 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Kluesner v. State8/25/1999
MEMORANDUM OPINION AND JUDGMENT
[No. 4103 - August 25, 1999]
Appeal from the Superior Court, Third Judicial District, Anchorage, Eric T. Sanders, Judge.
Anchorage Police Officer Douglas Fifer stopped Michael Kluesner for a traffic violation. After contacting Kluesner, Officer Fifer decided that Kluesner was intoxicated and arrested him for driving while intoxicated (DWI). After Officer Fifer arrested Kluesner, he searched Kluesner for weapons and found a crack pipe in Kluesner's coat pocket.
Kluesner argues that Officer Fifer's search exceeded the proper scope of a search incident to arrest. We disagree and affirm.
Facts and proceedings
On November 19, 1996, Officer Fifer saw a car leave the parking lot of the Crazy Horse nightclub on Gambell Street, turn the wrong way onto Gambell, a one-way street, and then turn westbound onto 16th Avenue. Based on this traffic violation, Officer Fifer stopped the car. Kluesner was the driver.
Kluesner told Officer Fifer that he recently drank about three or four beers. Officer Fifer observed that Kluesner had bloodshot eyes and a strong odor of alcohol on his breath. At Officer Fifer's request, Kluesner performed field sobriety tests. Officer Fifer thought that Kluesner was "under the influence" and decided to arrest Kluesner for DWI.
Officer Fifer handcuffed Kluesner and searched him for weapons. While searching for weapons, Officer Fifer felt what he suspected was a crack pipe in Kluesner's jacket pocket. Fifer thought that if this object was a crack pipe, it could be evidence of DWI. Fifer reached into Kluesner's pocket and removed the object - a crack pipe.
In addition to the charge of DWI, the grand jury indicted Kluesner on a single count of misconduct involving a controlled substance in the fourth degree (possession of cocaine) because the crack pipe found by Officer Fifer contained some residue of cocaine. Kluesner moved to suppress the crack pipe arguing that Officer Fifer's search inside his jacket pocket was illegal.
Officer Fifer testified at an evidentiary hearing on the motion to suppress before Superior Court Judge Eric T. Sanders. After hearing Officer Fifer's testimony, Judge Sanders denied Kluesner's motion. Kluesner moved to reconsider. Again, Judge Sanders declined to suppress the crack pipe. Kluesner was convicted at a court trial and renews his argument in support of suppressing the crack pipe.
Discussion
A police officer may search a defendant incident to arrest if: (1) the arrest is valid, (2) the search is roughly contemporaneous with the arrest, (3) the arrest is not a pretext for a warrantless search, and (4) the arrest is for a crime, evidence of which could be concealed on a person or the search is intended to find a weapon on the defendant. Kluesner does not contest the first three factors. His argument centers on the fourth factor. Kluesner claims that when Officer Fifer arrested him for DWI, Fifer did not suspect that Kluesner was under the influence of anything other than alcohol. Because Fifer did not suspect intoxication due to drugs at the moment Kluesner was arrested, Kluesner argues that a search for drug-related evidence was unjustified. But Officer Fifer was not searching for potential intoxicants when he felt the object in Kluesner's pocket; Officer Fifer was performing a post-arrest search for weapons. As Officer Fifer searched in the area of Kluesner's jacket pocket - an obvious place for carrying weapons - he felt an object. Based on his police training and experience, Officer Fifer was confident that the object he felt was a crack pipe. He also thought that a crack p
Page 1 2 Alaska DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|