FREDERICK A. PITKA, Appellant,
STATE OF ALASKA, Appellee.
from the Superior Court, Fourth Judicial District, Fairbanks,
Michael A. MacDonald, Judge. Trial Court No. 4FA-11-232 CR
Douglas O. Moody, Deputy Public Defender, and Quinlan
Steiner, Public Defender, Anchorage, for the Appellant.
Black, Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Michael C. Geraghty,
Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,
District Court Judge. [*]
A. Pitka was arrested for driving under the influence.
Following Pitka's arrest, officers at the scene searched
the ashtray of his car (without a warrant) and discovered a
bindle of cocaine. Based on the discovery of this cocaine,
Pitka was indicted for, and later convicted of, fourth-degree
controlled substance misconduct. (He was also convicted of
driving under the influence.)
appeal, Pitka claims that the search of the car ashtray was
unlawful, that the bindle of cocaine found in the ashtray
should have been suppressed, and that his drug conviction
should therefore be reversed. For the reasons explained in
this opinion, we agree with Pitka that the search of his car
ashtray was unlawful, and we therefore reverse his drug
January 2011, a Fairbanks police officer observed a car
stopped in the middle of a street, parked at an angle so that
it blocked both lanes of traffic. The passenger door of the
car was open, and there was a man standing in the street who
was leaning into the car through the open passenger door.
police officer believed that he was observing a drug
transaction, so he activated his overhead lights. When the
officer activated his lights, the pedestrian quickly put his
hands into his coat pockets and fled (jumping over three
fences to make his escape). The car also drove away from the
scene, but other officers soon stopped the car.
driver of the car was Frederick Pitka. During the police
contact with Pitka, officers smelled a strong odor of alcohol
on Pitka's breath, and they observed that his eyes were
bloodshot and watery, and that he was unstable on his feet.
Pitka performed poorly on various field sobriety tests, and
Pitka admitted that it probably was not safe for him to be
driving. After a portable breath test showed that Pitka had a
blood alcohol level of .163 percent, Pitka was arrested for
driving under the influence.
passenger told the police that she and Pitka had purchased
and smoked marijuana earlier that evening. In addition, Pitka
was behaving erratically: he exhibited mood swings ranging
from calm co-operation to agitation. This led the police to
believe that Pitka was not only under the influence of
alcohol, but also under the influence of some other
police had a drug-sniffing dog, and they directed the dog to
walk around Pitka's car. The dog alerted to the presence
of drugs. After the dog alerted, the police searched the
interior of Pitka's car. During this search, the police
opened the car's ashtray and found a bindle of cocaine.
Pitka admitted the cocaine was his.
was charged with fourth-degree controlled substance
misconduct and driving under the influence of alcohol and/or
controlled substances. 
Pitka was charged with these crimes, he filed a motion to
suppress the cocaine found in his vehicle's ashtray (as
well as the statements he made about this cocaine to the
officers at the scene). The superior court upheld the search
of the ashtray under the theory that the police had probable
cause to arrest Pitka for driving under the influence of
controlled substances, and that the search of the ashtray was
a valid search incident to Pitka's arrest.
the superior court denied his suppression motion, Pitka
consented to a bench trial, and the court found him guilty.
Pitka now appeals.
we conclude that the search of the ashtray was illegal under
just explained, the superior court upheld the search of the
ashtray under the theory that it was a valid search incident
to arrest. Pitka challenges the superior court's ruling
on two bases.
first challenge to the superior court's ruling is based
on the Fourth Amendment to the United States Constitution.
Pitka argues that the police lacked probable cause to arrest
him for any drug-related crime, and that therefore the police
had no authority to conduct any search of his car.
See Arizona v. Gant, where the United States Supreme
Court held that, under the Fourth Amendment, the search of
the interior of a vehicle incident to the driver's arrest
is lawful only (1) to prevent an unsecured arrestee from
gaining access to a weapon or to destructible evidence, or
(2) when the police have reason to believe that the vehicle
might contain evidence relevant to the crime for which the
driver is being arrested. 
reject this argument because we conclude that, under the
circumstances, the police did have probable cause to
arrest Pitka for a drug offense.
the police first observed Pitka's car, it was illegally
parked across two lanes of traffic. A man was standing in the
street next to the car, and he was apparently conducting a
drug transaction with the occupants of the vehicle. When the
officer activated his patrol car's overhead lights, this
man fled, and the car drove away.
minutes later, when other officers stopped Pitka's car,
Pitka was behaving erratically - exhibiting mood swings
which, according to the testimony, suggested that Pitka was
under the influence of some substance besides alcohol. In
addition, Pitka's passenger told the police that she and
Pitka had purchased and smoked marijuana earlier that
evening. Finally, a drug-detecting police dog alerted to the
presence of drugs in Pitka's car.
facts, viewed objectively, gave the police probable cause to
believe that Pitka was driving under the influence of both
alcohol and a controlled substance - as well as reason to
believe that drugs might be found in Pitka's vehicle. We
therefore conclude that the police did not violate the Fourth
Amendment when they searched the interior of the car
(including the ashtray) for evidence of a drug offense.
second challenge to the superior court's ruling is based
on the search and seizure provision of the Alaska
Constitution (Article I, Section 14).
Alaska Supreme Court has interpreted our state constitution
to impose greater restrictions on police searches of vehicles
incident to arrest. Under Alaska law, when the police arrest
the driver of a vehicle and no exigent circumstances exist -
i.e., when there is no immediate threat to officer
safety, and no immediate risk that evidence will be destroyed
or removed from the vehicle - the police may not search
closed containers within the vehicle unless (1) the container
was within the arrestee's immediate control at the time
of the arrest, and (2) the container is large enough
to contain evidence of the crime for which the person is
being arrested, and (3) the container is of a type
"immediately associated with the person" of the
arrestee.  Unless all three of these conditions are
met, the police must obtain a warrant to search the closed
Pitka's case, the superior court found that the first two
conditions were met, and the testimony presented to the
superior court supports these findings. The ashtray was
within Pitka's immediate control at the time of his
arrest: it was located next to the steering wheel, and it was
readily accessible from the driver's seat. And the
ashtray was large enough to contain drugs or other evidence
of drug possession.
superior court failed to consider the third requirement
imposed by Alaska law: whether the car ashtray was the type
of container "immediately associated with [Pitka's]
third requirement was first applied by the Alaska Supreme
Court in Hinkel v. Anchorage.  In
Hinkel, the supreme court held that, incident to an
arrest, the police could search an arrestee's purse
because purses are often carried on the person, and because
purses serve the same function as pockets.  The court
reasoned that the search of this type of container did not
involve "any greater reduction in the arrestee's
expectations of privacy than that caused by the arrest
recently, in Crawford v. State,  the supreme court
held that the center console of a vehicle is a container that
is "immediately associated with the person" of the
driver because the center console normally serves the same
purpose as a pocket: it is "commonly used to hold money,
a cellular telephone, and personal hygiene
Pitka's case, the State contends that the reasoning of
Crawford applies equally to an ashtray that is built
into a vehicle, because such ashtrays are capable of holding
small personal items.
we recently explained in our unpublished opinion in
Jarnig v. State,  the fact that a container inside a
vehicle is capable of holding personal items does
not answer the question of whether that container is
"immediately associated with the person" of the
driver. The police are not allowed to simply assume that the
container is "immediately associated with the
person" of the arrestee on the basis that it
could hold small personal items. Rather, before the
police search the container without a warrant, the police
must have some articulable basis for believing that the
container is generally used, or is actually being
used in that particular instance, to store items
that would normally be kept in a pocket or a purse.
other rule would subject virtually every container in a
vehicle to warrantless searches incident to the driver's
arrest, without the State having to prove that there were
exigent circumstances to justify these warrantless searches.
We do not think our supreme court intended this result when
the court decided Crawford.
Pitka's case, the container at issue is a built-in
ashtray. The intended function of an ashtray is to serve as
the repository for cigarette ashes and butts. The State
presented no evidence that vehicle ashtrays are generally
used as containers for small personal items. Nor did the
police have any case-specific indication (until they
performed the warrantless search) that Pitka was using his
vehicle ashtray for this alternative purpose.
State argues that it was Pitka's burden to show that
ashtrays in vehicles are not commonly used to store
personal items - and that Pitka failed to carry that burden
in the superior court. But the State's argument
contravenes the well-settled principle that the