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Billie Rae Deemer v. State of Alaska

December 23, 2010

BILLIE RAE DEEMER, APPELLANT,
v.
STATE OF ALASKA, APPELLEE.



Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge. Trial Court No. 3PA-05-3616 Cr

The opinion of the court was delivered by: Mannheimer, Judge.

NOTICE

The text of this opinion can be corrected before the opinion is published in the Pacific Reporter. Readers are encouraged to bring typographical or other formal errors to the attention of the Clerk of the Appellate Courts: 303 K Street, Anchorage, Alaska 99501 Fax: (907) 264-0878 E-mail: corrections at appellate.courts.state.ak.us

Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.

OPINION

Billie Rae Deemer was stopped by a state trooper for a traffic violation (failing to signal a turn). When the trooper asked Deemer to identify herself, she lied about her identity. A short time later, another trooper arrived on the scene who was acquainted with Deemer. The troopers then ran Deemer's name through their computer; this check revealed that there was a warrant for Deemer's arrest for failing to appear in a criminal case. Deemer was arrested, and the troopers searched her car. This search revealed a handgun and cocaine.

Based on these events, Deemer was convicted of fourth-degree misconduct involving a controlled substance (possession of cocaine), second-degree weapons misconduct (possession of a firearm in furtherance of a drug felony), third-degree weapons misconduct (possession of a concealable firearm by a felon), and giving false information to a police officer.

On appeal, Deemer asserts that the search of her car was unlawful.

In our previous decision in this case, Deemer v. State, Alaska App. Memorandum Opinion No. 5467 (April 8, 2009), 2009 WL 962822, we upheld the search of the car based on Alaska precedent governing searches of a motor vehicle pursuant to an arrest. Under that precedent, the police were authorized to conduct a search for both weapons and evidence within the area of the passenger compartment that was within Deemer's reach at the time of the stop -- even though Deemer had already been secured in a trooper patrol car before the search began. *fn1

But two weeks after we issued this decision, the United States Supreme Court issued its decision in Arizona v. Gant, __ U.S. __, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). In Gant, the Supreme Court altered federal search and seizure law relating to the search of a motor vehicle pursuant to an arrest: the Court held that the police can search the passenger compartment of the vehicle for weapons only if the search is conducted at a time "when the arrestee is unsecured and within reaching distance of the passenger compartment". 129 S.Ct. at 1719. In other words, a warrantless search of a vehicle for weapons is permissible only if there is a realistic possibility that the arrestee might grab a weapon from the vehicle.

The Supreme Court did not place this same "proximity of the arrestee" limitation on searches for evidence. Rather, the Court stated that "[the] circumstances unique to the vehicle context justify a [warrantless] search [of a vehicle] incident to a lawful arrest when it is reasonable to believe [that] evidence relevant to the crime [on which the] arrest [is based] might be found in the vehicle." Ibid. However, the Court added that most traffic violations would not meet this standard. Ibid.

Based on the United States Supreme Court's decision in Gant, the Alaska Supreme Court directed us to reconsider Deemer's case. *fn2 We asked the parties to submit supplemental briefs discussing Gant and its application to the facts of Deemer's case. We have considered those briefs, and -- for the reasons explained here -- we again conclude that the search of Deemer's vehicle was lawful.

Because Deemer was sitting handcuffed in the back of a trooper patrol car at the time of the search, it is obvious that the search of Deemer's vehicle can not be justified as a search for weapons under the Fourth Amendment (as construed in Gant). This leaves the question of whether the search of Deemer's vehicle can be justified as a search for evidence.

However, before we reach that question, we must address a preliminary issue raised by the State in its supplemental brief: Is Deemer entitled to suppression of the evidence against her if we conclude that the search of her vehicle violated ...


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