STONE v. STATE, A-9866 (Alaska App. 6-18-2008)
Court of Appeals No. A-9866.Court of Appeals of Alaska.
June 18, 2008.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Robert B. Downes, Judge, Trial Court No. 4FA-05-1822 CR.
Marjorie Allard, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
COATS, Chief Judge.Page 2
Cynthia J. Stone pleaded no contest to a charge of misconduct involving controlled substances in the fourth degree, a class C felony.[fn1] Stone reserved her right to appeal the denial of a suppression motion that she raised in the trial court.[fn2]
After an evidentiary hearing, Superior Court Judge Robert B. Downes found that a state trooper lawfully arrested Stone while she was in her pickup truck, that the trooper performed a lawful search of the cab of the truck, and that the trooper saw cash and a lockbox in plain view. Judge Downes found that the trooper warned Stone of her Miranda[fn3] rights and asked Stone what was in the box. Stone answered that the box contained methamphetamine. Stone refused to give consent to the trooper to search the box. But the trooper got a search warrant and searched the box, which contained methamphetamine. Judge Downes found that the search was lawful and denied Stone’s motion to suppress.
On appeal, Stone argues that Judge Downes’s finding that the lockbox was in plain view is clearly erroneous and that he therefore erred in denying her motion to suppress. We uphold Judge Downes’s factual findings and affirm the decision of the superior court.
Factual and procedural background
Many of the facts in this case are in dispute. The parties, however, agree to the following facts: On November 23, 2004, Stone was lawfully pulled over by Alaska State Trooper Andrew T. Ballesteros for failure to have a front license plate and failure to have a properly-illuminated rear license plate. During this traffic stop, BallesterosPage 3
discovered that the rear license plate on Stone’s pickup truck was registered to a different vehicle. Stone told Ballesteros that she knew that her truck had the wrong plates. Ballesteros lawfully arrested Stone for misuse of plates in violation of AS 28.10.481. Ballesteros searched the cab portion of Stone’s pickup truck. At some point, he discovered a lockbox, shook it, and brought it to Stone (who was in the backseat of his patrol car), and read Stone her Miranda rights. After Stone waived her rights, she told Ballesteros that the lockbox contained methamphetamine, but she refused to allow him to search the box. Ballesteros obtained a search warrant. Methamphetamine and cash were found inside the box.
In her motion to suppress, Stone asserted that the lockbox had not been in plain view but rather had been inside of a closed duffel bag in the cab of her truck. Stone claimed that Ballesteros found the lockbox only after unzipping the duffel bag. She therefore asserted that he found the lockbox as the result of an illegal search.
At an evidentiary hearing held by Judge Downes, Ballesteros testified that, as he was stopping the vehicle, he noticed that Stone appeared to be “moving around a lot, making furtive movements . . . like she was either moving something or pushing something near the center of the seat.”
Ballesteros testified that after he arrested Stone, he had her sit in his police car. At that point, he approached her truck to conduct a search incident to arrest to ensure that there were not any weapons in the truck and to see if there was any other evidence — such as the proper plate, a registration form, a title, paperwork from DMV, etc. — that would make his case against Stone stronger. Ballesteros testified that he saw a backpack sitting on the passenger side of the truck — the “regular book bag” kind with a main zippered pouch and also a smaller zippered pouch on the front. The smaller front pocket was open, and Ballesteros noticed that a large amount of cash and a black lockbox werePage 4
protruding from the bag. Ballesteros testified that the lockbox — approximately six inches by four inches and two inches in depth — was in plain view.
After seeing the cash and the box, Ballesteros assumed, based on his training, that there was a possibility that there could be drugs in the box. According to his testimony, he picked up the box and shook it, but he did not open it. Ballesteros then took the box over to Stone, who was in the rear of his police vehicle. He read Stone her Miranda rights and asked if she would talk with him. After Stone waived her rights, Ballesteros asked Stone what was in the box, and she answered that the box contained methamphetamine. Stone refused to give consent for Ballesteros to search the box. Ballesteros got a search warrant, and he executed the search warrant later that day. The box contained methamphetamine.
Also at the evidentiary hearing, Ty S. LaFond testified. LaFond testified that prior to Stone’s arrest, he walked Stone to her truck after leaving the Pizza Hut on Old Richardson Highway. LaFond testified that he knew Stone had a lockbox and that he saw her put the lockbox at the bottom of her duffle bag. The duffle bag, according to LaFond, was about one and one-half to two feet tall, “something you’d throw over your shoulder,” and Stone used it to hold her books and art supplies. LaFond testified that he put the duffle bag “and her little pack” in her vehicle, and he stated that the duffle bag was closed when he placed it in the passenger side of the truck. Very shortly after Stone pulled away, prior to her going around the corner, LaFond saw a police car turn on its overhead lights, make a U-turn, and follow Stone’s vehicle.
Stone did not testify at the evidentiary hearing. Judge Downes denied
Stone’s motion to suppress. In his order, Judge Downes found the following facts:
On November 3, 2004 [sic: November 23, 2004], early in the morning, Ms. Stone was stopped by an Alaska State Trooper while she was driving a red pickup. The Trooper stopped the pickup because its rear license plate was notPage 5
illuminated (a traffic violation). . . . After Ms. Stone was stopped, the Trooper checked the license plate and discovered that it did not belong to the truck that Ms. Stone was driving. The Trooper then arrested Ms. Stone for Misuse of Plates. After arresting her, he conducted a search of the truck cab, and [he] searched an open bag that was on the seat next to where Ms. Stone had been sitting.
The Trooper saw an open pocket in the bag that contained a significant amount of cash. The Trooper also observed a small black box. The Trooper removed the box from the bag and shook it, and [then he] asked Ms. Stone about the contents. She had previously been advised of her rights pursuant to the U.S. Supreme Court decision in Miranda v. Arizona. Ms. Stone admitted that she had methamphetamine in the box, but [she] would not consent to a search of the box. The Trooper impounded the vehicle, applied for a search warrant, and eventually opened and searched the box and found methamphetamine.
A witness for Ms. Stone testified that he had seen her earlier in the morning put the box in the bottom of her bag before she got into her vehicle. The Court believes that the witness'[s] observations do not foreclose the possibility that Ms. Stone may have removed the box from the bag for a variety of reasons, including getting some of the methamphetamine for her personal use. Thus, the box could have been moved . . . to an area where it could have been easily observed by the Trooper.
Based on these facts, Judge Downes determined that the evidence was lawfully seized. Stone appeals, asserting that Judge Downes’s factual finding that the lockbox was in plain view is clearly erroneous. She contends that this factual finding cannot be reconciled with the testimony of LaFond and the police contact tape, which Stone asserts shows that Ballesteros searched her pickup truck for eight minutes before he found the lockbox. The trial court, however, is in a better position than this court to judge witness credibility. Trooper Ballesteros testified at the evidentiary hearing that thePage 6
lockbox was in plain view. Judge Downes did not have to reject LaFond’s testimony in order to find the trooper’s testimony credible. Ballesteros testified that as he was stopping Stone’s truck, Stone was “moving around a lot, making furtive movements . . . like she was either moving something or pushing something near the center of the seat.” In his findings, Judge Downes specifically considered the possibility that Stone might have moved the lockbox after she drove away from LaFond. Judge Downes’s finding that Stone might have moved the lockbox after she drove away from LaFond is consistent with the trooper’s testimony about his observations of Stone’s movements while he was in the process of stopping the truck. The police contact tape does not indicate otherwise.
We accordingly conclude that Judge Downes’s finding that Ballesteros saw the lockbox in plain view in the cab of Stone’s truck was not clearly erroneous. We accordingly conclude that Judge Downes did not err in denying Stone’s motion to suppress.
The judgment of the superior court is AFFIRMED.
[fn1] AS 11.71.040(a)(3)(A), (d). [fn2] See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974). [fn3] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694(1966).