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Ambrose v. State

Court of Appeals of Alaska

December 18, 2009

Peter F. AMBROSE, Appellant,
v.
STATE of Alaska, Appellee.

Thomas I. Temple, Law Offices of William R. Satterberg, Jr., Fairbanks, for the Appellant.

Eric A. Ringsmuth, 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 BOLGER, Judges.

OPINION

BOLGER, Judge.

Peter F. Ambrose argues that he was subject to an unreasonable search when a trooper removed and opened a bindle of cocaine from Ambrose's shirt pocket following his arrest. We conclude that the trooper was authorized to remove the object from Ambrose's

Page 365

pocket because, based on its size and feel, the trooper reasonably believed that it could contain a razor blade. After removing the object from Ambrose's pocket, the trooper was authorized to open it because he immediately recognized that it was a bindle-that is, a single-purpose container used to carry illegal drugs.

Background

On May 25, 2006, at about 3:50 p.m., Alaska State Trooper Nicholas Zito observed Ambrose driving a vehicle without a rear bumper. Trooper Zito initiated a traffic stop and then conducted an APSIN check, which revealed that Ambrose was a convicted sex offender who was not in compliance with his registration requirements. Trooper Zito arrested Ambrose, placed him in handcuffs, and then conducted a search incident to the arrest.

During the pat-down search, Trooper Zito felt a small, rectangular object in Ambrose's left front shirt pocket. Removing the object, Zito discovered a rectangular folded piece of newspaper. Zito opened the paper, revealing a white powdery substance. Zito asked Ambrose if the powder was methamphetamine and Ambrose replied that it was cocaine, which the trooper confirmed through a field test.

Ambrose was charged with fourth-degree misconduct involving a controlled substance [1] and failure to register as a sex offender.[2] Ambrose moved to suppress the evidence of the cocaine, arguing that Trooper Zito's warrantless search exceeded the permissible bounds of a search incident to arrest. At the hearing on the motion, Zito testified that he thought that the object he felt through Ambrose's shirt pocket could be something that Ambrose could use to harm him or that it could be some type of drug paraphernalia. Zito testified that the object could have contained a razor blade.

Superior Court Judge Douglas L. Blankenship pointed out that Ambrose was handcuffed at the time of the search, and asked Trooper Zito why he was concerned about Ambrose's ability to use a weapon. Zito responded that he feared that Ambrose might access the weapon inside the correctional center or the patrol car. Zito also testified that after he removed the object from Ambrose's pocket he immediately recognized that the object was a bindle, a package commonly used to carry illegal substances.

The judge denied Ambrose's motion to suppress, ruling that Trooper Zito's removal of the package from Ambrose's pocket was permissible based upon the trooper's reasonable belief that the package might contain a weapon. Judge Blankenship also concluded that Zito was justified in opening the package, based on this court's opinion in Dunn v. State. [3]

The charge of failing to register was dismissed pursuant to a pretrial ruling, and Ambrose was convicted of misconduct involving a controlled substance ...


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