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Deemer v. State (12/23/2010) ap-2289

Deemer v. State (12/23/2010) ap-2289

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                                                             Court of Appeals No. A-9775 
                                Appellant,                 Trial Court No. 3PA-05-3616 Cr 

                                                                    O   P  I  N  I  O  N 

                                Appellee.                 No. 2289    -    December 23, 2010 

                Appeal from the Superior Court, Third Judicial District, Palmer, 
                Eric Smith, Judge. 

                Appearances:   Dan S. Bair, Assistant Public Advocate, Appeals 
                &    Statewide    Defense    Section,   and   Rachel    Levitt,  Public 
                Advocate, Anchorage, for the Appellant.  Terisia K. Chleborad, 
                Assistant Attorney General, Office of Special Prosecutions and 
                Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, 
                Juneau, for the Appellee. 

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

                MANNHEIMER, Judge. 

                Billie Rae Deemer was stopped by a state trooper for a traffic violation 

(failing to signal a turn).    When the trooper asked Deemer to identify herself, she lied 

about her identity.     A short time later, another trooper arrived on the scene who was 

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

acquainted with Deemer. The troopers then ran Deemer's name through their computer; 

this check revealed that there was a warrant for Deemer's arrest for failing to appear in 

a criminal case.     Deemer was arrested, and the troopers searched her car.               This search 

revealed a handgun and cocaine. 

                Based on these events, Deemer was convicted of fourth-degree misconduct 

involving     a  controlled    substance    (possession     of  cocaine),   second-degree      weapons 

misconduct   (possession   of   a   firearm   in   furtherance   of   a   drug   felony),   third-degree 

weapons misconduct (possession of a concealable firearm by a felon), and giving false 

information to a police officer. 

                On appeal, Deemer asserts that the search of her car was unlawful. 

                In   our   previous    decision   in  this  case,  Deemer     v.  State,   Alaska   App. 

Memorandum Opinion No. 5467 (April 8, 2009), 2009 WL 962822, we upheld the 

search of the car based on Alaska precedent governing   searches   of a motor vehicle 

pursuant to an arrest.      Under that precedent, the police were authorized to conduct a 

search for both weapons and evidence within the area of the passenger compartment that 

was within Deemer's reach at the time of the stop - even though Deemer had already 
been secured in a trooper patrol car before the search began. 1 

                But two weeks after we issued this decision, the United States Supreme 

Court issued its decision in Arizona v. Gant, __ U.S. __, 129 S.Ct. 1710, 173 L.Ed.2d 

485 (2009).  In Gant, the Supreme Court altered federal search and seizure law relating 

to the search of a motor vehicle pursuant to an arrest:   the Court held that the police can 

search   the   passenger   compartment   of   the   vehicle   for   weapons   only   if   the   search   is 

conducted at a time "when the arrestee is unsecured and within reaching distance of the 

    1   Wilburn v. State, 816 P.2d 907, 912-13 (Alaska App. 1991); Dunn v. State, 653 P.2d 

1071, 1079-1080 (Alaska App. 1982). 

                                                  - 2 -                                              2289 

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

passenger compartment".          129 S.Ct. at 1719.    In other words, a warrantless search of a 

vehicle for weapons is permissible only if there is a realistic possibility that the arrestee 

might grab a weapon from the vehicle. 

                The Supreme Court did not place this same "proximity of the arrestee" 

limitation on searches for evidence.          Rather, the Court stated that "[the] circumstances 

unique to the vehicle context justify a [warrantless] search [of a vehicle] incident to a 

lawful arrest when it is reasonable to believe [that] evidence relevant to the crime [on 

which the] arrest [is based] might be found in the vehicle."             Ibid.  However, the Court 

added that most traffic violations would not meet this standard.  Ibid. 

                Based on the United States Supreme Court's decision in Gant, the Alaska 
Supreme Court directed us to reconsider Deemer's case. 2 We asked the parties to submit 

supplemental briefs discussing Gant and its application to the facts of Deemer's case. 

We have considered those briefs, and - for the reasons explained here - we again 

conclude that the search of Deemer's vehicle was lawful. 

                Because Deemer was sitting handcuffed in the back of a trooper patrol car 

at the time of the search, it is obvious that the search of Deemer's vehicle can not be 

justified as a search for weapons under the Fourth Amendment (as construed in  Gant). 

This leaves the question of whether the search of Deemer's vehicle can be justified as a 

search for evidence. 

                However, before we reach that question, we must address a preliminary 

issue raised by the State in its supplemental brief:   Is Deemer entitled to suppression of 

the evidence against her if we conclude that the search of her vehicle violated the Fourth 

Amendment as construed by the Supreme Court in Gant? 

    2   See "Order" issued on August 14, 2009 in Deemer v. State, Supreme Court File No. 

S-13505.     In   this   order,   the   supreme  court   granted   Deemer's   petition  for   hearing   and 
remanded Deemer's case to this Court for reconsideration in light of Arizona v. Gant . 

                                                 - 3 -                                              2289 

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

                 In  Griffith   v.   Kentucky,   479   U.S.   314,   107   S.Ct.   708,   93   L.Ed.2d   649 

(1987), the Supreme Court held that constitutional rulings are to be applied retroactively 

to all defendants, both federal and state, whose convictions are not yet final (i.e., whose 

cases are still pending on direct review or certiorari review) when the new constitutional 

rule is announced.      479 U.S. at 323-24, 328; 107 S.Ct. at 713-14, 716. 

                 The State concedes that Deemer's conviction was not yet final when the 

United   States   Supreme   Court   issued   its   decision   in  Gant.     (This   Court   had   decided 

Deemer's appeal, but Deemer was still entitled to petition the Alaska Supreme Court to 

review this Court's decision.)   However, the State argues that even though Gant applies 

retroactively to Deemer's case, Deemer would not be entitled to suppression of any 

evidence even if we concluded that the search of her vehicle violated Gant. 

                 The State bases its argument on the decision of the Tenth Circuit in United 

States   v.   McCane,   573   F.3d   1037,   1045   (10th   Cir.   2009),   and   the   decision   of   the 

Eleventh Circuit in United States v. Davis, 598 F.3d 1259, 1267-68 (11th Cir. 2010).  In 

McCane and Davis, the courts held that the exclusionary rule does not apply to searches 

that violate  Gant if (1) the search was conducted before  Gant was issued and (2) the 

police acted in good-faith reliance on pre-Gant case law. 

                 The    Ninth    Circuit,    on   the  other    hand,   takes   the   position    that   the 

exclusionary rule does apply even when the police relied in good faith on pre-Gant case 

law.    United States v. Gonzalez, 578 F.3d 1130, 1132-33 (9th Cir. 2009), rehearing 

denied, 598 F.3d 1095 (9th Cir. 2010). 

                 The Gonzalez court noted that the United States Supreme Court has never 

applied the good-faith exception to a situation where police officers relied on case law 

(even prior Supreme Court precedent) that was later determined by the Supreme Court 

to be inconsistent with constitutional guarantees.  Id. at 1132.  The Gonzalez court also 

concluded that if the good-faith exception were employed to defeat suppression claims 

                                                   - 4 -                                              2289

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

based on  Gant, this would undermine the whole notion that  Gant should be applied 

retroactively to all defendants whose convictions were   not yet final.                Ibid.   In other 

words, this use of the good-faith exception would conflict with the Supreme Court's 

holding in Griffith v. Kentucky.  Ibid. 

                We     agree   with   the  Ninth    Circuit.   It  strikes  us   as  a  strange   sort  of 

retroactivity to say that Gant governs the cases of all defendants whose convictions were 

not yet final when Gant was decided, but in the same breath to tell these defendants that 

they have no remedy if they or their belongings were subjected to searches that violated 

Gant, as long as the police complied with pre-Gant law. 

                The courts of Alaska have not yet decided whether to adopt a good-faith 
exception to the exclusionary rule. 3         However, even assuming that Alaska law should 

recognize a good-faith exception, we hold that this exception would not apply to the 

situation presented here:       an attempt to circumvent the retroactive application of Gant 

that is mandated by Griffith v. Kentucky. 

        Why we conclude that the search of Deemer's vehicle - more specifically, 
        the search of Deemer's coat lying on the back seat of the vehicle - was 
        lawful under Gant 

                As we explained above, Gant re-affirmed the doctrine that the police have 

the authority to search a vehicle incident to an arrest if they have a reasonable belief that 

    3   See Jackson   v.   State,   926   P.2d   1180,   1184   n.   1   (Alaska   App.   1996)   ("Given   our 

disposition of this case, we need not reach the issue[] of whether Alaska should recognize 
a 'good faith' exception to the exclusionary rule[.]"); Cabral v. State, unpublished, Alaska 
App. Memorandum Opinion No. 5290 (January 9, 2008), 2008 WL 110493 at *13 ("The 
Alaska appellate courts have never decided whether to adopt [the good-faith] exception to 
the exclusionary rule.") 

                                                  - 5 -                                             2289

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

evidence relevant to "the crime of arrest" might be found in the vehicle.                   129 S.Ct. at 


                Although       the  Supreme     Court's    language     might   be   read   narrowly,    as 

referring solely to evidence of the crime that the police announce to be the basis for the 

suspect's   arrest,   we   believe   that   this   phrase   means   something   broader:     it   refers   to 

evidence of any crime for which the police already have probable cause to make an 


                Alaska     has   long   restricted   searches    incident   to  arrest   to  searches   for 

weapons and for fruits, instrumentalities, or other evidence of the crime for which the 
suspect was arrested. 4      But as we explained in Baxter v. State, 77 P.3d 19 (Alaska App. 

2003), the true limitation under Alaska law is that the search must be for evidence of a 

crime   for   which   the   police   already   have   probable   cause   to   make   an   arrest   -   not 

necessarily the particular crime that the police announce as the basis for the arrest.                 Id. 

at 26. 

                 This interpretation of the law follows from the principle that the propriety 

of an arrest or a warrantless search is assessed under an objective evaluation of the facts 

known      to  the   police,   rather   than   on   the  arresting    officer's   subjective     belief  or 
understanding as to why the arrest or the search is justified. 5             The Fourth Amendment 

is not violated when the arresting officer is unable to correctly articulate the basis for the 

arrest or the search.     Rather, the Fourth Amendment is violated when the arrest or the 

search is unreasonable under the facts known to the police. 

    4   See McCoy v. State, 491 P.2d 127, 137-38 (Alaska 1971). 

    5   See Bertilson v. State, 64 P.3d 180, 185 (Alaska App. 2003); Snider v. State, 958 P.2d 

1114, 1117-18 (Alaska App. 1998);Beauvois v. State, 837 P.2d 1118, 1121-22 n. 1 (Alaska 
App. 1992); State v. Kendall, 794 P.2d 114, 116-17 (Alaska App. 1990). 

                                                   - 6 -                                               2289 

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

                In Deemer's case, even though the troopers told Deemer that they were 

arresting her under the authority of a pre-existing warrant that was issued when she failed 

to appear on other criminal charges, the troopers at the same time had probable cause to 

believe that Deemer had just committed the offense of falsely identifying herself to them 
while she was being detained for investigation of a crime. 6 

                Deemer in fact concedes (in her supplemental brief) that "[a]t the time [the 

troopers conducted] the search [of her vehicle], Ms. Deemer could have been ... charged 

with providing false information ... , a class A misdemeanor."  Deemer argues, however, 

that the police had insufficient justification to conduct a search of Deemer's vehicle for 

evidence of this crime. 

                As we noted in our prior decision, Alaska law requires motorists to have 
their driver's license in their possession. 7       Although Deemer told the troopers that she 

had no identification with her, the troopers could reasonably assume that Deemer, having 

decided to lie to them about her true identity, would also attempt to conceal the fact that 

her vehicle contained documentary proof of her lie.                Given these circumstances, the 

troopers had sufficient reason to believe (under Gant) that Deemer's vehicle contained 
evidence of her crime of falsely identifying herself. 8 

                Deemer argues in the alternative that, even if the troopers had reason to 

believe that Deemer's vehicle contained her driver's license or other evidence of her true 

identity,   the   troopers'   interest   in   securing  this   evidence   was   so   slight   that   it   was 

outweighed by Deemer's privacy interest in the passenger compartment of her vehicle. 

    6   AS 11.56.800(a)(1)(B)(i). 

    7   AS 28.15.131.

    8   Accord , Armstead v. Commonwealth , 695 S.E.2d 561, 565 (Va. App. 2010); but see

United States v. Davis, 598 F.3d 1259, 1261 (11th Cir. 2010). 

                                                  - 7 -                                              2289 

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

                 In   particular,   Deemer   points   out   that   the   troopers   already   had   enough 

information to charge her with the crime of falsely identifying herself - because one of 

the troopers on the scene was personally acquainted with Deemer, and identified her. 

Deemer argues that because it was not strictly necessary for the troopers to obtain her 

driver's license (or any other physical evidence) in order to establish who she was, we 

should invalidate the search of Deemer's vehicle on policy grounds. 

                 Deemer points out that physical evidence of a person's identity is often 

quite small. Such evidence might be carried, contained, or found lying in almost any part 

of the passenger compartment or trunk of a vehicle.                Deemer argues that allowing the 

police to search for physical evidence of a motorist's identity is tantamount to giving the 

police  carte   blanche   authority   to   search   the   entire   vehicle   -   even   to   the   point   of 

dismantling panels and seats. 

                 There is very little case law that directly addresses the question of whether, 

or how intrusively, the police may conduct a search for physical evidence of a person's 

identity.   No prior Alaska case has dealt with the search of a vehicle for evidence of a 

motorist's identity, although a few Alaska cases have addressed searches of aperson for 

evidence of their identity.       For example, in Harris v. State, unpublished, Alaska App. 

Memorandum Opinion No. 1355 (March 11, 1987), 1987 WL 1359274 at *1, this Court 

concluded       that  the  police   were    justified   in  conducting     a  pat-down      search   of  the 

defendant's person for identification (i.e., patting the defendant's clothing and removing 

objects from the defendant's pockets) where the police already had probable cause to 

arrest   the   defendant,   and   the   defendant   had   given   them   a   false   name   and   had   not 

produced a driver's license. 

                 This Court's most extensive discussion of this issue is found in Stephens 

v. State, 698 P.2d 664 (Alaska App. 1985).   The defendant in Stephens was arrested and 

brought   to   the   police   station.  Ibid.    There,   he   refused   to   identify   himself   -   and, 

                                                   - 8 -                                               2289

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

consequently,       a  police   officer   searched     the  defendant's     pockets    for   identification 

documents or other evidence of his identity.             698 P.2d at 664-65. 

                 This   Court   held   that   the   search   was   proper   under   those   facts,   but   we 

suggested that such searches should only be allowed in limited circumstances. Id. at 666. 

We acknowledged that if the police were given broad authority to conduct searches for 

physical evidence of a person's identity, there was a real danger that the police would use 

this authority as a pretext to perform warrantless searches for contraband or for evidence 

of other crimes for which the police did not yet have probable cause to make an arrest. 


                 In footnote 2 of the Stephens opinion, this Court discussed the appropriate 

scope of searches for evidence of identity.              We   noted   that Professor LaFave, in his 

treatise    on   the  law    of  search    and   seizure,   advocated      fairly  strict  limitations    on 

identification searches that are conducted incident to an investigative stop.                  According 

to Professor LaFave, 

                 such    searches    should    be   limited   ...  to  wallets  or  similar 
                 common repositories of identification papers, and examina­ 
                 tion of such containers should be allowed only to the extent 
                 necessary to find a driver's license or similar document.  And 
                 if the precise location of the wallet or like container is not 
                 known,     only   a   frisk   should    be  allowed     as  a  means     of 
                 discovering it. 

Stephens, 698 P.2d at 666 n. 2, quoting Wayne R. LaFave, Search and Seizure:                               A 

Treatise on the Fourth Amendment (1st ed. 1978 & Supp. 1985), § 9.4(g), Vol. 3, p. 94 

(emphasis in the original). 

                 Having acknowledged Professor LaFave's views, this Court declared that 

we "decline[d] to adopt Professor LaFave's recommendation in total, at least where the 

suspect   has   been   subjected   to   a   full   custodial   arrest   [as   opposed   to   an   investigative 

                                                   - 9 -                                               2289

----------------------- Page 10-----------------------

stop]."   Ibid.  However, we then endorsed LaFave's comments as "a useful guide in 

keeping searches for identification suitably narrow": 

                If an arrestee cannot be identified, and, after being given a 
                full   opportunity   to  identify  himself[,]   refuses  to  identify 
                himself, [a search for identification is authorized, but] the 
                search ... must be narrow and reasonable.  We assume that in 
                most cases the police can identify a suspect by patting him 
                down to see if he has a wallet or similar "common repository 
                of identification papers" and looking inside that item only to 
                the extent necessary to find identification. 


                Deemer's case is factually distinct from Stephens in three pertinent respects. 

First, Deemer did not "refuse to identify herself"; instead, she affirmatively identified 

herself with a false name.      Second, Deemer's case is not an instance where an arrestee 

"could not be identified"; rather, Deemer was identified by an officer on the scene, and 

she was arrested on a pre-existing warrant based on that officer's knowledge of her true 

identity.  Third (and finally), the troopers' justification for seeking physical evidence of 

Deemer's identity was not to try to establish her identity, but rather to try to obtain 

corroborating evidence that she had just committed a crime - the offense of falsely 

identifying herself when she was being investigated or arrested for a separate crime. 

                One    of  the  few   cases   addressing    the  proper   scope   of  a  search   for 

identification in similar circumstances is In re Arturo D., 38 P.3d 433 (Cal. 2002).  The 

defendant in Arturo D.  was stopped for a traffic violation and then failed to provide 

personal identification or vehicle registration documentation (both being required by 

California law). Id. at 436.  The California Supreme Court held that, in this situation, the 

police were justified in conducting a warrantless search of the passenger compartment 

of the vehicle for the driver's identification and the vehicle registration.  Id. at 445-46. 

                                               -  10 -                                         2289

----------------------- Page 11-----------------------

                The California court declared that the permissible scope of this search was 

anywhere in the vehicle where identification or vehicle registration "reasonably may be 

expected to be found."  Id. at 446.   Citing Professor LaFave, the court also declared that 

the police were not required to credit the defendant's assertion that he had no driver's 

license.  Id. at 445-46, citing Wayne R. LaFave, Search and Seizure:                 A Treatise on the 

Fourth Amendment (4th ed. 2004), § 7.4(d), Vol. 3, pp. 663 ("[I]f the driver has been 

given an opportunity to produce proof of registration but he is unable to do so, and even 

if he asserts that there is no such proof inside the car, the officer is not required to accept 

such an assertion at face value ... [but] may look for registration papers on the dashboard, 

sun visor[,] and steering column and, if not found in those places or seen in plain view, 

in the glove compartment [or other] places where [the registration] may reasonably be 


                The California court also cited a long list of cases where courts upheld the 

discovery and seizure of wallets from beneath the front seats of vehicles when the police 

had a proper justification for searching for the driver's identification. Arturo D., 38 P.3d 

at 446-47, 451. 

                Given the facts of Deemer's case, we need not decide whether to endorse 

the California Supreme Court's holding that, whenever a motorist is validly stopped for 

a traffic violation and then fails to produce their driver's license and/or their vehicle 

registration   as   required   by   law,   a   search   for   that   documentation   can   be   conducted 

anywhere within the vehicle where a driver's license or vehicle registration "reasonably 

may be expected to be found".           Rather, Deemer's case can be resolved under a more 

modest rule: 

                When the police have probable cause to believe that physical evidence of 

a driver's identity is evidence of an independent crime (i.e., a crime other than failing to 

carry or produce the documentation required of motorists), the police can search the 

                                                 -  11 -                                            2289

----------------------- Page 12-----------------------

places   and   articles   within   the   passenger   compartment   where   one   would   reasonably 

expect to find that evidence. 

                 In Deemer's case, her coat was lying on the back seat of the car, and it was 

reasonable to suppose that Deemer's driver's license (or other physical evidence of her 

identity) might be found in the pockets of her coat.  Accordingly, the search of Deemer's 

coat for this evidence was lawful. 

                 We   express   no   opinion   as   to   potential   alternative   justifications   for   the 

search conducted in Deemer's case, and no opinion as to whether that search might 

justifiably have had a greater scope. 

                 In our previous decision, we concluded that, "given the lawfulness of this 

search [of the coat] for evidence of Deemer's identity, the permitted scope and intensity 

of   this   search   would   uncover   the   baggies   of   cocaine   [in   the   pockets   of   the   coat]." 

Deemer,      2009    WL    962822     at  *3.   Deemer      has   not  asked    us  to  re-examine      that 


                 Deemer's coat contained over 33 grams of cocaine, with a street value of 

approximately $3,300.         In addition, the coat contained a small electronic scale, several 

syringes, a couple of small spoons, and tiny plastic bags with cocaine residue in them. 

Based on Deemer's possession of this sizeable amount of cocaine plus the related drug 

paraphernalia, the troopers could reasonably suspect Deemer of possessing cocaine for 

purposes of sale, and they could enlarge the scope of their search to include additional 

evidence relating to this drug offense - including weapons.                   See AS 11.61.200(a)(1), 

which makes it a crime to possess a firearm in furtherance of a drug felony.                    Thus, the 

police   validly   discovered   and   seized   the   handgun   from   underneath   the   front   seat   of 

Deemer's vehicle. 

                                                  -  12 -                                             2289

----------------------- Page 13-----------------------


              For the reasons explained here, we conclude that the search of Deemer's 

vehicle, and the ensuing discovery and seizure of the cocaine and the handgun, were 

lawful under the Fourth Amendment as construed in Arizona v. Gant .  Accordingly, we 

again AFFIRM the judgement of the superior court. 

                                            -  13 -                                      2289
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