The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge
RECOMMENDATION REGARDING MOTIONS TO SUPPRESS
Defendant Andrea Lavelle Vickers moves to suppress evidence seized from a vehicle he was driving on March 22, 2011. Docket 13. In a separate motion he moves to suppress evidence seized from his person and effects at the Anchorage Jail where he was taken following his arrest, which he asserts was invalid. Docket 14. The motions are opposed by the government. Docket 20. An evidentiary hearing was conducted on September 12, 2011 before the assigned magistrate judge. Upon due consideration of the evidence adduced and arguments of counsel, the magistrate judge recommends that the court adopt the findings of facts and conclusions of law as set forth below and that the motions to suppress be granted as to the inventory search and denied as to the search of Vickers person at the jail.
The motions to suppress were timely filed on August 12, 2011. In its opposition the government challenged the defendant's standing to move to suppress the evidence seized from the vehicle. In order to contest the legality of a search or seizure, the defendant must establish that he or she had a "legitimate expectation of privacy" in the place searched or in the property seized. Rakas v. Illinois, 439 U.S. 128, 143-44 (1978). The defendant must have exhibited an actual, subjective expectation of privacy and, more importantly, the expectation must be one that society is prepared to accept as reasonable and therefore legitimate. Smith v. Maryland, 442 U.S. 735 (1979); United States v. Pollock, 726 F.2d 1456, 1465 (9th Cir.1984). Vickers has the burden of establishing that, under the totality of the circumstances, the search or seizure violated his legitimate expectation of privacy in a particular place. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980).
The evidence establishes the defendant's right to assert the standing. Vickers has shown a legitimate basis for possessing the vehicle, namely permission from the vehicle owner, to support his standing and reasonable expectation of privacy in the vehicle. United States v. Perez, 689 F.2d 1336, 1338 (9th Cir.1982) (defendants had a legitimate expectation of privacy in a truck they did not own); United States v. Portillo, 633 F.2d 1313, 1317 (9th Cir.1980) (defendant had a legitimate expectation of privacy in a car he did not own because he was in possession of the car with the permission of the owner and had a key to it, thus having the requisite level of control over the car), cert. denied, 450 U.S. 1043 (1981). United States v. Garcia, 897 F.2d 1413, 1417-18 (7th Cir. 1990) (driver using vehicle with permission of absent owner has reasonable expectation of privacy therein); United States v. Rubio-Rivera, 917 F.2d 1271, 1275 (10th Cir. 1990) (permission from owner to use vehicle supports privacy expectation therein).
United States v. Padilla, 111 F.3d 685, 687 (9th Cir. 1997), relied upon by the government prior to the evidentiary hearing, is distinguishable on its facts. Padilla was not driving the vehicle nor did he own it when it was stopped. The issue was whether a bailment relationship between defendants and the owner of the car whom the defendants hired to transport cocaine conferred on the defendants a possessory interest in the car protected from unreasonable search and seizure.
After the Ninth Circuit Court of Appeals found that the Padillas had standing to contest the search, the case was remanded by the U.S. Supreme Court for determination of whether the Padillas had a property interest that was interfered with by the stop of the car, or a reasonable expectation of privacy that was invaded by the search. The Ninth Circuit affirmed the district court's holding that the defendants lacked standing.
On at March 22, 2011, at about 1:30 AM Anchorage Police Officer Troy Clark was proceeding westbound on DeBarr approaching the intersection of Bragaw when he observed a Mercury Mountaineer proceeding with one headlight working. It was dark outside. Officer Clark turned his vehicle around and followed the Mercury Mountaineer. While doing so he notice that the tail lights of vehicle were not turned on.
The officer activated his overhead lights in his marked vehicle and followed the Mercury about 4 to 6 blocks before it pulled over. Officer Clark observed the Mercury swerving and the turn signal turning on and off several times before the driver pulled over. He also observed the vehicle drift over to a parking lane on the side of the road and come back into the traffic lane while turning the turn signal off and on. It appeared to the officer that the driver was preoccupied.
Officer Clark had no idea who was driving the vehicle until it actually stopped. He asked the driver, who was alone, for his driver's license, his insurance, and his registration. The driver was Andrea Vickers who was known to the officer. After producing his driver's license Vickers provided a registration indicating that the car belonged to Jennifer Granvold. Vickers had borrowed the vehicle from Granvold. She gave him the keys to the vehicle and he had driven the vehicle on prior occasions.
Vickers was unable to provide the officer with an insurance card. At some point, Vickers indicated to the officer that he was talking to the owner of the vehicle on the phone. Vickers told Officer Clark that the owner said that the car was insured through Geico. The officer went back to the patrol car and called the Geico Company on an 800 number to see if they had any record of insurance for a vehicle with that VIN number or under the name of Granvold or Vickers. Geico had no record of anybody being insured for that vehicle.
As soon as Officer Clark saw that it was Andrea Vickers driving the vehicle he called for backup. He knew that Vickers had been involved in weapons crimes in the past and had safety concerns. Once he received the information from Geico about the absence of insurance Officer Clark decided to arrest Vickers for a violation of AMC 9.28.030A.*fn1
Anchorage Police Officer Michael Wisel arrived at the scene at about 1:35 AM to assist Officer Clark with the traffic stop. At the time of his arrival Officer Clark was verifying whether Vickers had insurance on the vehicle. Officer Wisel also had safety concerns about Vickers based on prior experience in which Vickers was a victim in a reported drive-by shooting.
After Officer Clark decided to arrest Vickers for driving without insurance he and Officer Wisel walked up to the Mercury and had Vickers get out of the vehicle. Officer Clark placed Vickers in handcuffs, did a pat-down search and took him to his police vehicle. The pat-down search disclosed soap but nothing that concerned the officer.*fn2 Officer Clark then started the paperwork for the charge of driving without insurance in violation of the Municipal Code. Neither officer asked Vickers for permission to search the vehicle.
Officer Wisel began an inventory search and quickly came back and informed Officer Clark that he had found a gun in the car. Officer Clark had just run Vickers criminal history and knew that he was a felon and not allowed to have a gun. Officer Clark then decided to charge Vickers with being a felon in possession of a firearm in violation of Alaska State law. He knew that the State's attorney's office would want to handle the entire case so he decided to charge Vickers with driving without insurance under Alaska State law rather than the Municipal Code.
Officer Wisel had conducted many inventory searches in the past. He was a field training officer and had instructed other officers about the police policy for inventory searches. He was aware that the inventory policy stated that he could only look for items in plain view. He testified that typically his inventory searches of vehicles were for high value items, that if there was a coat he would lift the coat and also look underneath the seats where people might stash valuables to conceal them.
On cross-examination Officer Wisel was asked about his standard policy in moving things during an inventory search. He testified that he would not open up a gym bag, but if it were already open he would look inside. He stated that he would probably look inside a purse to see if there was a gun if he could do so without manipulating it.
He knew that one of the reasons for an inventory search was to protect the police against liability claims. When asked about looking for valuable items in the vehicle during an inventory search he added "and for safety reasons . . ." explaining that an officer conducting an inventory search needs to document or remove firearms, propane bottles, and other such items for safety concerns particularly because impound yards are not totally secure. Officer Wisel testified that he usually looks in a center console or glove box if it is unlocked.
When Officer Wisel arrived at Vickers' vehicle the driver's door was open. He stepped inside and saw a black bandana between the driver's seat and the center console. A large part of the bandana was folded over towards the console. It looked to the officer that something was being concealed under the bandana although he could not see what it was until after he moved the bandana. Officer Wisel never testified that he thought the bandana was concealing a firearm. He merely said it could have been something of value.
Because of the location of the bandana next to the seat belt buckle anyone fastening the driver's seatbelt would have been aware that there was an object under the bandana. Officer Wisel pulled on the corner of the bandana and saw what appeared to be the butt of a gun. He then stopped his search and notified Officer Clark that there was a weapon in the vehicle.
Officer Wisel returned to his vehicle, retrieved a camera, and took pictures of the bandana before he removed the pistol. Officer Wisel admitted that he could not see the pistol until he moved the bandana. ...