Opinion
Court of Appeals No. A-10161.
November 18, 2009.
Appeal from the District Court, First Judicial District, Ketchikan, Kevin G. Miller, Judge, Trial Court No. 1KE-07-1110 CR.
Catherine Boruff, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Nicholas Polasky, Assistant District Attorney, Stephen R. West, District Attorney, Ketchikan, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
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 precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Walter R. Johnston III was convicted of sixth-degree misconduct involving a controlled substance. On appeal, he claims that the district court erred when it found that the Alaska State Troopers had probable cause to arrest him during a routine traffic stop for possession of marijuana in the troopers' presence. He also claims that the district court lacked sufficient evidence to find that the search of the vehicle Johnston was in was a valid search incident to arrest, and that the court should have held an evidentiary hearing on this issue. For the reasons explained here, we affirm the judgment of the district court.
AS 11.71.060(a).
Facts and proceedings
On December 5, 2007, Alaska State Trooper Joey Beaudoin stopped a vehicle for an expired registration. Beaudoin contacted both the driver, Fredrick Paddock, and the passenger, Johnston. When Beaudoin spoke to Johnston, he noticed a strong odor of marijuana coming from Johnston's breath and from the interior of the vehicle. Beaudoin asked Johnston about the odor, and Johnston admitted he had been smoking marijuana. Although Johnston said that he had smoked all of the marijuana, Beaudoin ordered Paddock and Johnston out of the vehicle. Based on the strength of the odor, Beaudoin thought that there might be a "large portion" of marijuana inside the vehicle.
Beaudoin requested assistance from other troopers, including a canine unit. After Beaudoin obtained Paddock's consent to search the vehicle, Paddock told him there was marijuana in the vehicle and that the marijuana belonged to Johnston. During the search of Paddock's vehicle, a canine unit detected marijuana.
At trial, Paddock testified that the marijuana was in a transparent plastic container on the passenger side of the vehicle, either on the dashboard or on the center console. Beaudoin confirmed that during the search, the troopers found a pair of gloves "towards the passenger side of the vehicle." When the troopers seized the gloves, they saw two small transparent plastic containers in the gloves. The containers held a small amount of marijuana. Based on the discovery of this marijuana, Beaudoin arrested Johnston for sixth-degree misconduct involving a controlled substance.
Prior to trial, Johnston moved to suppress the marijuana the troopers had seized. He sought suppression on the ground that the troopers were not authorized under Alaska law to conduct an investigative stop to determine whether he possessed, solely for personal use, a small amount of marijuana. The motion contained a request for an evidentiary hearing, but Johnston did not identify any disputed material facts.
In his motion, Johnston claimed that the troopers had improperly extended a lawful traffic stop into an unlawful investigative stop. He argued that under State v. Coleman, the troopers lacked justification to investigate whether he possessed marijuana, because possession of marijuana for personal use is not a serious offense. He also disputed the State's claim that the troopers had probable cause to arrest him during the initial contact, before they searched the vehicle and seized the marijuana. However, Johnston acknowledged that the troopers had consent to search the vehicle, and he did not argue that this consent was invalid.
553 P.2d 40, 46 n. 17 (Alaska 1976).
District Court Judge Kevin G. Miller ruled that the troopers had probable cause to arrest Johnston for sixth-degree misconduct involving a controlled substance during the initial contact with Johnston, and that the troopers were entitled to search the car incident to that arrest.
Johnston filed a motion for reconsideration, arguing that Judge Miller erred in ruling that the search was a valid search incident to arrest because the State had failed to assert that the marijuana was in Johnston's immediate control when he was arrested. Johnston argued again that he was entitled to an evidentiary hearing on this issue. The district court denied the motion for reconsideration. Why we affirm Judge Miller's ruling that there was probable cause to arrest Johnston
On appeal, Johnston claims that Judge Miller erred when he found that Beaudoin had probable cause to arrest Johnston for possessing marijuana in Beaudoin's presence.
Johnston notes that under AS 12.25.030(a), Beaudoin could not arrest him for misdemeanor possession of marijuana unless Beaudoin had probable cause to believe that Johnston was committing, or attempting to commit, the offense in his presence. Johnston asserts that because he told Beaudoin that he had smoked all of the marijuana, Beaudoin did not have probable cause to believe that he still possessed marijuana. He contends that the troopers, until they searched the vehicle, had no evidence that he was committing or attempting to commit a misdemeanor crime in their presence.
"Probable cause to arrest exists if the facts and circumstances known to an officer would support a reasonable belief that an offense has been or is being committed by the suspect. . . ." Probable cause is determined objectively and "requires only a fair probability or substantial chance of criminal activity, not an actual showing that such activity occurred."
State v. Joubert, 20 P.3d 1115, 1118-19 (Alaska 2001).
Id. at 1119 (quoting Van Sandt v. Brown, 944 P.2d 449, 452 (Alaska 1997) (quoting Murdock v. Stout, 54 F.3d 1437, 1441 (9th Cir. 1995) (citing Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)))).
When Beaudoin contacted Johnston, he noticed a strong smell of marijuana coming from inside the car, and Johnston admitted that he had recently smoked marijuana. At trial, Beaudoin explained that he decided to summon the canine unit based on the strong odor coming from inside the vehicle, because this odor led him to believe that there might be a "large portion" of marijuana inside the vehicle.
We conclude that it is appropriate in this case to consider the entire factual record, including the testimony elicited at trial, in determining whether there was probable cause to arrest Johnston. Based on the circumstances known to Beaudoin at the time he contacted Johnston, before he ordered him out of the vehicle and searched it, we conclude that Beaudoin had probable cause to arrest Johnston for possessing marijuana while in Beaudoin's presence. Why we affirm Judge Miller's decision to uphold the search without an evidentiary hearing
See Hubert v. State, 638 P.2d 677, 680 n. 2 (Alaska App. 1981). See also Waters v. State, 64 P.3d 169, 171 (Alaska App. 2003).
See Bertilison v. State, 64 P.3d 180, 185 (Alaska App. 2003) (courts must "analyze the objective information which the police had at the time when they made an arrest in determining whether there was probable cause to make that arrest") (quoting State v. Kendall, 794 P.2d 114, 117 (Alaska App. 1990)).
Johnston also contends that even if the troopers had probable cause to arrest him, Judge Miller erred in upholding the search of the vehicle as a search incident to arrest. Johnston argues that Judge Miller had insufficient evidence to conclude that the gloves found in the vehicle were in Johnston's immediate control when he was arrested. He argues that Judge Miller should have held an evidentiary hearing on this disputed issue.
But in his initial pleadings, Johnston twice acknowledged that the troopers had permission to search the vehicle. He did not retract or qualify this concession when he moved for reconsideration of the court's order denying his motion to suppress. And although Johnston's pleadings arguably implied that the consent to search was not valid, he never asked Judge Miller to rule on the validity of the consent. As a result, the record before Judge Miller showed that the troopers had consent to search the vehicle. This information was supported by the evidence at trial — Beaudoin testified that after contacting Johnston, the troopers searched the vehicle because Paddock gave them permission to do so.
Because the record indicated that the troopers had consent to search the vehicle, Judge Miller did not have to hold an evidentiary hearing to resolve whether the search was a valid search incident to arrest. And because Johnston did not ask Judge Miller to rule on the validity of the consent to search the vehicle, any claim that the consent was invalid was not preserved for appeal. Conclusion
See Moreau v. State, 588 P.2d 275, 280 (Alaska 1978) (claims involving the exclusionary rule are usually "not appropriately raised for the first time on appeal"); H ollstein v. State, 175 P.3d 1288, 1290 n. 3 (Alaska App. 2008) (a litigant must obtain an adverse ruling from the trial court to preserve an issue for appeal).
The district court's judgment is AFFIRMED.