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

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


         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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                                                                    Court of Appeals No. A-12470  

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


                                                                               O P I N I O N  


                                    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  



                     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                                                                                               



                                               The judge also convicted Cardenas of second-degree weapons  



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  



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  



                            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  



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                                                                                                                                                   



                                  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  



                                     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  



 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-----------------------


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  



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  



                                                                     -  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  



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



                                                                     -  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-----------------------


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                                                                                                


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  



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.  



                              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).  

                                                                                            -  9 -                                                                                     2621  

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