The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge
INITIAL RECOMMENDATION REGARDING MOTION TO SUPPRESS (Docket No. 19)
Defendant Trista Fox moves the court to suppress all the evidence seized December 4, 2009 pursuant to a traffic stop in Fairbanks, Alaska. Docket 19. The government filed an opposition at Docket 23. An evidentiary hearing on the motion was conducted by the magistrate judge. Officers Ron Dupee and Doug Welborn testified for the government and Trista Fox testified on her behalf. The defendant argues that the officers lacked articulable suspicion to hold her for a prolonged period of time and she gave no consent for a warrantless search of her person, coat or her purse.
On December 4, 2009, about 1:40 PM, Fairbanks Police Officer Ron Dupee assigned to the traffic unit made a traffic stop of a white Cadillac Escalade owned by defendant Trista Fox and being driven by John Fox. Officer Dupee's attention was drawn to the vehicle when he observed that it had dark tinted windows on the front driver and passenger side. He knew that in the State of Alaska any after-marketing tinting on the front driver or passenger side could be illegal. He also observed that the registration for the rear vehicle plate was showing expired. He conducted a search of the vehicle in APSIN (Alaska Public Safety Information Network) and confirmed that the plates were actually expired. He drove behind the vehicle and conducted a traffic stop as the vehicle turned into the Fred Meyer parking lot.
Officer Dupee collected the driver's license, vehicle registration and an expired insurance card, as well as, the driver's license for Ms. Fox because she stated that she was the owner of the vehicle. He noted that her last name was Robinson. Officer Dupee asked the driver and passenger about their relationship. They claimed that they were only friends. Trista's driver's license came back in APSIN as Trista Fox not Trista Robinson.
Mr. Fox's drivers license stated that he was from Anchorage although the vehicle was registered in Fairbanks to Ms. Robinson, who stated she was just a friend of Mr. Fox. The officer ran the identifications of the occupants of the Cadillac and learned that Mr. Fox was on federal probation for misconduct involving a controlled substance. Following standard police procedure he attempted to contact the probation officer through his dispatch. He learned that the probation officer was actually in Fairbanks to attend a court hearing.
About 30 minutes into the stop Officer Dupee was advised that the probation officer was actually on her way to the scene. While waiting for instructions from the U.S. Probation Officer he proceeded to issue two citations to Mr. Fox. One was for expired registration on the vehicle and the other for not having proof of insurance. He asked Mr. Fox to step out of the vehicle and he explained the citations to him and how he could go about having the correctable ticket for no insurance voided by bringing proof down to the police department or the city attorney's office.
Mr. Fox then returned to the vehicle. As he was getting into the vehicle Officer Rupe who had arrived at the scene informed Officer Dupee that the probation officer wanted the vehicle searched with a canine unit which was on its way. From the time that Officer Dupee received word that the probation officer was taking some action and actually arrived on the scene, about 15 minutes elapsed.
Officer Rupe and Officer Doug Welborn asked Ms. Fox for consent to search the vehicle and she consented. Welborn served as a back-up officer at the scene. When Officers Rupe and Welborn approached Ms. Fox on the passenger side she displayed what Officer Welborn characterized as very paranoid behavior. She appeared fidgety and frequently looked around a lot. At this time Mr. Fox had been placed in a patrol car.
After the probation officer and canine unit arrived the probation officer talked to Mr. Fox in the back of a patrol car. Sgt. Johnson walked canine Marley around the exterior of the vehicle for a dog sniff.
Officer Dupee explained in his testimony that there were tactical and safety reasons for maintaining control of the passenger during the police stop even though his focus was on the driver. The driver was a probationer who had repeatedly been involved in drug dealings. The officer knew that a passenger could be implicated in criminal activity on the part of the driver or be motivated to assist him in some way.
Canine Marley gave a positive alert on the passenger door where Ms. Fox was seated. At that point Officer Dupee seized the entire vehicle and its contents pending application for a search warrant. Officer Dupee advised Ms. Fox that he was seizing the vehicle pending a search warrant. Ms. Fox was asked to exit the vehicle. She had her coat in her hand and Officer Dupee told her that the coat needed to remain in the vehicle with the contents of the vehicle unless it was searched prior to her taking it. The thick winter coat was a Northface jacket. It was about 10 degrees outside although the engine of the Cadillac had been running keeping it warm inside the vehicle. In response to the officer's statement Ms. Fox indicated that she wanted to take the coat with her and gave the coat to Officer Dupee allowing him to search it. Both Officers Dupee and Welborn testified that Ms. Fox requested to take the jacket with her. The search of the vehicle at the scene lasted about ten minutes.
The officer proceeded to search the coat and found six and one half suspected ecstacy tablets and about $855 dollars in cash. Ms. Fox was detained pending the tablets being tested for the presumptive presence of drugs. Once the tablets tested positive at the Fairbanks Police Department Ms. Fox was placed under arrest.
Trista Fox was not allowed to leave the scene of the traffic stop during this encounter nor did she ask to leave. While the officer held Trista's coat the federal probation officer patted her down.
I reject Trista Fox's testimony that her coat was searched without her consent. She testified that when the officer asked to "search her purse and her coat" she responded: "No, that's my right."*fn1 Under the facts the magistrate judge concludes that an officer did not ask to search her purse at the same time as requesting to search her coat. According to Officer Welborn if she had been wearing her coat when she was asked to step out she would have been subjected to a pat search immediately. When Trista Fox was asked for permission to search the purse she did say "no" and the purse was not searched until after the search warrant was issued. I reject Trista Fox's ...