Made available by Touch N' Go Systems, Inc. and
This was Gottstein but needs to change to what?
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 274-9493 This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


Rogers v. State (7/31/2015) ap-2465

Rogers v. State (7/31/2015) ap-2465

                                                    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 @ akcourts.us
  



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



KYLE ADRIAN ROGERS,  

                                                                   Court of Appeals No. A-11071  

                                   Appellant,                    Trial Court No. 3AN-07-4598 CR  



                           v.  

                                                                              O P I N I O N 

STATE OF ALASKA,  



                                   Appellee.                            No. 2465 - July 31, 2015  



                       eal   from   the   Superior   Court,   Third   Judicial   District,  

                  App                                                      

                  Anchorage, Peter G. Ashman, Judge.  



                  Appearances:  Hannah E. King, Assistant Public Defender, and   

                  Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                  Diane  L.  Wendlandt,  Assistant  Attorney  General,  Office  of  

                  Special Prosecutions and Appeals, Anchorage, and Michael C.  

                                                                                    

                  Geraghty, Attorney General, Juneau, for the Appellee.  



                  Before:  Mannheimer, Chief Judge, Allard, Judge, and Hanley,  

                                                                 

                  District Court Judge. *  

                                                



                  Judge HANLEY.  



                  An Anchorage police officer observed Kyle Adrian Rogers commit a traffic  



violation,  and  the  officer  conducted  a  traffic  stop.    During  this  stop,  the  officer  

                           



     *   Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  16  of  the  Alaska  



Constitution and Administrative Rule 24(d).  


----------------------- Page 2-----------------------

determined that Rogers' driver's license was suspended and that he was not insured.  A             



second  officer  arrived  on  the  scene  and   concluded  that,  due  to  these  two  offenses,  



Rogers' car would be impounded.  This second officer then searched Rogers' vehicle  



without  a  warrant  and  discovered  cocaine.    Based  on  this  discovery,  Rogers  was  



convicted of fourth-degree misconduct involving a controlled substance.  



                   Superior Court Judge Peter G. Ashman upheld the warrantless search of  

                                                                                                                 



Rogers' vehicle under the theory that it was a valid inventory search.  For the reasons  



explained in this opinion, we conclude that the search of Rogers' car was not a valid  

                                                           



inventory search, and we therefore reverse his conviction.  



          Facts and proceedings  



                   On April 28, 2007, Anchorage Police Officer John Goetz saw a car violate  

                                                                                                       



the Anchorage municipal traffic code by changing lanes while turning from one street  



onto another, so he conducted a traffic stop.  Rogers was driving the car, but he was  

                                                                                                        



unable to produce a driver's license or proof of insurance.  Goetz returned to his patrol  

                                                                                       



car to check the status of Rogers' license and insurance.  



                   In the meantime, a second officer, William Geiger, arrived on the scene.  



He observed Rogers, who was sitting in the driver's seat, moving his hands toward the  



center console and passenger side of the car.  



                   While Geiger was observing Rogers, Officer Goetz confirmed that Rogers'  

                                                                         



driver's license was suspended and that he had no insurance.  Goetz had Rogers get out  

                                                                                          



of his vehicle, and he temporarily detained Rogers in the back of his patrol car.  



                   After  Goetz  escorted  Rogers  to  his  patrol  car,  Geiger  began  searching  



Rogers' vehicle.  Geiger further testified that it was his practice, every time a driver was  

                                                                                             



found  to  be  unlicensed  or  uninsured,  to  impound  the  vehicle.    Geiger  assumed  that  



                                                           - 2 -                                                       2465
  


----------------------- Page 3-----------------------

Rogers'  car  would  be  impounded,  and  he  decided  to  get  a  "jumpstart"  on  what  he  



characterized as an inventory search of the car.  



                    Geiger testified that when he first entered the car, he looked into the "lunge,  

                                                                     



reach, and grasp" area surrounding the driver's seat, but he did not see "anything of  

                                                                                       



interest."  Geiger then focused on the center console and saw that it was partially open.  

               



When Geiger looked inside the console, he discovered cocaine.  



                    At  this  point  Geiger  stopped  searching  the  car  and  secured  it  for  

                                 



impoundment and transport to storage, where it would be held while he applied for a  



search warrant.  



                    In the meantime, Goetz had decided not to take Rogers to jail.  Instead, he  

                                                                                                                 



issued Rogers a citation for driving with a suspended license and then he released him.  

                                                                                           



                    Four  days  after  Rogers'  car  was  impounded,  Goetz  obtained  a  search  



warrant, but no additional drugs were discovered during the ensuing search.  



                    Based on Rogers' driving with a suspended license and his possession of  

                                                



cocaine, the State charged him with driving with a suspended license and misconduct  

                                                                   



involving a controlled substance in the fourth degree.  Rogers filed a motion seeking  

                                                                                                       



suppression of the evidence asserting that the initial warrantless search of his vehicle was  

                                                              



illegal.  Following an evidentiary hearing, the superior court denied this motion.  The  



court ruled that the initial search of Rogers' car was a valid inventory search incident to  

                                                 



the impoundment of the car.  



                    Rogers  pleaded  guilty  to  driving  with  a  suspended  license,  and  a  jury  



subsequently convicted him of the drug offense.  He appeals.  



                                                            - 3 -                                                        2465
  


----------------------- Page 4-----------------------

               The State did not meet its burden to establish that the warrantless search                                     

               of the vehicle clearly fell within the inventory exception to the warrant   

               requirement  



                             It is undisputed that Officer Geiger searched Rogers' car without a search     



warrant.    The State argues that Geiger's warrantless search of the vehicle was valid                                                         



because Anchorage Municipal Code 09.28.026 authorized the impoundment of Rogers'  



vehicle because Rogers was driving without a license and without insurance.  According  

                                                                                                                                                



to the State, the police were thus authorized to inventory the contents of the car before  

                                                   



it was impounded.  

                             In  State  v.  Daniel,1  

                                                                             the  Alaska  Supreme  Court  recognized  inventory  



                                            

searches as a valid exception to the warrant requirement.  Daniel holds that when the  



police impound a vehicle, they may conduct an inventory to catalog all articles of value  

in the vehicle, provided that they do not open sealed or otherwise closed containers.2  



                                                                                                        

                             Vehicle inventory searches serve to protect the owner's property while it  



is  in  police  custody,  to  protect  the  police  against  claims  that  they  lost  or  stole  the  



                                                                                                                                                          3  

property, and to protect the police from potentially dangerous articles.                                                                                                

                                                                                                                                                              But the United  



                                                                                                                                       

States Supreme Court has declared that inventory searches  must be limited to these  



functions:  



                                                                                                                                  

                              [A]n  inventory  search  must  not  be  a  ruse  for  a  general  

                                                                           

                             rummaging in order to discover incriminating evidence.  The  

                             policy or practice governing inventory searches should be  

                             designed  to  produce  an  inventory.    The  individual  police  

                             officer must not be allowed so much latitude that inventory  



        1      State v. Daniel, 589 P.2d 408 (Alaska 1979).  



       2       Id.  at 417.  



       3       D'Antorio  v.  State ,  926  P.2d  1158,  1162  (Alaska  1996)  (citing  South  Dakota  v.  



Opperman, 428 U.S. 364, 370 (1976)).  



                                                                                          - 4 -                                                                                      2465
  


----------------------- Page 5-----------------------

                     searches are turned into "a purposeful and general means of       

                     discovering evidence of crime[.]"4  



                     As Professor LaFave observes in his treatise on search and seizure, courts  

                                                                                                



have taken steps to prevent inventory searches from evolving into searches for evidence  

                                                                                                



by  requiring  that  all  inventories  be  conducted  pursuant  to  "a  regularized  set  of  

                                                                                                                             

procedures which adequately guard against arbitrariness."5  The government must show  



that  the  police  were  acting  pursuant  to  "an  established  reasonable  procedure  for  

              



safeguarding impounded vehicles and their contents," and that the challenged search  

"was essentially in conformance with that procedure."6  

                                                                                                    

                                                                                     Thus, for instance, both state and  



federal  courts  have  invalidated  purported  inventory  searches  in  cases  where  the  



government  failed  to  show  that  "standard  inventory  forms  were  completed  [by  the  

police] and kept for future reference" to memorialize the results of the search.7  



                     In the present case, the superior court acknowledged that the Anchorage  



municipal  traffic  code  authorized  the  police  to  impound  Rogers'  car  after  they  

                                                         



determined that he was driving while his license was suspended.  But the court was  



troubled by several aspects of Geiger's purported inventory search of the vehicle.  



                     The court noted that Geiger's own description of the search tended to show  

                                                                                                 



that  Geiger  was  more  interested  in  finding  evidence  than  he  was  in  cataloguing  



valuables.  The court also noted that the State never produced an inventory report, even  

                                                         



though the court gave the State ten days to locate and produce such a report.  



     4    Florida v. Wells , 495 U.S. 1, 4 (1990) (quoting Colorado v. Bertine                                  , 479 U.S. 367,  



376 (1987) (Blackmun, J., concurring)).  



     5    3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 848  

                                                                             

(5th ed. 2012).  



     6    Id. at 852.  



     7    Id.  at n.3.  



                                                                - 5 -                                                          2465
  


----------------------- Page 6-----------------------

                   Nevertheless,  the  superior  court  concluded  that   there  was  insufficient  



evidence to support a finding that Geiger's search was "purely pretextual," so the court  



upheld the search as a valid inventory search.  



                   This was the wrong legal test.  It was not Rogers' burden to prove that  



Geiger's warrantless search of his vehicle was purely pretextual.  Rather, it was the  



State's burden to establish that Geiger was not searching for evidence, but was instead  

                                                                                  



conducting an inventory search pursuant to established, regularized procedures.  



                   Even  viewing  the  record  in  the  light  most  favorable  to  upholding  the  



superior court's ruling, the State failed to establish that Geiger's initial search of Rogers'  

                                  



vehicle met this test.  



                   As the superior court noted, Geiger himself described his actions as a search  



for "items" of interest.  Geiger initially focused on the "lunge, reach, and grasp" area of  

                                                                                                  



the car -  i.e., places in the vehicle where Rogers might have hidden evidence while  

                                                                          



maintaining his position behind the wheel.  Geiger then turned his attention to the center  

                                                              



console because he observed Rogers placing his hands there.  These actions, and these  

                                                                 



justifications, suggest a search for evidence, not a cataloguing of valuables.  



                   (Geiger might potentially have been searching for weapons, but in that  



event his search was illegal - because, at the time of the search, Officer Goetz had  

                                               



already removed Rogers from the vehicle and had placed him in the back seat of his  



               8 

patrol car. ) 



                   More significant, and more telling, is the fact that Geiger did not follow  



regularized procedures when he conducted this search.  



                   Anchorage  Municipal  Code  24.80.020.F  provides  that  when  the  police  



                                                                                                                 

impound a vehicle and conduct an inventory of its contents, "[the] inventory will be  



     8    See  Arizona v. Gant , 556 U.S. 332 (2009).  



                                                          - 6 -                                                     2465
  


----------------------- Page 7-----------------------

made ... in the presence of a witness."  There was no witness to Geiger's actions.  The  



only other officer on the scene, Officer Goetz, was in his patrol car with Rogers.  



                    Further,  the  Anchorage  Municipal  Code  requires  that  when  an  officer  



conducts an inventory of a vehicle, the officer must create a written list describing the  



results of the inventory.  This inventory list must be signed by both the officer and the  

                                                                                 



witness, and it must be produced in duplicate.  The original must be kept on record at  

police headquarters, and the copy must be placed in the vehicle.9  



                                              

                    Geiger  testified  that  he  did  not  complete  an  inventory  list  in  this  case  



because he terminated his search after finding the cocaine, and because he assumed that  



the inventory list  would  be "taken care of" later, after he secured a search warrant,  

                                        



because whoever served the search warrant would be required to return the warrant to  

              



a judicial officer.  



                    The fact that Geiger stopped searching Rogers' vehicle after he found the  

                                                     



cocaine is a further indication that Geiger did not enter the vehicle to inventory whatever  

                                                                                   



valuables might be inside it, but rather to search for evidence of criminality.  And Geiger  

                                            



was wrong when he asserted that returning the search warrant to a judicial officer would  

                                                                                  



serve the function of the inventory list required under municipal law.  



                    A search warrant does not authorize the police to search for any and all  

                                                                                                             



items of value.  Rather, it authorizes them to search for evidence of a crime.  Thus, when  

                                                                                                                   



an officer returns a warrant to the court with a written inventory of property taken during  

                               



the search, it will not list all items of value found within the described premises.  Rather,  

                                      



the inventory will only list items that the police have reason to believe are evidence of  

                                                          



a crime - because those are the only items that the police are permitted to seize.  



                    As  we  explained  earlier,  it  was  the  State's  burden  to  demonstrate  that  

                                                                



Geiger's warrantless search of Rogers' vehicle was an inventory search conducted under  

                                               



     9    See Anchorage Municipal Code 24.80.020.F.  



                                                              - 7 -                                                          2465
  


----------------------- Page 8-----------------------

established, regularized procedures.  The record in this case, even when viewed in the  



light most favorable to upholding the superior court's ruling, does not establish that  



Geiger  conducted  his  search  of  the  vehicle  in  accordance  with  the  municipality's  

                                                                       



prescribed procedures.  Rather, Geiger repeatedly deviated from those procedures.  The  

                                                                                                                     



State therefore failed to overcome the presumption that the warrantless search of Rogers'  

                                  



car was unconstitutional, and the superior court should have granted Rogers' suppression  



motion.  



                   The cocaine seized from Rogers' vehicle during this unlawful search was  

                                                                                         



the  primary evidence supporting his drug conviction.  Accordingly, we reverse that  

      



conviction.  



                   Given our resolution of this issue, we need not resolve Rogers' claim that  



he  was  subjected  to  an  illegal  traffic  stop,  nor  do  we  need  to  resolve  Rogers'  

                                                                                              



constitutional challenge to the Anchorage vehicle impoundment ordinance.  



          Conclusion  



                   The judgment of the superior court is REVERSED.  



                                                          - 8 -                                                     2465
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC