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Cardenas v. State (11/9/2018) ap-2621

Cardenas v. State (11/9/2018) ap-2621

                                                     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
  

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                 IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



JESUS ALBERTO CARDENAS,  

                                                                    Court of Appeals No. A-12470  

                                    Appellant,                    Trial Court No. 3AN-14-7883 CR  



                           v.  

                                                                               O P I N I O N  

STATE OF ALASKA,  



                                    Appellee.                       No. 2621 - November 9, 2018  



                  Appeal  f                 

                              rom  the   Superior  Court,  Third  Judicial  District,  

                  Anchorage, Michael R. Spaan, Judge.  



                  Appearances:         Jane  B.  Martinez,  Law  Office  of  Jane  B.  

                                                                                         

                  Martinez,  LLC,  under  contact  with  the  Office  of  Public  

                                                                                           

                  Advocacy, Anchorage, for the Appellant.  Timothy W. Terrell,  

                                                                                      

                  Assistant   Attorney  General,   Office   of   Criminal   Appeals,  

                                                                          

                  Anchorage, and Jahna Lindemuth, AttorneyGeneral, Juneau, for  

                                                                                                 

                  the Appellee.  



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

                                                       

                  Superior Court Judge.*  

                                                 



                  Judge ALLARD.  



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



Constitution and Administrative Rule 24(d).  


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

                     Jesus Alberto Cardenas was the driver of a car that was stopped for reckless  

                                                                                                                          



driving.  During the traffic stop, the officer asked Cardenas whether he had any guns in  

                                                                                                                                   



his vehicle. Cardenas replied in the affirmative, and moved his body and hands towards  

                                                                                                                          



the back seat, where a black fabric rifle case was sitting.  The rifle case was fully zipped  

                                                                                                                            



up and lying on the back seat behind the passenger seat, outside Cardenas's immediate  

                                                                                                                      



reach.  



                     The officer ordered Cardenas to keep both of his hands on the steering  

                                                                                                                         



wheel.  Cardenas complied with this request, and he remained polite and cooperative  

                                                                                                                    



throughout the traffic stop.  The officer decided to secure the rifle case while he ran  

                                                                                                                                 



Cardenas's registration and identification through the system.  After telling Cardenas  

                                                                                                                       



what he planned to do, the officer took the black soft-sided rifle case from the back seat  

                                                                                                                                



and carried it to his patrol car.  

                                                 



                     After  getting  into  his  patrol  car,  the  officer  opened  the  rifle  case  and  

                                                                                                                                



conducted a thorough search of its contents, opening the smaller compartment of the rifle  

                                                                                                                                



case first.  In this smaller compartment, the officer found an Airsoft pellet gun, a wad of  

                                                                                                                                   



cash, a box of plastic baggies, and several plastic bags with a white powdery substance  

                                                                                                                       



that was later determined to be cocaine.  The officer then opened the larger part of the  

                                                                                                                                 



rifle case and found an unloaded assault rifle and a magazine of ammunition.  

                                                                                                    



                     After  discovering  the  drugs  and  weapons  in  the  rifle  case,  the  officer  

                                                                                                                           



radioed  for  backup.              After  the  backup  arrived,  the  officers  arrested  Cardenas.                               A  

                                                                                                                                   



subsequent search of Cardenas's vehiclepursuant to a search warrant revealed additional  

                                                                                                                       



drugs - methamphetamine and cocaine - in the car.  

                                                                              



                     Cardenas later moved to suppress all of this evidence arguing that the  

                                                                                                                                 



seizure and search of his rifle case was unlawful.  The superior court denied Cardenas's  

                                                                                                                     



suppression motion, concluding that both the seizure and the search of the rifle case were  

                                                                                                                               



justified under the "officer safety exception to the warrant requirement."  

                                                                                           



                                                               - 2 -                                                         2621
  


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

                            Following the denial of his motion to suppress, Cardenas waived his right                                                                        



to a jury trial and agreed to a bench trial on stipulated facts.                                                             At trial, the judge acquitted          



Cardenas of third-degree misconduct involving a controlled substance (possession of                                                                                               



methamphetamine   with   intent   to   deliver),   but   convicted   him of                                                                  the   lesser-included  



offense of fourth-degree misconduct involving a controlled substance (possession of                                                                                               



                                          1  

methamphetamine).                                                                                                                                                   

                                               The judge also convicted Cardenas of second-degree weapons  



                                                                                                                                                               2  

                                                                                                                                                                           

misconduct (for possessing a gun during the commission of a drug offense)                                                                                         and third- 



                                                                                                                                                                           

degree misconduct involving a controlled substance (possession of cocaine with intent  



                       3  

      

to deliver). 



                                                                                                                                                                        

                            Cardenas now appeals, arguing that the superior court erred when it denied  



                                                                                                                                                                                 

his motion to suppress.  For the reasons explained here, we agree with Cardenas that the  



                                                                                                                                             

search of his rifle case was unlawful, and we therefore reverse his convictions.  



                                                                                                                                                    

               Why we conclude that the officer's search of the rifle case was unlawful  



                                                                                                                                                            4  

                                                                                                                                                                        

                            Whether a search is lawful is a mixed question of fact and law.                                                                     On appeal,  



                                                                                                                                                                        

we review the trial court's factual findings for clear error, but we independently review  



                                                                                                                                                   5  

                                                                                                                                    

whether those facts provided a justification for the challenged search. 



       1      Former  AS  11.71.040(a)(3)(A)(ii)  (pre-2016  version).    The  current  judgment  



incorrectly   states   that  Cardenas  was  convicted  of   third-degree  misconduct  involving  a  

controlled substance.  



       2      AS 11.61.195(a)(1).  



       3      Former AS 11.71.030(a)(1) (pre-2016 version).  



       4       Wilburn v. State, 816 P.2d 907, 911 (Alaska App. 1991).  



       5      Id.   



                                                                                      - 3 -                                                                                 2621
  


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

                                    Here, the facts are largely undisputed. The                                                                        parties agree that the traffic stop  



was lawful and that the stop was not yet complete when the search of the rifle case                                                                                                                                             



occurred.   The parties also agree that, with the exception of the initial body movement                                                                                                        



towards the rifle case that alarmed the officer, Cardenas was fully cooperative during the                                                                                                                                          



traffic stop.   



                                     Thus, the primary question for us to decide in this appeal is whether these                                                                                                              



facts provided a reasonable basis for the officer's seizure and subsequent search of the                                                                                                                                            



rifle case.   



                                     In  Michigan v. Long                                     , the United States Supreme Court held that police                                                



officers who are performing a traffic stop may conduct a limited search of the vehicle for                                                                                                                                           



weapons if the circumstances give the officers reasonable suspicion that the driver or                                                                                                                                                



another occupant of the vehicle "is dangerous and ... may gain immediate control of                                                                                                                                                   



                             6  

weapons."                                                                                        

                                  As the Supreme Court explained,  



                                                                                                                                                                                             

                                     [w]hen   [an]  officer   "has   a   reasonable   belief   that   the  

                                                                                                                                                                                                   

                                     individual whose suspicious behavior he is investigating at  

                                                                                                                                                                                                   

                                     close range is armed and presently dangerous to the officer or  

                                                                                                                                                                                                   

                                    to others, it [is] unreasonable to deny the officer the power to  

                                                                                                                                             

                                    take necessary measures to determine whether the person is  

                                                                                                                                                                                        

                                     in fact carrying a weapon and[, if so,] to neutralize the threat  



                                                                                       7  

                                                                     

                                     of physical harm." 



                                                                                                                                                                                                                              

                                     TheStatecontends that thisexceptionapplies herebecausetheofficer knew  



                                                                                                                                                                                                                  

that Cardenas had access to a gun and the officer had reason to believe that Cardenas  



                                                                                                                                                                                                                                              

might use this gun against the officer based on Cardenas's initial movement, which  



                                                                                                                                                                                                              

"concerned" the officer.                                                  In  its briefing  on  appeal, the  State  focuses its arguments  



                                                                                                                                                                                                                                    

primarily on the officer's initial seizure of the rifle case. According to the State, once the  



         6        Michigan v. Long , 463 U.S. 1032, 1049 (1983).  



         7        Id. (quoting Terry v. Ohio, 392 U.S. 1, 24 (1968)).  



                                                                                                                - 4 -                                                                                                         2621
  


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

 officer became aware of the rifle, the officer was justified in removing the rifle case from                                                                                                                                                                                                                   



 Cardenas's reach to ensure his own personal safety while he completed the remainder                                                                                                                                                                                                        



 of the traffic stop.                                                 But even assuming that the officer was entitled to take reasonable                                                                                                                                                 



 steps to ensure that the rifle was not within Cardenas's immediate reach and that these                                                                                                                                                                                                                       



 reasonable steps could include seizing the case, this could still be accomplished without                                                                                                                                                                                                           



 opening the closed rifle case.                                                           



                                                  The State argues that, once the case was lawfully seized, the search of the                                                                                                                                                                                         



 rifle case was justified under the "single-purpose" container exception articulated in                                                                                                                                                                                        



Arkansas v. Sanders.                                                             Footnote 13 of                                            Arkansas v. Sanders                                                            states:  



                                                  Not all containers and packages found by police during the                                                                                                                                                        

                                                  course   of   a   search   will  deserve   the   full   protection   of   the  

                                                  Fourth Amendment. Thus, some containers (for exampleakit                                                                                                                                                          

                                                  of burglar tools or a gun case) by their very nature cannot                                                                                                                                          

                                                  support a reasonable expectation of privacy because their                                                                                                                                                   

                                                  contents   can   be   inferred   from   their   outward   appearance.  

                                                   Similarly, in some cases the contents of a package will be                                                                                                                                        

                                                  open   to   "plain   view,"   thereby   obviating   the   need   for   a  

                                                  warrant.8  



                                                                                                                                                                                                                                                                                                               

 The State interprets this language to mean that an officer is always entitled to open a rifle  



                                                                                                                         

 case if it is identifiable as a rifle case.  



                                                                                                                                                                                                                                                                                                                 

                                                  This is amisinterpretationofthe"single-purpose"container exception. Like  



                                                                                                                                                                                                                                                                                              

 the "plain view" doctrine on which it is based, the "single-purpose" container exception  



                                                                                                                                                                                                                                                                                 

 applies  when  the  incriminating  nature  of  the  container's  contents  is  immediately  



             8           Arkansas v. Sanders , 442 U.S. 753, 764 n.13 (1979), abrogated on other grounds by  



 California v. Acevedo, 500 U.S. 565, 579-80 (1991); see also United States v. Meada, 408  

                                                                                                                                                                                                                

 F.3d 14, 23 (1st Cir. 2005) ("Although a person generally has an expectation of privacy in  

                                                                                                                                                                                                                                

 items he places in a closed container, some containers so betray their contents as to abrogate  

 any such expectation.").  



                                                                                                                                                         -  5 -                                                                                                                                                2621
  


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

                9  

apparent.   An officer is entitled to seize items that are in plain view if their contraband                                    

                                                                             10   But a person's expectations of privacy  

nature or evidentiary significance is apparent.                                                                                       



in their personal belongings does not automatically disappear simplybecausetheinternal  

                                                                                                                                      



contents of a closed container are apparent from its outside appearance.   Thus, for  

                                                                                                                                             



example, an officer is not entitled to open and search a person's computer case simply  

                                                                                           



because the case is immediately identifiable as containing a computer, if the person's  

                                                                                                                                    



possession of the computer is not itself incriminating.  

                                                                    



                      Here, there was nothing obviously unlawful about Cardenas's possession  

                                                                                                                                

of a rifle.11  

                                                                                                                                              

                   Unlike other situations where such searches have been upheld, there was no  



                                                                                                              12  

                                                                                                                                            

indication that Cardenas was prohibited from carrying a firearm.                                                  Nor was there any  



      9    See 3 Wayne R. LaFave, Search and Seizure  5.5(e), at 340-41 (5th ed. 2012) ("[T]he  



                                                                                                                       

rule appears to require (i) a high degree of certainty about the contents of the container, (ii)  

                                                                                                           

ascertained from the nature of the container itself."); Ambrose v. State , 221 P.3d 364, 367  

                                                                                                     

(Alaska App. 2009) (officer was justified in opening bindle because it was immediately  

                                                                                                        

recognizable as a single-purpose package used to carry illegal drugs); see also Reeves v.  

           

State, 599 P.2d 727, 738-39 (Alaska 1979); Howard v. State, 209 P.3d 1044, 1050 (Alaska  

App. 2009); McGuire v. State, 70 P.3d 1114, 1116-17 (Alaska App. 2003).  



      10   See Daygee v. State, 514 P.2d 1159, 1162 (Alaska 1973); Reeves, 599 P.2d at 738; 2  



Wayne R. LaFave et al., Criminal Procedure  3.7(f), at 297 (3d ed. 2007) ("An object may  

                                                                             

not be seized from a car merely because the police plain view of it was lawfully acquired;  

                                                                                                                                   

there must be probable cause that the object is a fruit, instrumentality or evidence of crime.  

                                                                                                                                         

And under the 'immediatelyapparent' requirement ... this probable cause must be determined  

                                                              

without examination of the object other than is justified by the purpose underlying police  

                                                                                                  

entry of the vehicle.").  



      11   Alaska law places few restrictions on firearm ownership, and does not require permits  

                                                                                    

for possession of most guns. See AS 11.61.190-.220. State law allows guns to be carried and  

                                                                                      

stored in vehicles. AS 18.65.800.  



      12   Compare United States v. Meada, 408 F.3d 14, 23-24 (1st Cir. 2005) ("What justified  

                                                                                                                         

the search of the gun case was that it reasonably appeared to contain a gun and that, as a  

                                                                                                                                    

                                                                                                                            (continued...)  



                                                                     -  6 -                                                              2621
  


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

reason to suspect that the firearm had been stolen or that Cardenas's possession of the                                                       

                                                        13   Thus, contrary to the State's assertion, the single- 

firearm was otherwise unlawful.                                                                                                        



purpose container doctrine does not justify the search that occurred here.  

                                                                                                                    



                       The  search  was  also  not  justified  by  officer  safety  concerns.                                          At  the  

                                                                                                                                              



evidentiary hearing, the officer testified that he opened the rifle bag for three reasons:  

                                                                                                                                                     



(1) he wanted to be sure the gun Cardenas told him he had in the car was in fact in the  

                                                                                                                                              



rifle case; (2) he wanted to unload and secure the rifle to ensure that he was not shot by  

                                                                                                                                               



Cardenas; and (3) he wanted to determine what kind of gun was in the case.  As the  

                                                                                                                                              



superior court recognized, the third reason was obviously faulty. The officer's curiosity  

                                                                                                                                     



as to what type of gun Cardenas owned was irrelevant to whatever safety concerns  

                                                                                                                                    



existed. But the other two reasons were also faulty. Cardenas told the officer that he had  

                                                                                                                                              



a gun in the back seat, and he gestured towards the rifle case.  It was not necessary for  

                                                                                                                                               



the officer to open the rifle case to confirm that the gun existed.  There was also no need  

                                                                                                                                            



to open the rifle case to ensure that the rifle was no longer within Cardenas's reach. The  

                                                                                                                                             

officer had already isolated Cardenas from the rifle case by removing it from the car.14  

                                                                                                                                           



      12   (...continued)  



convicted  felon,  Meada  was  prohibited  from  possessing  one.    Given  that  reasonable  

appearance, the fact that, upon opening and careful inspection, the gun case might turn out  

to contain something other than a gun was irrelevant."), with United States v. Villarreal, 963  

                                                                                                  

F.2d 770, 776 (5th Cir. 1992) (holding that drums labeled as phosphoric acid but actually  

                                                                                    

filled with marijuana could not be searched without a warrant under the single-purpose  

container exception because phosphoric acid is not associated with criminal activity).  



      13   See AS 11.61.220(a) (defining fifth-degree weapons misconduct as including, inter  



alia, possession of a loaded firearm in a bar; possession of a firearm by an unemancipated  

                                                                                                                      

minor who has not obtained consent by a parent or guardian; and knowing possession of a  

                                                                                                                                                  

firearm on the grounds of a child care facility, in a courtroom, or in a domestic violence  

                                                                                                                                      

shelter).  



      14   See Arizona v. Gant, 556 U.S. 332, 351 (2009) (tying the justification for vehicle  

                                                                                                                                        

                                                                                                                             (continued...)  



                                                                     -  7 -                                                               2621
  


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

                                                In the proceedings below, the trial court speculated that, as a matter of gun                                                                                                                                                                               



safety, the officer may have wanted to check to make sure the rifle was unloaded before                                                                                                                                                                                                           



he moved it.                                    But the officer apparently did not have these safety concerns when he                                                                                                                                                                                          



transported the closed rifle case to his patrol car before he opened it.  Moreover, these                                                                                                                            



gun safety concerns (to the extent they existed) could have been addressed by securing                                                                                                                                                                                                    



the rifle case in the trunk of the car or by requesting Cardenas to step out of the car. This                                                                                                                                                                                                           



was not a situation where the officer had to secure a gun that had been discarded or that                                                                                                                                                                                                                  

otherwise posed a threat to public safety.                                                                                                           15  



                                                                                                                                                                                                                                                                                                      

                                                In its brief, the State highlights the inherent dangerousness of traffic stops  



                                                                                                                                                                                                                                                                         

and the fact that this officer was working alone without any back up.  We acknowledge  



                                                                                                                                                                                                                                                                                          

this inherent danger and the increased concern for officer safety once the officer becomes  



                                                                                                                                                                                                                                                                                                                

aware that the driver (or an occupant) of the vehicle may have access to a firearm or  



             14         (...continued)  



searches to the occupant's ability to reach evidence contained in the vehicle).  



             15         See Cady v. Dombrowski, 413 U.S. 433, 447-48 (1973) (finding   police officer's  



opening of car's trunk without warrant did not violate Fourth Amendment because officer                     

reasonably believed trunk contained gun, trunk was vulnerable to intrusion by vandals, and                                                                                                                                                                                    

public might be endangered if intruder removed gun);  United States v. Webb, 83 F.3d 913,  

917 (7th Cir. 1996) (deciding that exigent circumstances allowed officer to retrieve shotgun  

from car trunk with keys still in the lock because gun could have been easily retrieved and                                                                                                                                                                                 

                                                                                                                                                                                                                                                                                                                 

officer feared gun's safety mechanisms might not have been activated, allowing  gun to  

accidentally discharge);                                                                United  States  v.  Ware,  914  F.2d  997,  1000-01  (7th  Cir.  1990)  

(exigent circumstances permitted officer to search car for gun because it was either in car or  

had been discarded by defendant, and as such, might fall into untrained or malicious hands);   

                                                                                                                                                                                                                                                                                                   

 United States v. Feldman, 788 F.2d 544, 553 (9th Cir. 1986) (finding that inventory search  

                                                                                             

of car done in violation of police policies was lawful because officer reasonably suspected  

                            contained gun and search was reasonable to ensure                                                                                                                                          the immediate protection of  

that car  

the public's safety).  



                                                                                                                                                    -  8 -                                                                                                                                            2621
  


----------------------- Page 9-----------------------

                                                 16  

other deadly weapon.                                  But as Cardenas points out, it is not unusual for Alaskans to                                                    



carry guns, and it is not unusual for a gun to be in a vehicle. Here, the record shows that                                                                                                



Cardenas's   actions   were   consistent   with   the   actions   of   a   responsible   gun   owner.   



Cardenas secured his gun inside a closed rifle case and he placed the rifle case on the                                                                                                     



back seat of his car, outside his immediate reach.                                                               Cardenas notified the officer of the                                       



existence of the gun at the beginning of the traffic stop, and he cooperated with all of the                                                                                                



                                         17  

officer's requests.                                                                                                                                                                         

                                               It is undisputed that, other than his initial movement towards the  



                                                                                                                                                                                            

rifle case, Cardenas gave the officer no reason for concern. Furthermore, the officer did  



                                                                                                                                                                               

not have probable cause to believe that the gun case contained contraband or evidence  



                         18  

          

of a crime. 



                                                                                                                                                              

                              Given these circumstances, we conclude that the officer had no authority  



                                                                                                                                                                                                     

to open and search the rifle case.  Even assuming that the officer's seizure of the case  



                                                                                                                                                                              

was justified, the subsequent opening and search of the closed rifle case was not.  



               Conclusion  



                                                                                                                    

                              The judgment of the superior court is REVERSED.  



        16     Cf. AS 11.61.220(a)(1)(A)(i) (requiring a person who is carrying a firearm concealed   



on their person to immediately inform a peace officer of the firearm when contacted by the                                                                                                   

peace officer for an official purpose).  



        17     Cf. AS 11.61.220(a)(1)(A)(ii) (requiring a person who is carrying a firearm concealed  

                                                                                                                                                                              

on their person to allow a peace officer to secure the weapon for the duration of their contact  

                                                                                                                                                                         

with the peace officer).  



        18     See California v. Acevedo, 550 U.S. 565, 580 (1991).  



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