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Clark v. State (5/21/2010) ap-2264

Clark v. State (5/21/2010) ap-2264

     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

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) Court of Appeals No. A-10170
Appellant, ) Trial Court No. 4FA-07-1241 CR
v. )
) O P I N I O N
Appellee. )
) No. 2264 May 21, 2010
          Appeal from the Superior Court, Fourth  Judi
          cial     District,    Fairbanks,     Douglas
          Blankenship, Judge.

          Appearances:    Margi  A.  Mock,   Assistant
          Public  Defender,  Quinlan  Steiner,  Public
          Defender,   Anchorage,  for  the  Appellant.
          Eric   A.   Ringsmuth,  Assistant   Attorney
          General,  Office of Special Prosecution  and
          Appeals,  Anchorage, and Daniel S. Sullivan,
          Attorney General, Juneau, for the Appellee.

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

          BOLGER, Judge.
          The  police detained Marteshia Clark as a passenger  in
a  reportedly  stolen vehicle.  The police searched the  vehicle,
finding packets of cocaine in a metal cigarette case left on  the
backseat.   Clark challenges the superior courts conclusion  that
the  search  was  justified  as a consent  search  and  a  search
incident  to arrest.  We conclude that the police were authorized
to  open  the  cigarette case based both on  the  vehicle  owners
consent  to  a general search and on the circumstances suggesting
that the case had been left on the backseat of a stolen vehicle.
          On   January  19,  2006,  Susan  Roatch  notified   the
Fairbanks  Police  Department  that  her  car  had  been  stolen.
Talking  with  Officer Avery Thompson, Roatch implicated a  woman
named  Crystal  in  the theft.  While Thompson was  talking  with
Roatch at her home, Roatchs boyfriend, Jack Brown, telephoned  to
report  that  he  had found her vehicle parked  on  a  street  in
downtown  Fairbanks.   The officers then drove  to  the  location
where  Brown  had  seen the car and parked approximately  half  a
block  away  from  the  vehicle to see if  any  of  the  possible
suspects would return to the car.
           About  fifteen  minutes  later,  Marteshia  Clark  and
Crystal  Thomas  approached the stolen car.  Thomas  matched  the
physical  description  given  by Roatch.   Thomas  got  into  the
drivers  seat  and  Clark  sat in the  passenger  seat.   Officer
Thompson  activated  the patrol cars overhead  lights,  drew  his
weapon, and he and Officer Benjamin Holston directed the women to
get out of the car.  The officers handcuffed Clark and Thomas and
searched the women for weapons.  Officer Thompson put Thomas into
the  back  of  the  patrol car, and when  Officer  Bruce  Barnett
arrived  on the scene, the officers placed Clark in the  back  of
the second patrol car.
          After  advising  Thomas of her Miranda rights,  Officer
Thompson  asked  her about her relationship with Roatch.   Thomas
said  that she had known Roatch for three months, and that Roatch
had given her permission to use the car.
          Officer  Thompson  then  spoke  with  Roatch,  who  had
arrived at the scene,  and she denied giving Thomas permission to
use the vehicle.  Roatch then gave Officer Thompson permission to
search  her  vehicle  for  illegal  drugs  or  weapons.   Officer
Thompson  found  clothing, fast food containers,  a  cell  phone,
trash,  and  a  metal cigarette case which was decorated  with  a
design  of marijuana leaves and a rasta character. Roatch  denied
ownership  of  a majority of the items in the car, including  the
cigarette case.
          The  cigarette case was sitting on the backseat of  the
car.   Officer  Thompson  opened the case  and  discovered  three
bindles  of  cocaine inside.  Officer Thompson then asked  Thomas
about  the case, and she denied that it belonged to her.  Officer
Thompson  did not ask Clark if she owned the cigarette case,  and
Clark remained handcuffed in the backseat of the patrol car while
Thompson searched the vehicle.
          The  officers  transported  Thomas  and  Clark  to  the
Fairbanks  Police  Station and secured them in  separate  holding
cells.    Officer   Thompson  and  a  drug  enforcement   officer
interviewed Clark at the jail.  Clark said that she did not  know
that  the  vehicle was stolen, and that Thomas was giving  her  a
ride  down  the  street.   Clark  admitted  that  she  owned  the
cigarette  case and explained that she was planning to trade  the
cocaine in the case for some marijuana.
          A  grand jury indicted Clark on one count of misconduct
involving  a  controlled substance in the third  degree.1   Clark
moved  to  suppress the evidence of the cocaine seized  from  the
cigarette  case  and  the statements she  made  related  to  that
seizure, arguing that the search did not fall within an exception
to the warrant requirement.
          After  an  evidentiary  hearing, Superior  Court  Judge
Douglas  Blankenship found that Roatch gave Officer Thompson  her
general, unlimited consent to search the car and that during  the
search, Officer Thompson found the cigarette case.  He ruled that
Roatchs  denial that she owned the cigarette case did  not  limit
that  consent.  Judge Blankenship also found that Clark  did  not
have an expectation of privacy in the cigarette case since it was
in a stolen car from which she had just been removed.
          Judge Blankenship also found that Officer Thompson  had
probable cause to arrest Clark for criminal mischief in the fifth
degree  for  joyriding.   Judge Blankenship  concluded  that  the
search  of  the  cigarette case was also justified  as  a  search
incident  to  Clarks  arrest for criminal  mischief.   The  court
denied  Clarks  motion to suppress and a jury  convicted  her  of
misconduct   involving  a  controlled  substance.   This   appeal

          The  police may conduct a warrantless search  based  on
the  voluntary consent of a person who has valid control  of  the
place  to  be  searched.2  Ordinarily, a general consent  by  the
property  owner will allow the police to open closed but unlocked
containers  that could contain the object of the search.3   Thus,
an  owners  general consent to the search of a vehicle for  drugs
includes consent to open closed containers found in the vehicle.4
          We  applied these principles to a similar situation  in
Ingram  v.  State.5  In that case, the defendant left his  jacket
and  his  wallet on the floor of a neighbors apartment, where  he
was  arrested for his involvement in an LSD transaction.6   After
Ingrams  arrest, the neighbor allowed the police  to  search  the
apartment for LSD and marked money.7  We held that the search  of
Ingrams  jacket and wallet were within the scope of the neighbors
consent,  even  though the neighbor told the  police  that  those
items  did  not belong to him.8  We held that Ingram assumed  the
risk  that  the neighbor might consent to a search of the  jacket
and wallet by leaving them behind when he was arrested.9
          In  Ingram,  our conclusion that the neighbor  had  the
authority to agree to a search of Ingrams property was  based  on
the  diminished expectation of privacy held by someone who leaves
property  in  a neighbors apartment.  In the present case,  Clark
had a diminished expectation of privacy in her cigarette case for
similar reasons:  She apparently left her cigarette case  in  the
backseat of a stolen vehicle.
          The  prevailing view of cases from other  jurisdictions
is  that  a passenger has no expectation of privacy in containers
left in a stolen vehicle.10  In response, Clark argues that there
          was no evidence establishing that she knew that Roatchs vehicle
was stolen.  But that is not the critical question.  The critical
question is what information was available to Officer Thompson at
the time of the search.
          Judge  Blankenship  found  that  Officer  Thompson  had
probable  cause to believe that the vehicle was stolen  and  that
Clark  was  guilty of joyriding.  These findings were  adequately
supported  by  Officer Thompsons testimony about  Roatchs  report
that  Thomas  had stolen her vehicle.  Based on this information,
Officer Thompson could have reasonably concluded that Clark had a
reduced expectation of privacy in the containers that were  found
in the stolen vehicle.
          Moreover,   Clark  apparently  chose   to   leave   the
cigarette  case  in the backseat of the vehicle  rather  than  to
carry  it  on her person.  Passengers have a reduced interest  in
containers  that  they leave in another persons vehicle.11   This
interest differs from passengers interest in property they  carry
on  their  person.12   At the time of the search  Clark  had  not
admitted  that  the  cigarette case  belonged  to  her.   Officer
Thompson  could  reasonably conclude  that  Clark  had  a  lesser
interest  in  the  case because it had been left  behind  on  the
          In  summary, Officer Thompson could reasonably conclude
that  Clark had a reduced expectation of privacy in the cigarette
case  left  on  the backseat.  The officer could also  reasonably
conclude  that Clark had a reduced privacy interest in the  case,
which  had  been  left  in  a stolen vehicle  where  she  had  no
permission to be.  Based on these conclusions, the officer  could
reasonably conclude that the owners general consent to the search
of her vehicle included the authority to open the cigarette case.
          Since  the  search was justified by the vehicle  owners
consent,  we  are  not  required  to  review  Judge  Blankenships
conclusion  that  Clark  had no expectation  of  privacy  in  the
cigarette case,13 or his conclusion that the search was  a  valid
search  incident to Clarks arrest.14  During her police interview
after  the  search, Clark admitted that she owned  the  cigarette
case and explained that she was planning to trade the cocaine  in
the  case for some marijuana.  But the circumstances known to the
police   at  the  time  of  the  search  were  similar   to   the
circumstances  that  justified the  search  in  Ingram.   Officer
Thompson  could  therefore reasonably conclude that  the  vehicle
owner  had the authority to consent to a search of property  that
had been left in the backseat of a stolen vehicle.

          We therefore AFFIRM the superior courts judgment.

     1 AS 11.71.030(a)(1).

     2 Hilbish v. State, 891 P.2d 841, 848 (Alaska App. 1995).

     3 Ingram v. State, 703 P.2d 415, 424 (Alaska App. 1985).

     4  Florida  v. Jimeno, 500 U.S. 248, 251, 111 S.  Ct.  1801,
1804, 114 L. Ed. 2d 297 (1991).

     5 703 P.2d 415.

     6 Id. at 419-20.

     7 Id. at 420.

     8 Id. at 424.

     9  Id. at 425 n.6 (citing United States v. Matlock, 415 U.S.
164, 171, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242 (1974)).

     10    See 6 Wayne R. LaFave, Search & Seizure: A Treatise on
the  Fourth Amendment  11.3(e), at 206-07 (4th ed. 2004);  Nelson
v.  State,  405  So.2d 392, 398 (Ala. Crim. App. 1980),  revd  on
other  grounds, 405 So.2d 401 (Ala. 1981) (holding that passenger
in  stolen  vehicle  lacked  standing  to  object  to  search  of
vehicle);  see also State v. Thompson, 490 S.W.2d 50, 51-52  (Mo.
1973); State v. May, 613 S.W. 2d 877, 881 (Mo. App. 1981); Harper
v.  State, 440 P.2d 893, 895-98 (Nev. 1968); State v. Scott,  860
P.2d  1005, 1007-08 (Utah  App. 1993); State v. Bruski, 727  N.W.
2d  503, 511-13 (Wis. 2007) (holding that defendant did not  have
reasonable  expectation  of privacy in makeup  case  he  left  in
vehicle because he did not have permission to be in the vehicle).

     11    See Wyoming v. Houghton, 526 U.S. 295, 303, 119 S. Ct.
1297,  1302, 143 L. Ed. 2d 408 (1999) (allowing police to  search
passengers purse during warrantless search of  vehicle); Marshall
v.  State, 198 P.3d 567, 573-74 (Alaska App. 2008) (holding  that
passenger lacked standing to object to police officers seizure of
prescription bag he left on dashboard of another persons truck).

     12    See United States v. Di Re, 332 U.S. 581, 587,  68  S.
Ct.  222,  225,  92  L. Ed. 210 (1948) (finding that  warrantless
search  of  passengers personal clothing not justified merely  as
search incident to search of the vehicle).

     13   Compare People v. Dalton, 598 P.2d 467, 472 (Cal. 1979)
(holding that defendant had standing to challenge search of boxes
left in stolen vehicle).

     14   See Arizona v. Gant, 556 U.S. ___, 129 S. Ct. 1710, 173
L.  Ed.  2d  485 (2009) (defining scope of a vehicle  search  for
evidence  incident to arrest of the driver); Crawford  v.  State,
138  P.3d  254  (Alaska  2006) (upholding search  of  the  center
console  of  the defendants vehicle after his arrest);  State  v.
Joubert, 20 P.3d 1115 (Alaska 2001) (upholding pat-down search of
defendant for evidence of vehicle theft).

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