Opinion
Court of Appeals No. A-10490.
February 16, 2011.
Appeal from the Superior Court, Third Judicial District, Palmer, Kari Kristiansen, Judge, Trial Court No. 3PA-08-38 CR.
Appearances: David R. Edgren, Edgren Law Offices, LLC, Anchorage, for the Appellant. Terisia 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, Judges.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3. Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Allen K. Theodore appeals his conviction for felony driving under the influence, felony refusal to submit to a chemical test, and misconduct involving weapons in the fourth degree, arguing the superior court erred in refusing to suppress evidence suggesting that his truck would start without a key, and claiming that insufficient evidence supports his convictions. We reject his arguments and affirm his convictions. Facts and procedural history
Two brothers, Richard and James Latimer, living outside of Talkeetna, called the Alaska State Troopers on January 5, 2008, at 1:30 a.m., complaining that someone was stuck in their driveway. Trooper Andrew Adams responded to the scene. When he arrived at the residence, he saw Theodore climb out of the driver's side door of a truck. Although Theodore denied driving the truck, after an initial investigation, Trooper Adams arrested Theodore for driving under the influence (DUI). Trooper Adams interviewed the Latimers and inspected Theodore's truck. In the snow outside the driver's side door of the truck he found a handgun, and he found a magazine and holster on the seat of the truck. He also found an empty beer can on the driver's side floorboard and an unopened twelve-pack of beer on the passenger's side floorboard.
When Trooper Adams arrested him, the keys Theodore had did not fit the truck. In preparing to impound Theodore's truck, Trooper Adams turned the truck's ignition device to the accessory position without a key: the battery power came on, but he did not turn the motor on. Trooper Adams was checking to see if the truck could be shifted out of park to avoid damaging the truck during the impound process.
Theodore's defense at trial was that another individual had driven the truck to the Latimers' yard. After the truck got stuck, the other individual left with Theodore's key and a promise to return but never did. Several days after he was charged, Theodore turned over to the troopers a wallet he said he found in his truck. The wallet belonged to a man who stated he had lost it two years before at the Dimond Mall in Anchorage and who claimed that he had never been in Talkeetna and had never met Theodore before.
Theodore filed a motion to suppress evidence found during Trooper Adams's search of his truck, including the turning of the ignition device. He argued the turning of the ignition device was outside of the scope allowed by a search incident to arrest. He also argued the trooper did not have the authority to turn the ignition device in preparation to having the truck towed because the truck was located on private property. The trial court questioned whether the trooper's turning of the ignition lock cylinder was a search, but ultimately concluded that the trooper's action was a proper component of the impound process.
See Wayne R. LaFave, Search Seizure: A Treatise on the Fourth Amendment § 2.3 (4th ed.) (citing cases finding the fitting of a key into a keyhole is not a search or is a search so inconsequential that neither probable cause nor a search warrant is required).
A jury convicted Theodore of all three charges.
Turning the ignition device was incidental to impounding the truck and a valid search incident to arrest
During his search of the vehicle, Trooper Adams turned the ignition lock cylinder without a key inserted to see if Theodore's truck would work without a key. Trooper Adams testified that in impounding a vehicle, it is standard to determine whether the vehicle can be shifted out of park to avoid damaging the vehicle during the impound process. Trooper Adams testified that when he could not find the ignition key on Theodore, he "turned the ignition to see if the power would turn on or not." He turned the ignition device to the accessory position, and the truck's battery power came on. Superior Court Judge Kari Kristiansen denied Theodore's motion to suppress this evidence, finding that Trooper Adams was authorized to impound the vehicle.
Judge Kristiansen's findings are supported by the record. It was reasonable for Trooper Adams to check that the vehicle could be taken out of park before calling for a tow company to impound Theodore's truck. If the truck could not be taken out of park, Trooper Adams would have had the opportunity to take further steps to minimize damage to Theodore's vehicle. Taking such action was incidental to the impound.
Cf. D'Antorio v. State, 926 P.2d 1158, 1162 (Alaska 1996) (justifying inventory searches in part as a means of protecting the owner's property while it is in police custody).
See Andrews v. United States, 922 A.2d 449, 457 n. 13 (D.C. 2007) (the authority to tow and impound a vehicle for violating traffic regulations necessarily included the right of the officer to enter the vehicle).
Trooper Adams's turning of the ignition device is also a valid search incident to arrest. Trooper Adams had already arrested Theodore for DUI when he searched the interior of Theodore's truck. Although Theodore had denied driving, Trooper Adams saw Theodore get out of his truck from the driver's door, and he observed signs that Theodore was intoxicated. Where the police have probable cause to arrest for a crime, "the police can search the places and articles within the passenger compartment where one would reasonably expect to find . . . [physical] evidence [of the crime]." Trooper Adams was authorized to search the interior of Theodore's vehicle for evidence of DUI, and his inspection of the ignition device was relevant to the issue of whether Theodore might have been driving the truck without a key.
See Deemer v. State, 244 P.3d 69, 75 (Alaska App. 2010); see also Arizona v. Gant, ___ U.S. ___, 129 S. Ct. 1710, 1719, 173 L.Ed.2d 485 (2009).
Theodore asserts the trooper's inspection of the ignition was beyond the scope of a valid search incident to arrest because the ignition device is something that is not "immediately associated with the person" and because he had been secured in the police car for fifteen minutes at the time of the search. But the limiting language "immediately associated with the person" applies to searches of closed containers: "[U]nder Alaska law, [in a search incident to arrest,] the police can search closed containers without a warrant only if exigent circumstances exist or if the item is `immediately associated with the person.'" Because Trooper Adams did not search a closed container, this limitation on searches does not apply.
Howard v. State, 209 P.3d 1044, 1048 (Alaska App. 2009) (quoting Crawford v. State, 138 P.3d 254, 259 (Alaska 2006)).
Although the search must be "roughly contemporaneous" with the arrest, reasonable delays due to the necessity of the situation are permissible. In this case, after Trooper Adams arrested Theodore, he interviewed the two witnesses and then inspected the interior of Theodore's truck as both a search incident to arrest and an inventory search in preparation to impound the vehicle. The delay of approximately fifteen minutes between Theodore's arrest and the inspection of the truck was reasonable under the facts in this case. There was sufficient evidence of Theodore's impairment to uphold the DUI and weapons convictions
See McCoy v. State, 491 P.2d 127, 128 n. 1, 130-31 (Alaska 1971) (search of jacket at police station thirty to forty-five minutes after arrest at airport upheld as valid search incident to arrest).
See Dunn v. State, 653 P.2d 1071, 1080 (Alaska App. 1982) (discussing McCoy, 491 P.2d at 136-38); see also Gant, ___ U.S. ___, 129 S. Ct. at 1719 (search incident to arrest for evidence of crime allowed even when suspect has been secured); Deemer v. State, 244 P.3d at 70 (same).
Theodore argues there was insufficient evidence that he was impaired to convict him of DUI and misconduct involving weapons in the fourth degree. He points out, for example, that the State did not prove that he drank the beer from the empty can found in his truck, or that the beer cans in his car came from the establishment at which he had been drinking. He also points out that a witness (Richard Latimer) testified that he did not see him stagger or slur his words. Theodore interprets the evidence in the light most favorable to him, but in reviewing a sufficiency of the evidence claim, we view the evidence and the reasonable inferences from the evidence in the light most favorable to upholding the verdict. Viewing the evidence in the light most favorable to the verdict, reasonable jurors could conclude the State proved Theodore's impairment beyond a reasonable doubt.
Grandstaff v. State, 171 P.3d 1176, 1210 (Alaska App. 2007).
Id.
Theodore refused to perform field sobriety tests and to give a breath sample. The evidence showed Theodore had an odor of alcohol, slurred speech, bloodshot, watery eyes, needed help walking, swayed while standing, and admitted consuming four beers. There was a full twelve-pack of beer on the passenger's side of the vehicle and an empty beer can on the driver's side floorboard. Additionally, Theodore was disoriented — he did not know where he was. He told the officer he was at a friend's house on Montana Creek Road, but he actually was in the yard of a private residence six and a half miles north of there. And, while driving, he hit a wood pile, drove the truck into a hole, and the Latimers were afraid he was going to hit their vehicle that was parked in the yard. Theodore initially denied drinking and then admitted consuming three to four beers. Theodore denied the truck was his and then admitted owning the truck. The trooper also testified Theodore had minor mood swings during his contact with him, which the trooper attributed to intoxication. Based on this evidence, a reasonable jury could reasonably conclude Theodore was impaired. There was sufficient evidence that Theodore drove the truck
See Bradley v. State, 197 P.3d 209, 216-17 (Alaska App. 2008) (evidence that Bradley was "swaying and unsteady on his feet," that his speech was slurred, that he smelled strongly of alcohol, that he had "blood shot and watery eyes," and "admitted that he had been drinking" was sufficient to support finding that Bradley was intoxicated).
Again pointing to weaknesses in the State's case, Theodore argues the evidence was insufficient to support the conclusion he drove or operated the truck. He argues we should question the credibility of the witnesses. But the credibility of the witnesses is an issue for the jury. Taking the evidence in the light most favorable to upholding the verdict, the jury reasonably could have concluded Theodore drove the truck.
See Simpson, 877 P.2d at 1320-21.
Richard and James Latimer, the witnesses w ho initially contacted Theodore and called the police, testified they were aware of a truck in their yard when they heard the truck engine revving and noticed the motion-activated light come on the front of their home. They watched as the driver backed the truck into a wood pile and then the front wheel of the truck got stuck in a hole in the yard. They testified that only one person was in the truck; the man who had been driving the truck, tearing up their yard, was the person they saw the police arrest — Theodore. Richard Latimer testified he had a view of Theodore during the entire incident.
When Trooper Adams arrived, Theodore got out of the truck on the driver's side. Trooper Adams testified there was only one set of footprints associated with the truck. And James Latimer testified that the following morning there were only two sets of footprints in the yard: Trooper Adams's and Theodore's. While investigating, Trooper Adams found the truck's passenger-side door was locked but the driver's door was unlocked. Theodore initially denied the truck was his but then admitted owning the truck.
This record, recounted in the light most favorable to upholding the verdict, contains ample evidence on which a jury could reasonably conclude Theodore drove the truck. Conclusion
The judgment of the superior court is AFFIRMED.