinkel, 618 P.2d
at 1072 (holding purse was item immediately associated with
arrestee); Dunn v. State, 653 P.2d 1071, 1083 (Alaska App. 1982)
(holding jacket was item immediately associated with arrestee).
32 Crawford I, 68 P.3d at 1284.
33 Hinkel, 618 P.2d at 1071.
34 Id. at 1072.
35 United States v. Berry, 560 F.2d 861, 864 (7th Cir.
1977), vacated on other grounds, 571 F.2d 2 (7th Cir. 1978).
36 Id.
37 Id.
38 Id.; see also United States v. Robinson, 414 U.S. 218,
235 (1973). Robinson states:
A custodial arrest of a suspect based on
probable cause is a reasonable intrusion
under the Fourth Amendment; that intrusion
being lawful, a search incident to the arrest
requires no additional justification. It is
the fact of the lawful arrest which
establishes the authority to search, and we
hold that in the case of a lawful custodial
arrest a full search of the person is not
only an exception to the warrant requirement
of the Fourth Amendment, but is also a
reasonable search under that Amendment.
Id.
39 Id. (quoting United States v. Chadwick, 433 U.S. 1, 13
n.8 (1977)).
40 Hinkel, 618 P.2d at 1071.
41 See Chadwick, 433 U.S. at 11 (holding that placing item
inside double-locked footlocker manifested an expectation that
the contents would remain free from public examination); see also
State v. Stroud, 720 P.2d 436, 441 (Wash. 1986) (noting that
police may not conduct warrantless search of vehicles locked
glove compartment, in part because act of locking shows
individual reasonably expects the contents to remain private).
42 Hinkel, 618 P.2d at 1071; see also McCoy v. State, 491
P.2d 127, 138 (Alaska 1971) (holding that search must be roughly
contemporaneous with arrest to be reasonable under search
incident to arrest exception).
43 See State v. Ricks, 816 P.2d 125, 125 (Alaska 1991)
(holding that there was no exigency to justify search of jacket
which was ten to fifteen feet from arrestee at time of arrest).
44 Hinkel, 618 P.2d at 1072 (holding that distinction
between items immediately associated with person and those not
immediately associated with person comes into play once any
danger that the arrestee may gain access to the container to
seize a weapon or destroy evidence no longer exists).
45 Ricks, 816 P.2d at 125 (holding that there was no
exigency to justify search of jacket that was ten to fifteen feet
from arrestee at time of arrest).
46 Chimel v. California, 395 U.S. 752, 763 (1969).
47 See Hinkel, 618 P.2d at 1070 (observing that there is
no concern for evidence destruction in context of reckless
driving).
48 McCoy, 491 P.2d at 133 (While it is clear from Chimel
that the twin rationales . . . supply the appropriate analytic
scheme to define the area within (the arrestees) immediate
control, it by no means follows that they also supply the
appropriate analysis for limiting searches of the arrestees
person. . . .).
49 Hinkel, 618 P.2d at 1072 (quoting United States v.
Berry, 560 F.2d 861, 864 (7th Cir. 1977), vacated on other
grounds, 571 F.2d 2 (7th Cir. 1978).
50 McCoy, 491 P.2d at 138 (holding that search must be
roughly contemporaneous with arrest to fall within search
incident to arrest exception to warrant requirement).
51 Id. at 137 (quoting United States v. DeLeo, 422 F.2d
487, 493 (1st Cir. 1970)).
52 Id. at 128 n.1, 130-31; cf. Middleton v. State, 577
P.2d 1050, 1055 (Alaska 1978) (upholding search of wallet which
involved opening and reading piece of paper twenty to thirty
minutes after suspect arrived at police station); Lemon v. State,
514 P.2d 1151, 1158 (Alaska 1973) (holding that short delay
between bringing suspect to station house and search and seizure
of clothing fell within reasonably contemporaneous guideline of
McCoy).
53 Because we can affirm by applying the immediately
associated with the person standard that has been recognized in
Alaska since 1979, it is not necessary here to consider the
broader question addressed by the concurrence.
1 395 U.S. 752 (1969).
2 Id. at 763.
3 453 U.S. 454 (1981).
4 Id. at 461.
5 Id. at 460. The Belton Court defined the term
container as denoting any object capable of holding another
object. It thus includes closed or open glove compartments,
consoles, or other receptacles located anywhere within the
passenger compartment, as well as luggage, boxes, bags, clothing,
and the like. Id. at 461 n.4.
6 593 P.2d 638 (Alaska 1979).
7 618 P.2d 1069 (Alaska 1980).
8 433 U.S. 1 (1977).
9 Metcalfe, 593 P.2d at 640.
10 Id.
11 Chadwick, 433 U.S. at 14-15 (footnote omitted)
(emphasis added).
12 Belton, 453 U.S. at 461-62.
13 Id. at 461 n.5 (citation omitted).
14 618 P.2d at 1069.
15 Id. at 1071.
16 560 F.2d 861 (7th Cir. 1977).
17 Hinkel, 618 P.2d at 1072.
18 See, e.g., United States v. Tavollacci, 895 F.2d 1423
(D.C. Cir. 1990) (locked suitcase); United States v. Mitchell, 64
F.3d 1105 (7th Cir. 1995) (briefcase); Ricks v. State, 586 A.2d
740 (Md. 1991) (suitcase); Savoie v. State, 422 So. 2d 308 (Fla.
1982) (locked attache case); United States v. Herrera, 810 F.2d
989, 990-91 (10th Cir. 1987) (briefcase).
19 See Hinkel, 618 P.2d 1069; Berry, 560 F.2d 861; United
States v. Schleis, 582 F.2d 1166, 1170 n.3 (8th Cir. 1978)
(reviewing cases holding that luggage and briefcase searches are
subject to suppression under Chadwick).
20 See Tavollacci, 895 F.2d 1423; Mitchell, 64 F.3d 1105;
United States v. Litman, 739 F.2d 137, 139 (4th Cir. 1984);
United States v. Fleming, 677 F.2d 602, 607 (7th Cir. 1982);
Savoie, 422 So. 2d 308; State v. Wickline, 440 N.W.2d 249 (Neb.
1989); Ricks, 586 A.2d 740; see also 3 Wayne R. LaFave, Search
and Seizure 5.5(a), 216-20 (noting Beltons impact on incident to
arrest container searches).
But the immediately associated with the person language
may still be useful when a search is remote in time or place from
the place of arrest. In such cases the phrase may serve to
distinguish between the effects of an arrested person which are
searchable under the search incident to arrest exception at a
time or place remote from the arrest under the authority of
United States v. Edwards, 415 U.S. 804, 809 (1974), and
containers that may be searchable under the incident to arrest
exception if the search is contemporaneous with the arrest but
not if the search is remote in time or place from the arrest.
The seemingly diverse results of our remote search cases of
Metcalfe, 593 P.d 638 (station-house search of a box that
Metcalfe had received by air freight held invalid), and Middleton
v. State, 577 P.2d 1050 (Alaska 1978), and McCoy v. State, 491
P.2d 127 (Alaska 1971) (station-house searches of small
containers carried in clothing of arrestees held valid) may be
reconciled by this factor because the box in Metcalfe was not an
item immediately associated with the person of the arrestee,
whereas the items carried in the clothing of the arrestees in
McCoy and Middleton were.
Care must be taken not to construe the immediately
associated with the person phrase too broadly, for this could
lead to upholding remote searches that violate federal
constitutional standards. In this regard I note that many
federal courts apply a more narrow definition of items
immediately associated with the person than the court uses today.
See, e.g., Curd v. City Court of Judsonia, Arkansas, 141 F.3d
839, 843 (8th Cir. 1998) (concluding that a purse is an item
immediately associated with the person because it is so closely
associated with the person that [it is] identified with and
included within the concept of ones person.); Berry, 560 F.2d at
864 (concluding in dicta that a purse might be characterized as
immediately associated with the person of the arrestee because it
is carried with the person at all times.), vacated on other
grounds by United States v. Berry, 571 F.2d 2, 3 (7th Cir. 1978).
21 See supra note 20.
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
