The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge
RECOMMENDATION REGARDING MOTION TO
Defendant Lucas Charles Greenwood, moves for an order suppressing evidence seized as a result of a warrantless search of his automobile on September 24, 2009 and the fruits of that search. Docket 16. The government filed an opposition to the motion. Docket 24. An evidentiary hearing on the motion was conducted on November 10, and December 2, 2010. Upon due consideration of the evidence adduced and arguments of counsel the magistrate judge recommends that the court adopt findings of fact and conclusions of law as set forth below and that the Motion to Suppress be DENIED.
The defendant argues that the government has not met its burden of showing that the officers conducted a reasonable search constituting an exception to the warrant requirement when the rifle and ammo were found and seized. He argues that the warrant exception of an inventory search was merely an afterthought to what actually was only a search incident to arrest. The defendant argues that Trooper Peltier was not truthful in his testimony that he observed the butt of the rifle through the window because Trooper Chambers testified that he could not see anything of significance when he walked around Greenwood's Blazer. The defense is critical of the inventory search because valuable items such as a camera and computer were still left in the vehicle and the inventory search was not conducted in strict compliance with the Trooper's Procedural Manual. The government argues that the seizure of the gun and ammo were valid under three separate theories, namely plain view, incident to arrest, and inventory search.
On September 24, 2009 between midnight and 1:00 AM, Richard Chambers, an Alaska State Trooper assigned to the Mat-Su precinct as a patrol officer received information that a citizen had complained about a maroon colored Chevy Blazer being driven recklessly at a high rate of speed. Trooper Chambers observed the vehicle and turned around to follow it. The blazer was turning left on Knik Goose Bay Road on the Palmer Wasilla Highway. The officer's vehicle was equipped with a device which video recorded his chase of the vehicle. The trooper observed the driver's erratic driving at an excessive rate of speed. When the officer's vehicle reached 99 miles per hour he activated his police lights to pull the vehicle over.
Trooper Chambers approached the vehicle and the driver seemed very lethargic and inattentive to the officer's questions. There were no passengers in the vehicle. The driver later identified as Lucas Greenwood brought his hands below the doorway so it was difficult for the officer to see them. When Trooper Chambers took a quick walk around the Blazer he did not see anything of particular note worthy. At the time he knew that another officer would conduct any inventory search.
For officer safety he asked Greenwood to step out of the vehicle when Greenwood declined to answer the trooper's questions or produce documentation to the vehicle. He then proceeded to ask him standard questions relating to driving under the influence of alcohol. He asked Greenwood if he had any guns or knives in the vehicle and Greenwood said "No." The officer noticed the defendant's blood shot and watery eyes, slurred speech, sluggish movements and an odor of alcohol about his person. Trooper Chambers decided to conduct a field sobriety test. Greenwood refused to take the test. Greenwood also declined to provide a sample of his breath for a breathalyzer test.
After Greenwood stepped out of the vehicle the officer conducted a pat-down search for safety. During the pat-down search the trooper felt hard objects but he did not remove them from Greenwood's pockets because he did not consider the objects to be a gun or knife. He patted Greenwood's waist and pockets. At this time Greenwood was not under arrest. He placed Greenwood in the passenger front side of the police vehicle while he considered whether to charge Greenwood with reckless driving or impaired driving. The officer allowed Greenwood to make a telephone call on his own cell phone.
Greenwood was arrested by Trooper Chambers for driving while intoxicated, driving with revoked license and reckless driving. As incident to the arrest the trooper searched the pockets of Greenwood. This search produced a scale with an iPhone cover and a pipe containing a leafy substance in the bowl giving off the scent of burnt marijuana from the pipe. The scales were disguised as an iPhone. The presence of the scales indicated to the trooper the possibility of distribution of drugs. After listening to the statements of Greenwood during his cell phone conversation the officer concluded that Greenwood must have been on probation or parole and was driving in violation of his conditions. Greenwood was then placed in the rear of the police vehicle. The trooper transported Greenwood to the Mat-Su Pretrial Facility.
Other officers had arrived and conducted an inventory search of the defendant's vehicle which they intended to impound. The impounded vehicle was towed to the Mat-Su towing and recovery impound yard in Palmer, Alaska, a secured police impoundment lot. Greenwood's permission for the inventory search was not sought. Greenwood was not granted the opportunity to choose whether to permit or refuse to permit the inventory search.
While the defendant was being processed at the Pretrial Facility, Trooper Chambers was informed by another officer that officers had found a loaded AK-47 Assault Rifle inside the vehicle during the inventory of the vehicle for impoundment. Reference to this assault rifle was made in Trooper Chambers' affidavit when he applied for a search warrant for the vehicle on October 12, 2009. A search warrant was issued for the vehicle by State Judge Wolfe and the warrant was executed on October 13, 2009. This search revealed a glass multi-colored pipe that smelled strongly of burnt marijuana.
In the first page of Trooper Chambers' police report it states that the rifle was within the reach of the driver. Under the synopsis section of the report it refers to the assault rifle as being found "incident to arrest." In the details of his report Trooper Chambers refers to finding the rifle during an "inventory search". He testified that because he did not personally find the rifle, he did not state in his report that it was seen in plain view. When Trooper Chambers executed the search warrant for the vehicle he photographed items found including a small Jazz brand camera and a laptop computer.
The Assist by Troopers Peltier and Banc
On September 24, 2009, Alaska State Trooper Mike Peltier was a field training officer and patrol supervisor. Independently of Trooper Chambers he responded to the scene in response to a call from dispatch. He had with him Trooper Banc, a new recruit. When Trooper Peltier arrived at the scene Greenwood's vehicle had been stopped. Both Trooper Chambers and Greenwood were out of their vehicles. Greenwood appear to him uncooperative and displayed a demeanor beyond that observed in the average traffic stop.
Trooper Peltier walked around Greenwood's vehicle and observed through a window the butt of a rifle wedged between clothes and tools. He asked Trooper Banc to remove the gun from of the vehicle and assist him in an inventory search. He located four 30 round magazines in the pile of "clothes and stuff" behind the front passenger ...