Summary
upholding search of defendant's van authorized by probation officer after police officer called probation officer during traffic stop and relayed information that, after stopping defendant's van for a traffic violation, he smelled alcohol on defendant's breath
Summary of this case from McGraw v. StateOpinion
Court of Appeals No. A-10224.
February 24, 2010.
Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa White, Judge, Trial Court No. 3PA-07-1966 CR.
Alexandra Foote-Jones, 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 Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
On July 28, 2007, Wasilla Police Officer Dan Bennett was on routine patrol. At around 7:30 p.m., Officer Bennett saw a green Ford van parked in a parking lot. Earlier in the day, Officer Bennett heard that a green van had been involved in a hit and run accident. When Officer Bennett turned into the lot, the van left, failing to yield to oncoming traffic and forcing another car to slam on its brakes. Officer Bennett also discovered that the van's registration was expired. Officer Bennett pulled the van over. Billy Bostwick, the driver, informed Officer Bennett that he was not licensed to drive, that he did not have liability insurance, and that the van's registration had expired. Officer Bennett smelled a faint odor of alcohol coming from the van. Bostwick explained that some alcohol had spilled in the van earlier. When Officer Bennett checked on Bostwick's license, he learned that Bostwick's license was revoked and that Bostwick was on probation for felony driving under the influence.
Officer Bennett then asked for Bostwick's consent to search the van. After some discussion, Bostwick consented. Officer Bennett frisked Bostwick. He found about $2370 in cash. Officer Bennett then checked the glove compartment. When he discovered it was locked, he took the keys out of the ignition and unlocked it. In it, Officer Bennett saw a bag of marijuana. Officer Bennett closed the glove compartment and explicitly asked Bostwick for permission to search the glove compartment and other containers in the van. Bostwick told Officer Bennett that he would need a warrant to continue searching the van. Officer Bennett then arrested Bostwick for driving with his license revoked. He told Bostwick that he would call Bostwick's probation officer, who would likely give him permission to search the van. Officer Bennett again asked Bostwick if he could search the van. Bostwick denied consent.
Officer Bennett contacted the on-call probation officer. The probation officer informed Officer Bennett that Bostwick was subject to a probation condition that required him to consent to the search of any vehicle in Bostwick's control. The probation officer authorized Officer Bennett to continue searching the van. Officer Bennett continued his search, eventually finding cocaine and marijuana. Based in part upon this evidence, the State charged Bostwick with several drug offenses. The State also charged Bostwick with driving while his license was revoked.
Bostwick filed a motion to suppress the evidence that Officer Bennett obtained by searching the van. Superior Court Judge Vanessa White denied Bostwick's motion to suppress. She found that Officer Bennett had made a lawful traffic stop of Bostwick's van because he had observed Bostwick's moving violation of failing to yield and discovered that Bostwick's motor vehicle registration had expired. She concluded that Officer Bennett was justified in asking for Bostwick's consent to search his person and van. She concluded that because Officer Bennett had observed Bostwick's failure to yield to an oncoming vehicle, knew that he was on probation for felony driving under the influence (which established that Bostwick had a significant record of prior driving under the influence offenses), and smelled the odor of alcohol coming from the van, he had established a reasonable suspicion that Bostwick was driving under the influence. She concluded that Bostwick had voluntarily consented to the search.
AS 28.35.030(n).
Judge White concluded that, after Bostwick withdrew his consent and was placed under arrest, Bostwick's probation officer's authorization to complete the search of Bostwick's van was valid. She rejected Bostwick's contention that, for a probation search to be valid, the probation officer had to be physically present to authorize the search.
Following this decision, Bostwick was convicted, based upon stipulated facts. He was found guilty of all five counts for which he was charged: one count of misconduct involving a controlled substance in the third degree, two counts of misconduct involving a controlled substance in the fourth degree, one count of misconduct involving a controlled substance in the sixth degree, and one count of driving with a revoked license. Bostwick appeals.
AS 11.71.030(a)(1).
AS 11.71.040(a)(2), AS 11.71.040(a)(3)(A).
AS 11.71.060(a)(1).
AS 28.15.291(a)(1).
Officer Bennett's request for Bostwick's consent to search
Bostwick first contends that it was unlawful for Officer Bennett to ask him to consent to search the van. Bostwick relies on Brown v. State. In Brown, we held that the Alaska Constitution imposed "restrictions on a police officer's authority to request a motorist's permission to conduct a search during a routine traffic stop." The Brown decision, however, was limited to its facts:
182 P.3d 624 (Alaska App. 2008).
Id. at 626.
Brown was stopped at 3 a.m. for an equipment violation because her car's rear license plate was not properly illuminated. Brown's car and the trooper's car were the only cars on the road. The trooper never informed Brown why he stopped her, and he took and retained Brown's driver's license. As the majority opinion states:
When the trooper returned to Brown's car, he still refrained from telling Brown the reason for the stop. Moreover, even though the trooper had decided to let Brown off with a warning, the trooper gave Brown no indication that she was free to go (or would shortly be free to go). Instead, the trooper asked Brown to consent to a search of her person and her vehicle for drugs.
Because Brown remained ignorant of the reason for the stop, she did not know the basis for the trooper's assertion of authority over her. Consequently, even if Brown had been fully conversant with search and seizure law, Brown had no way of knowing if she had the right to refuse the trooper's request — no way of knowing if the trooper's request to conduct a search was indeed a request or was, instead, simply a polite phrasing of a command.
Id. at 634-35 (Coats, C.J., concurring).
We held that, even though the trooper had asked for Brown's consent well within the amount of time that a motorist would expect to be detained for a routine traffic stop, "Article I, Section 14 of the Alaska Constitution prohibited [the trooper] from asking Brown for permission to search her person and her vehicle for drugs." We pointed out that "Brown's case presents a particularly egregious example" of the police using a routine traffic stop to obtain the motorist's consent to search. We stated that we did not need to "decide whether Article I, Section 14 should be interpreted to completely preclude requests for searches during a routine traffic stop unless the search is related to the ground for the stop or is otherwise supported by a reasonable suspicion of criminality."
Id. at 634 (opinion of the court).
Id.
Id.
We conclude that Bostwick's case also does not require us to resolve this issue. Judge White's factual findings, which are supported by the record, established that this was far from a routine traffic stop. (Judge White's decision was issued before our decision in Brown. However, she considered State v. Carty, which we discussed in our Brown decision.) Judge White found that Officer Bennett had observed Bostwick "driving in a fashion that could indicate he was impaired, in that he failed to yield to oncoming traffic." In addition, because Officer Bennett discovered that Bostwick was on probation for felony driving under the influence, he was aware "that [Bostwick] had been convicted at least three times in ten years of driving while intoxicated." Adding the odor of alcohol Officer Bennett smelled coming from Bostwick's van, Judge White concluded that the officer had reasonable suspicion that Bostwick was driving under the influence. In addition, because Bostwick was on probation for felony driving under the influence and was currently committing the crime of driving with his license revoked, he was subject to arrest. Under these circumstances, we conclude that Officer Bennett was justified in asking to search Bostwick's person and van.
790 A.2d 903 (N.J. 2002).
Brown, 182 P.3d at 630.
Bostwick's argument that the probation search was illegal
Bostwick argues that the continuing search Officer Bennett conducted after he withdrew his consent was illegal because it was not conducted under the direction of his probation officer. Bostwick's major contention in the trial court was that the search could not properly be considered to be under the direction of his probation officer because the probation officer was not present to direct the search.
Bostwick relied on Roman v. State. In her findings, Judge White acknowledged that, in Roman, the probation officer was present when the search was conducted. She observed that "Bostwick was on probation after repeated convictions for driving while intoxicated. His circumstances justify including searches by or `under the direction' of his probation officer in order to promote the dual goals of public safety and Bostwick's own rehabilitation." She concluded that there was nothing in the case law that "would suggest that the phrase `under the direction' of a correctional officer requires the correctional officer to be physically present and directing the search itself." She concluded that "Bennett followed the correct procedure in obtaining the authorization of Bostwick's probation officer before he recommenced his search of Bostwick's vehicle." She therefore upheld the search.
570 P.2d 1235 (Alaska 1977).
(Footnote omitted).
We conclude that Judge White did not err in concluding that the search was properly conducted under the direction of Bostwick's probation officer. Bostwick argued in the trial court that the search was illegal because it was not conducted under the direction of his probation officer because the probation officer was not physically present to direct the search. But we agree with Judge White that Roman does not require this. And we fail to see, under the facts of this case, what the utility would be of requiring the probation officer to drive to the scene of the search.
On appeal, Bostwick expands his argument to include the contention that the search was not conducted under the direction of the probation officer because Officer Bennett "initiated [the search] and used the on-call probation officer as a last resort after repeatedly trying to get Bostwick to consent to the search," — i.e., the probation officer was merely an agent of the police. Bostwick's motion in the trial court does not appear to raise this issue. Consequently, Judge White's decision does not directly address it. Under these circumstances, Bostwick has not preserved the issue for appeal.
Hollstein v. State, 175 P.3d 1288, 1290 (Alaska App. 2008) ("[U]nder Alaska law, a litigant who wishes to raise an issue on appeal must show that the issue was adequately preserved in the lower court — which means not only that the litigant presented the issue to the lower court, but also that the lower court ruled on that issue.") (footnote omitted).
The issue itself appears meritless. As Judge White pointed out, "Bostwick was on probation after repeated convictions for driving while intoxicated." Officer Bennett "had observed Bostwick driving in a fashion that could indicate he was impaired, in that he had failed to yield to oncoming traffic." Officer Bennett smelled "alcohol in Bostwick's vehicle." Officer Bennett had learned that Bostwick was driving with no insurance in a car where the registration had expired. Bostwick was driving while his license was revoked. In addition, before he contacted the probation officer, Officer Bennett had found marijuana in the glove compartment of Bostwick's van. Judge White concluded that it was inevitable that Bostwick was going to be arrested and Bostwick's probation officer was going to authorize a search of Bostwick's vehicle. These findings establish that the probation officer had strong independent reasons to authorize the search as part of his duty to supervise Bostwick's probation and did authorize the search for that purpose.
The judgment of the superior court is AFFIRMED.