Opinion
Court of Appeals No. A-9138.
October 4, 2006.
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge. Trial Court No. 3AN-03-5265 CR.
Allen N. Dayan, Allen N. Dayan Associates, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Shannon Prince was convicted of misconduct involving a controlled substance in the third degree (possession of crack cocaine with the intent to distribute) and misconduct involving weapons in the second degree (possession of a firearm during the commission of a felony offense). Prince's convictions arose after the police stopped him for driving over the speed limit and later arrested him for driving with a suspended license. Following his arrest, the police searched Prince's car and found two handguns, crack cocaine in a mint container, and crack cocaine in a backpack. Prince moved to suppress the evidence found in the mint container and the backpack.
AS 11.71.030(a)(1) and AS 11.61.195(a)(1), respectively.
Superior Court Judge Larry D. Card found that the police saw one handgun in plain view in the back seat and found the other handgun under the passenger's seat. He found that the police were aware that Prince was on probation for a felony offense and that it was illegal for him to possess a concealable firearm. He concluded that the police were justified in searching the backpack for additional firearms incident to an arrest for felon in possession of a concealable firearm even though they had not yet charged him with the offense. He concluded that the crack cocaine, which the police found in the mint container, would have been inevitably discovered by the police. He therefore denied the motion to suppress. Prince appeals from Judge Card's ruling. We affirm.
Factual background
On March 3, 2003, Anchorage Police Officer Roy LeBlanc was operating radar on Third Avenue near Park Street when he clocked a vehicle traveling nine miles over the speed limit. Officer LeBlanc conducted a traffic stop of the vehicle. There were four people in the car. Officer LeBlanc asked the driver, Prince, for his driver's license. Prince stated that he did not have one because there was something wrong with his license status. A dispatcher advised Officer LeBlanc that Prince's license was suspended and that Prince was on adult probation. LeBlanc arrested Prince for driving with a suspended license.
Officer LeBlanc handcuffed Prince and placed him in the back seat of his patrol car. He told Prince that because Prince was driving with his license suspended, he was required to impound Prince's car. Prince asked if Officer LeBlanc would allow his friends to take his cell phone and his niece's backpack with them. But the passengers had already stepped out of the car and had locked all of the doors. Another officer on the scene, Michael Kerle, contacted the passengers and issued them subpoenas.
Officer LeBlanc used a "Slim Jim" to unlock the doors of Prince's car. While Officer LeBlanc did some paperwork, Officer Kerle began what he described as an inventory search. One of the first things that Officer Kerle saw when he looked in the car was the butt of a gun which was on the back seat on the passenger's side. Officer Kerle began the search on the passenger side, and saw a small blue Icebreakers mint container, approximately three inches in diameter, about the size of a hockey puck. Officer Kerle opened the container and saw that it contained crack cocaine. He showed it to Officer LeBlanc. Officer Kerle testified that he opened the container because, from his prior experience, he knew that people sometimes hid drugs in such containers. Officer LeBlanc also testified that the container was large enough to contain a small knife or an explosive, and that it was routine to find such small weapons.
Officer LeBlanc found another handgun under the driver's seat of the car. Officer LeBlanc then saw a child's backpack which was half-stuffed under the front passenger seat. Officer Kerle handed it to him. When Officer LeBlanc opened the backpack, he found 158.63 grams of crack cocaine and $3062 in cash.
Officer LeBlanc then called the probation department to inform them of Prince's arrest. Probation Officer Lana Grist responded to the call. Grist testified that Prince's probation conditions required him to submit to a search of his car for the presence of contraband and prohibited him from possessing firearms, from being in a vehicle with firearms, and from knowingly associating with anyone possessing firearms. Prince's probation conditions also required him to submit to a search of his car or person for weapons or stolen goods. She testified that when she arrived at the scene, she intended to speak to Prince and conduct a probation search of his car. But because the officers had already searched the car, she did not do a probation search.
After Prince was indicted for possession of the crack cocaine with intent to deliver and possession of a firearm during the commission of a drug offense, he moved to suppress the evidence that the police found in the backpack and the mint container. Following an evidentiary hearing in which the police officers testified, Judge Card denied Prince's motion to suppress. Judge Card found that Prince had been arrested and that Officer LeBlanc knew that Prince was on probation for a felony offense and that it was illegal for him to possess a firearm. He noted that the officers found one handgun in plain view and another under the driver's seat. Under these circumstances, he concluded that it was reasonable for the officers to search the backpack because the backpack was large enough to contain a weapon. He found, however, that the mint container was not large enough to hold any typical weapon and was not accessible to Prince. He concluded that the search of the mint container could not be justified as a search incident to Prince's arrest. But he concluded that the search of the mint container was justified under the inevitable discovery doctrine. He found that the probation officer would have searched Prince's vehicle for any contraband, including drugs or weapons. He concluded that she would have searched the mint container, which could have contained ammunition. He rejected Prince's argument that the police could not benefit from the inevitable discovery doctrine because they had acted in bad faith in searching the mint container. Prince appeals from this decision.
Why we uphold Judge Card's ruling
We agree with Judge Card that the police search of the backpack was justified as a search incident to Prince's arrest. Under Alaska law, such a search is limited in scope. The arresting officer may only search the suspect for weapons or for evidence of the crime for which the suspect has been arrested. In addition to searching the suspect's person, the officer may search the area that was accessible to the suspect at the time he was arrested. Within this area, the police are authorized to search items that are immediately associated with the suspect's person such as a coat, a purse, or the closed console next to the driver in the car.
Snider v. State, 958 P.2d 1114, 1116 (Alaska App. 1998).
Crawford v. State, 138 P.3d 254, 259 (Alaska 2006) (search of center console justified as search incident to arrest); Wilburn v. State, 816 P.2d 907, 912-13 (Alaska App. 1991) (search incident to arrest could include personal items in close proximity to suspect at time of investigative stop); Dunn v. State, 653 P.2d 1071, 1079-83 (Alaska App. 1982) (items left by defendant in vehicle after defendant had been removed from vehicle upon arrest were searchable). See also Hinkel v. Anchorage, 618 P.2d 1069, 1071 (Alaska 1980) (purse is an item intimately associated with suspect's person).
In the present case, the police officially arrested Prince for driving with his license suspended. But in determining the scope of a search incident to arrest, we also consider offenses for which the police had an objective basis for arresting the suspect. In this case, the police had an objective basis to arrest Prince for the offense of being a felon in possession of a concealable firearm. The police had seen a handgun in plain view in the back seat and had found another handgun under the driver's seat, a place clearly accessible to Prince at the time that he was arrested. We agree with Judge Card that, under these circumstances, the police were justified in searching the backpack for weapons.
Johnson v. State, 88 P.3d 1137, 1139-40 (Alaska App. 2004).
AS 11.61.200(a)(1) (third-degree weapons misconduct).
The search of the mint container, which the police performed before they searched the backpack, presents a more difficult problem. We conclude, however, that even if the police violated Prince's Fourth Amendment rights when they initially searched the mint container, this error was harmless because, within minutes, the police searched the backpack and discovered cocaine inside it. This discovery provided independent justification for opening the mint container.
As we have explained, the discovery of the two handguns inside Prince's vehicle provided the police with justification for arresting Prince for third-degree weapons misconduct. This, in turn, justified the police in searching the backpack, since the backpack could contain additional evidence pertaining to this crime. This justification for searching the backpack was independent of the discovery of the cocaine inside the mint container.
When the police searched the backpack, they discovered cocaine and over $3000 in cash. Based on this discovery, and independent of the contents of the mint container, the police then had probable cause to arrest Prince for a felony drug offense. According to the testimony presented to the superior court, the mint container was a likely receptacle for more cocaine. Moreover, the mint container was found in the front seat, accessible to Prince at the time of the stop. Accordingly, the police would then have been justified in searching the mint container, even if they had not done so before.
For these reasons, the superior court correctly denied Prince's motion to suppress the contents of the mint container.
In arguing that Officer Kerle acted in bad faith when conducting the search, Prince focuses on Officer Kerle's testimony that he opened the mint container because he thought it might contain drugs. The inevitable discovery doctrine is not available in situations where the police have knowingly or intentionally violated the suspect's rights. Prince argues that because Officer Kerle opened the container, expecting to find drugs, Officer Kerle intentionally violated Prince's rights.
Smith v. State, 948 P.2d 473, 481 (Alaska 1997).
To establish that the police have acted in bad faith, it is not enough that the officer deliberately acted in a manner that happened to violate the suspect's rights. An officer acts in bad faith only if he is aware that his actions violate the suspect's rights.
Smith v. State, 992 P.2d 605, 610 (Alaska App. 1999).
The scope of a search incident to arrest in Alaska differs from federal law, and is in a state of flux under Alaska law. In fact, we cannot say that Officer Kerle violated Prince's rights when he opened the mint container. For instance, the State makes a plausible argument that Officer Kerle was authorized to search the mint container for evidence of the felon in possession charge, such as ammunition for one of the two handguns that the police found. We have chosen not to address this issue, but the State's argument illustrates why there is no basis to find that Officer Kerle acted in bad faith when he opened the mint container. In addition, Officer LeBlanc testified that the mint container could have contained small weapons. Again, we have not addressed this issue. But the existence of these issues indicates why we conclude that Judge Card did not err in finding that the officers did not act in bad faith when they searched the mint container.
Compare Zehrung v. State, 569 P.2d 189, 199-200 (Alaska 1977) with Gustafson v. Florida, 414 U.S. 260, 263-266, 94 S. Ct. 488, 491-92, 38 L. Ed. 2d 456 (1973).
Crawford, 138 P.3d at 260.
See Wilburn, 816 P.2d at 912-13.
Conclusion
We conclude that Judge Card did not err in denying Prince's motion to suppress. We accordingly AFFIRM Prince's convictions.