Uptegraft v. State, 4679
| Decision Date | 05 December 1980 |
| Docket Number | No. 4679,4679 |
| Parties | Ralph K. UPTEGRAFT, Appellant, v. STATE of Alaska, Appellee. File |
| Court | Alaska Supreme Court |
Sue Ellen Tatter, Asst. Public Defender and Brian Shortell, Public Defender, Anchorage, for appellant.
Charles M. Merriner, Asst. Atty. Gen., Anchorage and Avrum M. Gross, Atty. Gen., Juneau, for appellee.
Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.
In this case, we are called upon to decide whether certain evidence was lawfully seized from an automobile. We conclude that the stop of the vehicle was permissible, that the initial search of the vehicle was valid under the plain view doctrine, and the second search of the vehicle was justified as a search incident to a lawful arrest. We consequently affirm the ruling of the superior court denying appellant's suppression motion.
In the early morning hours of Monday, December 5, 1977, Steven Watson was working at a Qwik-Stop grocery store in Anchorage. At about 1:40 a.m., a man entered the store wearing dark shoes, black pants, a gray sweatshirt and a green ski mask. He pointed a pistol at Watson's face and told him to fill a paper bag with money. Watson gave him about $38 in currency, food stamps and change. The robber then demanded the keys to Watson's pickup truck, a white Toyota with Idaho license plates. Watson watched the robber drive off, noted his direction and called the police. A police dispatcher broadcast a description of the vehicle.
Officer Dinwiddie of the Anchorage police, who was near the scene, heard the dispatch and shortly thereafter saw, coming towards him, a white Pontiac Tempest sedan with three occupants. Dinwiddie continued driving approximately another mile and a half after passing the Pontiac. He then saw a vehicle matching the description of the stolen pickup truck parked at a turnout off the highway. Dinwiddie did not see any other moving vehicles between the time he passed the Pontiac and the time he saw the truck. In the turnout were fresh car tracks in the snow indicating that a vehicle had left, headed in the direction of the Pontiac he had just passed. Dinwiddie immediately put out a locate call on the Pontiac.
About twenty-five minutes after the robbery, Officer Cargill of the Alaska State Troopers spotted a car matching the description of the Pontiac. After checking with the dispatcher to confirm the vehicle's description, Cargill decided to stop the vehicle. Officer Lyons was nearby in another patrol vehicle and the two officers proceeded to make a stop, employing procedures for detaining suspected felons. Lyons ordered the three occupants of the car to exit from the driver's side and move to the rear of the vehicle. The driver's side door was apparently left open. As the suspects were getting out of the car, Officer Daniels of the Anchorage police arrived. Daniels assisted the other two officers in patting down the suspects. After Daniels finished pat-searching one of the suspects, he walked to the passenger side of the vehicle and, using a flashlight, looked inside the car through the back passenger window. At this time, Lyons and Cargill were still in the process of pat-searching the other suspects, while the suspects were standing at the rear of the vehicle, facing the front of the car, with their hands in front of them.
Daniels was able to see what appeared to be a folded gray sweatshirt, similar to the one worn by the robber, behind the driver's seat on the floor of the car. Underneath the sweatshirt, protruding from a green cloth bag, was something that Daniels thought was a wooden handle of a handgun. 1
Daniels opened the passenger door, reached into the car and retrieved from the cloth bag what he believed was the handgun. In fact, it was a sawed-off shotgun. He took the weapon, checked to see if it was loaded, and placed it in his patrol car.
After disposing of the shotgun, Officers Cargill and Daniels re-entered the vehicle. Cargill testified that he observed all the remaining items of incriminating evidence (which included the stolen money, a green ski mask, and a pistol). It is not clear from the record what items were actually removed from the vehicle at this time. Apparently, Daniels removed from the car two weapons and a license plate, missing from the rear of the car. 2
Watson arrived at the scene of the stop about ten minutes later and positively identified one of the suspects as the man who had robbed him. The three suspects were then placed under arrest and taken away.
A motion to suppress the evidence from the warrantless searches was denied by the superior court. Uptegraft thereafter entered a plea of no contest to the robbery charge, reserving the suppression issue, was sentenced to four years' imprisonment. 3
Uptegraft first contends, 4 relying principally on Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), that the police had no basis for stopping the Pontiac. Prouse, which held that random vehicle stops are illegal when police have no articulable basis for suspecting a legal violation, is not on point. Here the state demonstrated that the police had sufficient facts to warrant a reasonable person in the belief that the investigatory stop was justified. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1879-1880, 20 L.Ed.2d 889, 906 (1968). In Coleman v. State, 553 P.2d 40 (Alaska 1976), which involved an investigatory stop of a motor vehicle, we established the test for making such stops:
(A) police officer with a reasonable suspicion that imminent public danger exists or serious harm that has recently occurred was caused by a particular person may stop that person.
553 P.2d at 43. 5 The police in this case had seen the Pontiac near the scene of the crime, moments after it had occurred. Officer Dinwiddie testified that the Pontiac was the only vehicle he passed on the road between the time he first saw it and the time he came upon the stolen pickup truck. There were tire tracks in the snow, indicating that an automobile had headed in the direction the Pontiac was traveling. These facts were enough to infer that the lone robber had met one or more accomplices and had made his getaway in the Pontiac. Consequently, we conclude that the initial stop was permissible.
As discussed above, after Officers Cargill and Lyons had pulled the Pontiac over, a third officer, Officer Daniels, arrived as the suspects were getting out of the car. Daniels finished pat-searching a suspect and walked to the side of the car where, with the aid of a flashlight, he could see a gray sweatshirt matching the description of that worn by the robber, and the butt of a gun. Daniels opened the car door and retrieved the gun. Uptegraft contends that these items were not in plain view because the car windows were frosted, and that the officer allegedly did not see the weapon until he opened the door. In our opinion, neither contention is supported by the evidence, and we conclude that the items were in plain view.
Uptegraft's sole remaining argument is that, having seen what appeared to be a weapon, the police were then obligated to obtain a search warrant before they could open the car door to seize it. In State v. Spietz, 531 P.2d 521 (Alaska 1975), we held that police officers were not authorized to enter a house and remove some marijuana plants which they had observed through an open doorway. Plain view gave the officers probable cause to obtain a warrant to search the house, but did not by itself authorize an entry to seize the evidence.
Spietz, however, relies heavily on the fact that the evidence seized was the product of a warrantless entry into a person's home.
The home has traditionally been afforded special protection under the Fourth Amendment of the United States Constitution and under the Alaska Constitution. A door of the home represents a firm constitutional barrier whether or not it is open.... Plain view alone could not justify the warrantless entry through the doorway into the constitutionally protected area of the Spietz house.
531 P.2d at 525 (footnotes omitted).
Spietz also relied on the United States Supreme Court case of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 20, 22, 29 L.Ed.2d 564, reh. denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971), which also speaks in terms of premises in holding that plain view does not justify an intrusion and seizure.
Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.
403 U.S. at 468, 91 S.Ct. at 2039, 29 L.Ed.2d at 584 (emphasis added). 6
We have not applied Spietz or a similar rationale to automobiles stopped on highways, nor are we aware of any cases from other jurisdictions which have applied such a rule. One reason such a rule has not been applied is that, as we noted in Gray v. State, 596 P.2d 1154, 1157 (Alaska 1979), quoting United States v. Robinson, 533 F.2d 578, 584 (D.C.Cir.), cert. denied, 424 U.S. 956, 96 S.Ct. 1432, 47 L.Ed.2d 362 (1976), "In the case of a car on the street there is (a) lesser expectation of privacy than in a home." In Pope v. State, 478 P.2d 801, 805 (Alaska 1970), reh. denied, 480 P.2d 697 (Alaska 1971), a police officer saw a gun lying on the front seat of the defendant's car and seized it. We decided the question on the ground that the gun could be seized because it was in plain view. Although this case arose prior to our decision in Spietz, we see no reason to disturb its holding today.
Moreover, even if we were convinced that Spietz was applicable to automobiles and that items in plain view within a car's...
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People v. Long
...State v. Gilchrist, Minn., 299 N.W.2d 913 (1980); State v. Brown, 160 N.J.Super. 227, 389 A.2d 507 (1978), see also Uptegraft v. State, 621 P.2d 5 (Alaska 1980); Williams v. State, 19 Md.App. 204, 310 A.2d 593 In contrast to the cases cited, the defendant in this case had an opportunity to ......