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Ambrose v. State (12/18/2009) ap-2249

Ambrose v. State (12/18/2009) ap-2249

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts.

             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


PETER F. AMBROSE, )
) Court of Appeals No. A-10171
Appellant, ) Trial Court No. 4FA-06-1899 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2249 December 18, 2009
)
Appeal from the Superior Court, Fourth Judi cial District, Fairbanks, Douglas L. Blankenship, Judge.
Appearances:   Thomas
          I.   Temple,  Law  Offices  of  William   R.
          Satterberg,   Jr.,   Fairbanks,   for    the
          Appellant.   Eric  A.  Ringsmuth,  Assistant
          Attorney   General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,  and
          Talis  J. Colberg, Attorney General, Juneau,
          for the Appellee.

          Before:   Coats, Chief Judge, and Mannheimer
          and Bolger, Judges.

          BOLGER, Judge.
          
          Peter  F.  Ambrose  argues that he was  subject  to  an
unreasonable search when a trooper removed and opened a bindle of
cocaine  from  Ambroses shirt pocket following  his  arrest.   We
conclude  that  the trooper was authorized to remove  the  object
from  Ambroses  pocket because, based on its size and  feel,  the
trooper reasonably believed that it could contain a razor  blade.
After  removing the object from Ambroses pocket, the trooper  was
authorized to open it because he immediately recognized  that  it
was  a  bindle  that is, a single-purpose container used to carry
illegal drugs.

     Background
          On  May  25,  2006,  at about 3:50 p.m.,  Alaska  State
Trooper  Nicholas Zito observed Ambrose driving a vehicle without
a  rear  bumper.  Trooper Zito initiated a traffic stop and  then
conducted  an  APSIN  check, which revealed that  Ambrose  was  a
convicted  sex  offender  who  was not  in  compliance  with  his
registration requirements.  Trooper Zito arrested Ambrose, placed
him  in  handcuffs, and then conducted a search incident  to  the
arrest.
          During  the pat-down search, Trooper Zito felt a small,
rectangular object in Ambroses left front shirt pocket.  Removing
the  object,  Zito  discovered  a  rectangular  folded  piece  of
newspaper.   Zito  opened the paper, revealing  a  white  powdery
substance.   Zito asked Ambrose if the powder was methamphetamine
and  Ambrose  replied  that  it was cocaine,  which  the  trooper
confirmed through a field test.
          Ambrose   was  charged  with  fourth-degree  misconduct
involving  a controlled substance1 and failure to register  as  a
sex  offender.2   Ambrose moved to suppress the evidence  of  the
cocaine,  arguing that Trooper Zitos warrantless search  exceeded
the  permissible bounds of a search incident to arrest.   At  the
hearing  on the motion, Zito testified that he thought  that  the
object  he  felt through Ambroses shirt pocket could be something
that  Ambrose could use to harm him or that it could be some type
of drug paraphernalia.  Zito testified that the object could have
contained a razor blade.
          Superior  Court  Judge Douglas L.  Blankenship  pointed
out  that  Ambrose was handcuffed at the time of the search,  and
asked Trooper Zito why he was concerned about Ambroses ability to
use  a  weapon.  Zito responded that he feared that Ambrose might
access  the  weapon inside the correctional center or the  patrol
car.   Zito also testified that after he removed the object  from
Ambroses pocket he immediately recognized that the object  was  a
bindle, a package commonly used to carry illegal substances.
          The  judge  denied Ambroses motion to suppress,  ruling
that  Trooper  Zitos removal of the package from Ambroses  pocket
was  permissible based upon the troopers reasonable  belief  that
the  package  might  contain a weapon.   Judge  Blankenship  also
concluded  that Zito was justified in opening the package,  based
on this courts opinion in Dunn v. State.3
          The   charge  of  failing  to  register  was  dismissed
pursuant  to  a  pretrial ruling, and Ambrose  was  convicted  of
misconduct involving a controlled substance in the fourth degree.
Ambrose now appeals.

     Discussion
          On  appeal,  Ambrose argues that the trial court  erred
in denying his motion to suppress.  When we review a ruling on  a
motion  to  suppress,  we review the record  in  the  light  most
favorable  to the trial courts ruling.4  We will not disturb  the
trial courts findings of fact unless they are clearly erroneous.5
We  use  our  independent judgment to decide  whether  the  trial
courts factual findings support its legal conclusions.6
             Trooper  Zito Could Remove the Object From  Ambroses
          Pocket  During     a  Search for  Weapons  Incident  to
          Arrest
                        Ambrose  first argues that  Trooper  Zito
exceeded  the  allowable  scope of the pat-down  search  when  he
removed  the object from Ambroses pocket.  Specifically,  Ambrose
argues that Zito offered insufficient reasons to support removing
the  object, because the trooper only testified that  he  thought
the object could contain a weapon, such as a razor blade, but  he
did  not state any articulable facts to support a belief that the
object actually contained a weapon.
            Trooper Zitos search was incident to Ambroses  arrest
for failure to register as a sex offender.  A search incident  to
arrest must be limited to a search for evidence of the crime  for
which  the  person  is arrested or for any weapons  the  arrestee
might use to resist arrest or effect his escape.7
          In  Wagar  v. State, the Alaska Supreme Court  rejected
the rule that an officer conducting a pat-down search pursuant to
an  investigative stop may remove an object only if  the  officer
has  reasonable and articulable facts to support the belief  that
the  object was a weapon, and held that an officer may remove  an
object  from a suspects pocket if the officer reasonably believes
that  the object could be used as a weapon.8  Investigative stops
are  considered  minimally intrusive,9 and, when  compared  to  a
search  incident  to  arrest, are of  a  more  limited  duration.
Consequently, it follows that an arresting officer may conduct  a
search  incident to arrest that is at least as intrusive  as  the
pat-down  authorized  in Wagar.  Thus, an arresting  officer  may
remove  an  object  from  the arrestees pocket  during  a  search
incident  to arrest if the officer reasonably believes  that  the
object might be used as a weapon.
          In  the  present  case,  Judge Blankenship  found  that
Trooper  Zito  reasonably believed that the  object  in  Ambroses
pocket could have contained a weapon.  This finding was based  on
specific  and  articulable  facts.10   Zito  testified  that   he
believed that the object could have contained a razor blade.  The
judge  also  had the opportunity to personally handle the  object
because   it   was  admitted  into  evidence  at   the   hearing.
(Photographs  of the object have been included in the  record  on
appeal.)    Taking   this  evidence  into  consideration,   Judge
Blankenship  could reasonably conclude that Trooper  Zito  had  a
reasonable belief that the object he removed from Ambroses pocket
could have contained a weapon.

          Trooper   Zito  Could  Open  the  Bindle   Because   He
          Immediately  Recognized That It  Was  a  Container  for
          Illegal Drugs
           Ambroses second argument is that once Zito removed the
object, he was not permitted to open the object without a  search
warrant  unless  the  object reasonably could  have  contained  a
weapon  or  evidence of the crime for which Ambrose was arrested.
But  Zito  testified that once he removed the object, it appeared
to  be  a bindle, a package that individuals use to carry illegal
drugs.
          As   noted  above,  Judge  Blankenship  concluded  that
Trooper  Zitos decision to open the bindle he took from  Ambroses
pocket  was based on our decision in Dunn v. State, which  allows
an  officer to open any containers found on the arrestees  person
incident  to arrest if the container could reasonably be believed
to contain a weapon or evidence of the crime for which the arrest
was made.11  But we choose to affirm Judge Blankenships ruling on
alternate  grounds.12  Our conclusion is based  on  the  line  of
cases holding that an officer may open a package in plain view if
it  is  immediately apparent that the package is a single-purpose
container used to carry illegal drugs.13
          For  example, in McGuire v. State, a trooper felt  what
he  believed  to  be  a plastic bag inside McGuires  pant  pocket
during  a  pat-down search for weapons following a  reported  bar
fight.14   The trooper asked McGuire what he had in  his  pocket,
and  McGuire  responded  that it was marijuana.15   Removing  the
baggie,  the  trooper saw that it contained several bindles,  and
the  contents of the bindles ultimately field-tested positive for
cocaine.16   We  concluded   that the trooper  was  justified  in
seizing  and opening the bindles because he was certain that  the
bindles contained illegal drugs:  Once [the trooper] removed  the
baggie  ... and could see for himself that it contained  bindles,
[the  trooper]  could lawfully open [those] bindles  and  examine
their contents.17
          In  the  present case, Trooper Zito testified  that  he
immediately recognized the object he removed from Ambroses pocket
as  a  bindle,  which is a single-purpose package used  to  carry
illegal drugs.  Accordingly, the trooper was justified in opening
the bindle and discovering the cocaine.

     Conclusion
          Trooper  Zito was authorized to remove the object  from
Ambroses pocket because the trooper reasonably believed that  the
object  could contain a razor blade.  After removing  the  object
from  Ambroses  pocket,  the trooper was authorized  to  open  it
because he immediately recognized that it was a bindle, a single-
purpose package used to carry illegal drugs.  We therefore AFFIRM
the superior courts judgment.
_______________________________
     1 AS 11.71.040(a)(3)(A).

     2 AS 11.56.840(a).

     3 653 P.2d 1071 (Alaska App. 1982).

     4 State v. Wagar, 79 P.3d 644, 650 (Alaska 2003).

     5 Id.

     6 Id.

     7  Jackson v. State, 791 P.2d 1023, 1024 (Alaska App.  1990)
(citing  McCoy  v. State, 491 P.2d 127, 138 (Alaska  1971));  see
also  Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034,
2040, 23 L. Ed. 2d 685 (1969).

     8  Wagar,  79 P.3d at 648-50; see Albers v. State,  93  P.3d
473, 475 (Alaska App. 2004).

     9 State v. G.B., 769 P.2d 452, 456 (Alaska App. 1989).

     10   See Wagar, 79 P.3d at 649.

     11   Dunn, 653 P.2d at 1082.

     12    See  McGee v. State, 614 P.2d 800, 805-06 n.10 (Alaska
1980)  (explaining  that an appellate court may  affirm  a  trial
court  decision on any grounds); Pruitt v. State, 829 P.2d  1197,
1199  n.1 (Alaska App. 1992) (explaining that an appellate  court
can affirm a trial court decision on alternative grounds).

     13    See,  e.g.,  Reeves  v. State, 599  P.2d  727,  738-39
(Alaska 1979); Schraff v. State, 544 P.2d 834, 847 (Alaska 1975);
Howard  v. State, 209 P.3d 1044, 1050 (Alaska App. 2009); McGuire
v.  State,  70 P.3d 1114, 1116-17 (Alaska App. 2003); Newhall  v.
State,  843 P.2d 1254, 1259 (Alaska App. 1992); Brown  v.  State,
809 P.2d 421, 423 (Alaska App. 1991).

     14   McGuire, 70 P.3d at 1115.

     15   Id.

     16   Id.

     17   Id. at 1117 (citing Schraff, 544 P.2d at 847).

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