Opinion
Court of Appeals No. A-10773 Trial Court No. 3AN-09-5033 Cr No. 5884
09-26-2012
DERRICK A. SOUTHHALL, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Caitlin Shortell, Shortell Gardner LLC, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael R. Spaan, Judge.
Appearances: Caitlin Shortell, Shortell Gardner LLC, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MANNHEIMER, Judge.
Derrick A. Southhall appeals his convictions for first-degree burglary and second-degree theft. Southhall argues that the police subjected him to an unlawful seizure, followed by a search, and that the superior court therefore should have granted his motion to suppress the evidence obtained during this seizure and search — specifically, statements and physical evidence that formed a key part of the State's case against Southhall.
AS 11.46.300(a)(1) and AS 11.46.130(a)(7), respectively.
For the reasons explained in this opinion, we conclude that the police had probable cause to arrest Southhall when they engaged in the challenged seizure and search. Accordingly, we uphold the superior court's denial of Southhall's suppression motion, and we affirm his convictions.
Underlying facts
In the early morning hours of May 6, 2009, Robert Gentry was visiting the trailer of his girlfriend, Judy Evans. Gentry and Evans were drinking beer and watching television. Gentry noticed that a light had been turned on in the bedroom, and he went to investigate. When he opened the door to the bedroom, Gentry saw that the room was in disarray, and that there was an intruder in the room. Gentry recognized this intruder as a man who had visited Evans's trailer earlier that evening.
Upon Gentry's approach, the intruder jumped out the window. Looking around, Gentry realized that his girlfriend's bank card was missing. (She normally kept the card on top of the dresser.)
Shortly thereafter, Gentry called the police and reported this incident, including a description of the intruder.
Anchorage Police Officer Francis Stanfield was one of the officers who responded to the reported burglary. While Stanfield was en route, the police dispatcher informed him that the suspect was a Native male, approximately 5'8", wearing a black jacket and jeans, and having the first name of "Derrick."
Stanfield was approximately four blocks from the burglarized trailer when he saw a man who closely matched the description of the burglar. This man was a Native male, wearing a dark-colored jacket and jeans. Stanfield made contact with this man — who was later identified as Southhall — and patted him down for weapons.
Following this pat-down, Stanfield asked the man for his name, and also asked him where he was coming from. Southhall told the officer that his name was "Derrick", and he indicated that he was coming from the west — which was the direction of the burglarized trailer. Stanfield proceeded to place Southhall in handcuffs.
Stanfield then asked the man if he had identification; Southhall indicated it was in his left rear pocket. But when Stanfield reached into Southhall's pocket, instead of finding Southhall's identification, Stanfield found a bank card bearing the name of "Judy Evans" (the burglary victim).
Stanfield waited with Southhall while another officer brought Gentry to the scene, to see if Gentry could identify Southhall as the burglar. But when Southhall was shown to Gentry, Gentry declared that he was not the man who had broken into the trailer.
Nevertheless, given the fact that Evans's bank card was in Southhall's pocket, the police maintained custody of Southhall. A third officer, Officer Dan Dye, administered Miranda warnings to Southhall and interviewed him.
Southhall was subsequently charged with the burglary of the trailer and the theft of the bank card.
Prior to trial, Southhall moved to suppress the bank card and the statements he gave to Officer Dye. The superior court denied Southhall's suppression motion. Southhall's case subsequently went to trial, and the jury found him guilty of both charges.
Why we affirm the superior court's decision
For reasons we are about to explain, we conclude that the police had probable cause to arrest Southhall for burglary and theft when Officer Stanfield reached into Southhall's pocket and discovered the stolen bank card. Because the police had probable cause to arrest Southhall, the officer's examination of Southhall's pocket was justifiable as a search incident to arrest — because the bank card was a type of evidence that could be concealed in a person's pocket.
To recapitulate the situation: The police knew that a residential burglary had just ended. The time of day was early morning, and Southhall was found only four blocks away from the burglarized trailer. Southhall closely matched the physical description of the suspect. When Officer Stanfield asked Southhall where he was coming from, Southhall indicated that he was coming from the direction of the burglarized trailer. And when Southhall was asked for his name, he told Stanfield that his name was "Derrick" — the same name ascribed to the intruder.
Based on these facts, we conclude that Stanfield had probable cause to arrest Southhall at that point. Accordingly, Stanfield's ensuing search of Southhall's pocket was justifiable as a search incident to arrest — because the stolen item, a bank card, is a type of item that could be concealed in a pocket. And because the bank card was lawfully discovered, Southhall's ensuing statements to Officer Dye were not the fruit of an unlawful search.
The police may conduct a warrantless search incident to a lawful arrest when the search is roughly contemporaneous with the arrest and the arrest is for an offense, evidence of which could be concealed on the arrestee's person. State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001); McCoy v. State, 491 P.2d 127, 138 (Alaska 1971); Duncan v. State, 178 P.3d 467, 469 (Alaska App. 2008).
--------
On appeal, Southhall argues that once Gentry arrived on the scene and told the police that Southhall was not the man who had broken into Evans's trailer, the police lost any basis for continuing to hold Southhall — and, thus, Southhall's ensuing interview with Officer Dye should be suppressed. We disagree. Even though Gentry told the police that Southhall was not the man, it was fairly obvious that Gentry was wrong — because Southhall had Evans's bank card in his pocket.
Southhall also argues that he did not fully understand his Miranda rights, and that therefore he did not meaningfully waive those rights when he consented to be interviewed by Officer Dye. The superior court considered this contention and ruled, based on the evidence presented at the suppression hearing, that Southhall had indeed understood his rights and had voluntarily waived them.
We conclude that the record supports the superior court's ruling. Moreover, we note that the State did not introduce any evidence of Southhall's statements at his trial — thus mooting the question of whether those statements should have been suppressed.
Conclusion
The judgement of the superior court is AFFIRMED.