Daygee v. State

1159 depends the nature of the crime charged. DAYGEE, Appellant, The officer instant case David testified that the reason he seized v. Alaska, Appellee. clothing for ev-

searched the was to search STATE of No. 1408. burglary.17 idence of the Q. Why you did do this? Supreme Court of Alaska. [Seize clothing]

search the 12, 1973. Oct. officer, being I

A. Because I— here

knew that a case Fairbanks Lemon, on being worked on Mr.

was burglary dwelling not in a and I fibers could have been

felt that clothing scene

left —on and I burglary and so

of the forth clothing.

seized the that a “likelihood” there was

Since arrest, wearing at his

clothing was Lemon alleged days after the

one and one-half of the contain evidence

burglary, would arrested, he was

crime for which testimony as to and the valid

search was discovered specks of insulation

admissible.18 and remanded for is case reversed opin-

proceedings not inconsistent

ion. made, that such warrantless searches the arrest was is clear crime for which if, permissible Nelson, be conducted F.2d see Hancock (murder) ; 1966) is reasonable cause (1st the extent there Golliher Cir. (8th necessary States, to effectuate Cir. is believe F.2d ; purposes.6 robbery) 1966) (bank Robinson v. United these U.S.App.D.C. F.2d being denied, purposes (1960), effect the arrest cert. (burglary) safety arresting (1960) of and to insure 5 L.Ed.2d 259 prevent others, Guido, as well as to F.2d ficer and States denied, (7th 1958), evidence or destruction concealment cert. Cir. (1958) (bank the commission the crime which L.Ed.2d for McCoy, robbery). A.L.R.3d arrest was 491 P.2d at 142. Annot. 19 made. also See added.) (Emphasis § McCoy recognized Cupp Murphy, 18. See dissent (1973) where a the sus- 36 L.Ed.2d 900 concealed on for evidence fingernails scraping pect’s person permissible. a detained accused’s arresting prior arrest, permissible cause to his but when It is also of for part upheld, arrest, ficer, to con due to a lawful for arrest existed highly nature the evidence the commis evanescent evidence duct a search sought. Similarly, specks the arrest has of insulation or sion offense provided made, trousers is a likelihood other similar evidence from Lemon’s there been likely clothing particular if the crime to vanish were promptly person seized. concealed arrestee. Friedman, Wagstaff,

Robert H. Anchorage, Rubinstein, Ravin & Wagstaff, appellant. Havelock, Gen., Juneau, Atty. E. John Atty., Buckalew, Jr., Dist. Seaborn J. Merriner, Atty., Trooper approached Asst. Dist. Mustang Charles M. Rowe Atty., car, Stephen Dunning, Dist. An- foot. G. Asst. When reached the he ob- chorage, appellee. served an quart bottle of beer on passenger front seat floor before the Ste- RABINOWITZ, J., Before C. CON- par- ven Staats. addition he smelled a NOR, ERWIN, BOOCHEVER, and FITZ- ticular burning odor which he as described GERALD, JJ. marijuana. The officer directed the beam of his OPINION flashlight on the of back seat car. the grocery There he saw ERWIN, bags, one two direct- Justice. ly car, on the floor of the other the the on appellant David March On in seat top cardboard On box. Anchorage by Daygee was indicted the plastic the one on the bag seat was a clear purpose Jury possession for the Grand containing a dark He asked both material. pounds sale and Daygee Mr. and Mr. Staats what the clear 4,000 of LSD. tablets bag They was. they both answered that trial, appellant jury After was found didn’t know and when he be- asked it guilty possession marijuana for the longed them, they replied, to either of sale, purpose re- but no verdict was “no”. He the asked them to hand him amphetamines.1 concerning turned bag up, clear picked and Mr. Staats it 4, 1970, approximately On March passing Daygee, it to who in turn handed Troop- at night, 10:00 o’clock Alaska State trooper. observing it to the After the dark proceeding er Rowe Tudor was east on closely through plastic bag, material Anchorage. passed Road in He a 1969 trooper was opinion bag of the Mustang stop near sign on Boniface marijuana. contained the intersection and of Boniface Tudor. At point the officer ordered two Trooper by suspicions aroused Rowe’s men out of the car and searched He them. angle parked he strange car and pipe found warm which smelled of mari- car in watched the his rear mirror view juana and contained the residue of burnt he continued Tudor between east on marijuana in Mr. Staats’ back trousers stepped half-mile and a mile. He then pocket. pocket The also pouch contained a suddenly his ef- on brakes to observe the marijuana. appellant. fect on According Rowe Mustang sped heading around the corner Another car soon arrived in re- sponse west on Tudor. He then turned around Officer Rowe’s radio call for as- pursued car, speeds and reaching subsequently sistance. Rowe informed mph up before men caught he with the both were under arrest Mustang vicinity placed Wright one the men in car Street. his Trooper stopped newly-arrived in Rowe stated that he other police vehicle. however, speeding; car for appellant’s he did not Rowe then returned vehicle car, clock the and at the his words time it because “inventoried” caught up car Mustang, going by with the it was impounded was about to be mph. speed private towing limit Trooper on Tudor is 50 service. re- Rowe mph changes mph moved grocery together the two bags, area appellant stopped, but in the box in which bags sit- one trooper’s ting, opinion, previously placed car from the car them his been exceeding speed own doing limit. As soon vehicle. In so he noticed sever- as he appellant’s on his red al small light, turned scales which were in the be- box pulled car side the grocery bag. over to the side of the road. He also noticed judicial count, 1. This takes as no court notice of the fact verdict was returned on this amphetamine. However, appeal. that LSD not an irrelevant to this OF wrapped THE BAG OF PLASTIC SEIZURE bricks an unknown substance gro- inside opaque paper which were MARIJUANA. placed cery All these items were bags. appellant’s stopping car After they re- patrol car where the trunk of the approached speeding, Rowe the car Officer finished the officer until the time mained flashlight into on foot. He then shone shift over the shift. When his the interior of the car where he observed next to the placed the floor items were plastic leafy bag clear which contained a preparatory to patrol sergeant desk of the with seeds in substance it. placing in the evidence locker. subsequently appellant demanded that hand opened subsequently packages bag. him the hold that the officer’s police personnel advice of one of the sighting bag and demand for the of mari danger that there the fire marshal juana illegal search and sei to the packages fire felt warm zure, bag plain as the was in the officer’s packages contained bricks The touch. implies pri view. A search an invasion of marijuana. vacy, prying a into that is which meant to be concealed. It no search to observe appeal is principal question The con- plain that which is in the of an offi view and seizure legality cerns the of the search appellant’s position of the contraband contained in cer is rightfully who in a to have incidents in There are two automobile. that view.3 That the view in this officer’s and seizure this case which call for search by case flashlight was aided a irrelevant. is analysis.2 stopping The first involves flashlight merely The beam illuminated plastic the vehicle seizure and of the clear that which would have been in the visible bag marijuana; second light day.4 Nor does the seizure concerns the officer’s seizure of the marijuana which the officer saw violate bricks, plastic marijuana bag containing the seizure restriction of the fourth scales, weighing paper bags several An evi amendment. officer seize from the back seat automobile. legitimately plain dence which is in his Each of these incidents will be discussed sight.5 necessary contra is turn. Commonwealth, said Childers v. 286 S.W. appeal 2. No issue was raised as this (Ky.1955) 369, 2d : 370-371 propriety packages opening The case at bar is not like one where the police station. opens officer a door on accused’s car or State, 3. As this court stated in v. 431 Weltz a a search raises shade his house without (Alaska 1967) 502, P.2d : 505 see what is inside. Here warrant implies prying A search into hidden wire from natural darkness concealed the places flashlight dispelled for that which is concealed and the screen view but object resorting has been hidden or searched for of darkness without the officer intentionally put way. While it flashlight out of the is use of a here a search. The ordinarily searching glasses has been said that comparable at sea to the use of field sight, generally a function held without and does not amount looking by which is prohibited mere at that the constitutional Lee, to view is not a “search”. guarantee. v. See also States United People v. 559, 563, 746, This definition was taken from L.Ed. 47 S.Ct. 71 729, West, Cal.App.2d 214, ; Chapman P.2d 1202, (1927) 144 300 v. United 1204 State, (1956); (9th 1965) ; P. 383, Klockenbrink v. 472 States, 733 Cir. 346 F.2d 387 (Alaska 1970) Coolidge ; v. New 461, 2d see Hanawahine, 958 443 50 Haw. State v. Hampshire, 466-467, Daniels, 91 (Hawaii 1968) ; State P.2d 149 (1971) ; Harris L.Ed.2d 583 S.E.2d S.C. 234, 236, States, 88 S.Ct. 5. Coolidge Hampshire, U.S. v. New ; (1968) Ker v. 19 L.Ed.2d 465-466, L.Ed.2d 582-583 91 S.Ct. 23, 42-43, California, U.S. (1 971) v. United Harris 10 L.Ed.2d 234, 236, upon Erickson In a case based facts similar (Alaska 1973). Kentucky Appeals present case the Court cently by it is most authorities because of the before positively identified band be officer, had decision of Carroll who extensive States8 The seized.6 marijuana, upholding theory testified under detecting searches training in that an emergency recognized the situation existed vir- that he smell bag tue of the mobile character of the burning and the substance vehicle. case, which he had seen Carroll the court held that the marijuana, looked like stop previously. highway thus cause to could a car on the had search it committed without a warrant believe misdemeanor was presence than the traffic event.7 cause to believe the car transporting therefore val contraband. The reason for seizure of item was exception re- id. search warrant quirement mobility was the of the automo- bile, THE SEIZURE THE impracticable OF TWO GRO- which makes it to obtain warrant, CERY AND THE CARD- BAGS since the car and its ille- BOARD gal juris- BOX. contents could be well out diction before the warrant could be served. After Daygee Officer Rowe arrested Staats removed them to the Carroll case the mobile vehicle vehicles, he called a wrecker to come immediately typi- cases which followed are the car. He then returned to the car and prohibition cal era.9 Under removed all passenger Act, valuables from the transporting contraband li- Volstead area police to his own for safe- quor vehicle awas misdemeanor. prior impoundment. keeping Among significant The next vehicle search case

the articles removed from the car were years later in Preston came almost 35 grocery bags two and a cardboard con- box 881, 364, States, 376 U.S. 84 S.Ct. taining pounds bricks offi- (1964). 11 L.Ed.2d There state wrapped postal rough paper, in several defendants, cers arrested the who were sit- plastic bag- or six scales five rolls automobile, ting parked vagrancy in a on a gies. charge. were taken to the The defendants validity The of automobile searches their station house and car was removed a without warrant was conceded until re- a it The de- garage where was searched. Hughes 584, upheld State, Husty. P.2d Nev. The and then arrested court 245, (1970). Carroll. search under in The ruled Scher that where there Court State, 1055, 7. Howes v. 1059-1060 probable cause to search contraband (Alaska 421, 1972) ; Miller v. moving liquor while the automobile is 1969). 425-426 road, right is not lost when search States, 132, parked v. United subsequently Carroll 267 U.S. in an the automobile is 280, (1925). by 69 L.Ed. 543 open private garage, observable the of- the outside. The officers ficers from Husty States, 694, v. United 282 U.S. garage and search the car there un- enter the 75 L.Ed. 629 Scher parked Brinegar, der Carroll. In officers States, 305 U.S. 59 S.Ct. line saw Brine- near the Missouri-Oklahoma (1938) Brinegar 83 L.Ed. 151 v. United by heavily- bootlegger, gar, drive in a a known 69 S.Ct. 93 L.Ed. stopped searched car. The officers and liquor. loaded Husty permitted and Scher cases of The the car and found 13 stationary is ar searches guably vehicles which Car- held the search reasonable under court longer permissible no after the recent dissenting opinion, roll. In Jack- a Justice Coolidge Hampshire, decision of v. New joined by son, Frankfurter and Mur- Justices 91 S.Ct. 29 L.Ed.2d 564 U.S. phy, wrote: p. Husty, pro In See infra. regard an I it as exten- I dissent because hibition officers had reliable information that already Case, Husty, bootlegger has sion of a had been the Carroll known who violations, enforcement officers been too much taken twice convicted of Prohibition Act authority stop liquor and search as blanket had his The officers found the car. suspicion. car, Husty returned, at waited until searched ears on liquor, S.Ct. at 1314. car which contained 18 eases of conspiring cess until a fendants later convicted of to the automobile search war- rant largely a was obtained. bank, to rob on evidence found the warrantless automobile search. Coolidge In recent decision of conviction, stating court reversed Hampshire, New not to the arrest the search (1971), court 29 L.Ed.2d 564 and place. since it at time occurred another again problem this and drew considered that, assuming also court stated great al- back somewhat from the latitude propriety the state's assertion lowed automobile searches Chambers. cause the car In arrested Coolidge, defendant it they reasonably believed in his murder. At the home brutal stolen, justified by the search was still they impounded same car which time exception search warrant Carroll days parked driveway and two requirement because the automobile this later where it took station case was in fact immobilized. Since was searched without warrant. at the police defendants under arrest Chambers, state, relying contended police custody station car was in and the police may make warrantless garage, danger no there was prob- have automobile whenever destroyed car or contained in the could be replied that able to do so. The court cause ju- car could removed did within not come the Car- situation risdiction. exception re- roll to the warrant exigency years quirement because: Maroney, Six later Chambers v. legal possible [B]y no stretch Preston, (1970), the court retrenched a case can be made imagination into it, distinguish while ex- purporting to practicable to secure “it is beyond orig- tended its the Carroll rule far . . . .” 403 U.S. Chambers, inal defendants rationale. 91 at 2036. S.Ct. robbing after were in their arrested vehicle The court noted that defendant since they being a gas were booked station. While police protection in jail, wife under house, the station their vehicle was town, premises and defendant’s another found therein searched and by policemen, the guarded were car them. Al- subsequently against used in a not constitutional sense. mobile though that even expressly Preston stated attempted distinguish court then Cham- search the probable cause to had only applied stating bers Chambers warrant once vehicle, obtain a where made an arrest was mobility exigent were circumstances of highway. distin- removed, the court in Chambers sel- practice, In rule has been Carroll there guished Preston situation of motor vehicles dom search utilized In cause to search. probable was no justified vehicle searches since most Chambers, upheld the later the court the driver under arrest of as incident theory the station house line of cases which the Harris-Rabinowitz10 cause to still there was inci- house permitted search of an entire was still mobile. the automobile search and person arrest therein.11 dent to the car was still The court stated California12 of Chimel v. decision presence at the station despite

mobile its area strictly limited the of such did au- amendment the fourth physical area the immediate search to prevention ac- thorize the seizure Fave, 11. Warrantless Searches La 67 United 10. Harris v. (1972). Court, Supreme (1947) ; 8 Crim.L.Bull. 18 L.Ed. 91 1399 S.Ct. Rabinowitz, 70 U.S. v. 339 States 23 L.Ed.2d (1950). U.S. L.Ed. arrested, asks, Appellant where the defendant was dissenting and re- and our col- versed the Harris-Rabinowitz rule now leagues would hold that the Alaska Court brings sharply underlying into focus interpret provisions Alaska constitutional Ap- rationale of Carroll v. United States. on search and strictly seizure more than pellant urges here that Chimel and its provision the similar of the United States progeny prevent any must be read to prevent any Constitution to automobile searches of automobiles or individuals on searches once the has been driver arrested grounds possible that no exigency situ- and outside the vehicle.18 ation existed when the vehicle or the sus- pect custody.13 We do not find this to be an case note, however, We that this view was appropriate one in which to decide the is adopted by Supreme United States sue whether or anot officer may Court14 regard or this court15 with search a motor vehicle under the circum intensity of suspect search of a arrested highlighted stances in Chambers v. Maro- for serious crimes and rejected has been ney, for we view the search herein as a regard to automobile searches search incident to the valid arrest of the Supreme United States Court16 and the passenger driver and the greater of the motor numbers of recent decisions in this area.17 hereby vehicle.19 adopt the view that a Nothing Williams, herein should be taken to indicate In Adams v. validity inventory ap (1972), searches which 32 L.Ed.2d 612 pear clearly exigency grounds outside rules. was held that once there were ar inventory car, alleged See discussion of the rest possession driver of a unlawful problem Comment, gun, person Chimel California: of a the “search of his Searches, A Potential Roadblock To Vehicle and of the car incident arrest was law (1970); strong 17 U.C.L.A.L.Rev. 639-42 Comm ful.” While dissents were written on ent, Cooper points The Aftermath opinion, v. California: covered in the Adams Illinois, Warrantless Automobile Search there was no dissent as to the search incident 1968 U.Ill.L.Forum 406-08 to the arrest. See also United Ma States v. Cf. Cupp, (9th 1970) hanna, (8th Ramon v. 1972). 423 F.2d 248 Cir. 461 F.2d 1110 Cir. (automobile search) McCoy Ragsdale, 17. United States v. 470 F.2d 24 1972) opin (dissenting (5th 1972) ; Mehciz, Cir. United States v. ion) ; Maroney, Chambers v. (9th 1971) ; F.2d Cir. United States 1975, 61-65, 433-436 Free, U.S.App.D.C. 198, F.2d (1970) (dissenting opinion, Harlan, J.). Gerlach, F. States York, 40, 14. Supp. (E.D.Mich.1972) ; Peters v. New 88 180 North v. Su 1912, perior Court, 833, 20 Cal.Rptr. L.Ed.2d 917 104 502 P.2d (1972) ; Pellier, 1305 v. Commonwealth 289 McCoy State, (Alaska v. 491 P.2d 127 (Mass.1972) ; State, N.E.2d 892 Harris v. 1971). (Tex.Cr.App.1972). 486 S.W.2d 88 Cady Dombrowski, - U.S. -, v. 93 S.Ct. Appellant asks for such a under conclusion 2523, (1973) ; 37 L.Ed.2d 706 v. Chambers City Fairbanks, Baker v. P.2d 402 471 Maroney, 26 L.Ed. (Alaska 1970), where this court noted we proposition 2d 419 On the that Car interpretation were not the -bound of fed- apply roll would not after arrest of the oc provisions eral constitutional and we were cupants vehicle, police in that the expound develop principles free to found could resort to the im lesser intrusion of concurrently in our own constitution. mobilizing the car until a warrant was ob tained, the Jones, court stated: “But which is the 19. United States v. 452 F.2d 884 ‘greater’ (8th 1971) ; Doyle, and which the ‘lesser’ intrusion is it Cir. United States v. 373 question (2nd 1967) ; self a debatable and the answer F.2d 875 Cir. United States depend variety Kapatos, F.Supp. (S.D.N.Y. on a of circumstances. v. For 255 332 purposes, 1966) ; Kelley, constitutional we see no difference v. State Ariz. P. 107 480 seizing holding (1971), denied, between on the one hand 2d 866, 659 cert. presenting a (1972) ; car before the is cause 30 L.Ed.2d 110 magistrate People Webb, Cal.Rptr. sue to a carrying and on the other hand v. 66 Cal.2d 56 (1967) ; Raffone, out an immediate search without a 424 P.2d 342 State v. 51-52, (1971); warrant.” 399 U.S. at 161 Conn. 285 A.2d Boat process to a long as it is dicial of search or release is incident arrest search party. substantially proper contemporaneously with made of the vehicle the arrest.20 case, marijuana in the the the depend on not should whether or clearly plastic package in clear seized person persons in the car or arrested Similarly the cident to the arrest. contents recently from the or have been removed baggies, shopping bags plus effectuating an purposes car for etc., scales, subject same it reach conclusion arrest. to arrest. seizure police an situation for unusual would an in the case problem There is additional suspect from car officer not to remove a however, bar, search was for in fact no process, through going the arrest while bags at the time arrest. made safety for reasons of and because both then whether question becomes these physical of effect practical limitations car to the could be removed from the items area. ing an arrest such confined police patrol subsequently car emphasize at bar in the case wishWe The an station no search was made. pursuant to the bags seized that one pack yes. Having found the must be swer bag is the that had con- arrest herein same age marijuana top bag contain package which tained perfectly proper ing packages, it was bag been handed to the officer. Since police items station to take those to the something, filled it difficult with safekeeping. This not be “in would theory po- postulate any requires purposes prevent possible ventory” but to ignore lice common sense what or destruction evidence. With the loss rea- bag seizure of the dictates—the probability existing drugs that additional ground it con- sonable contains additional present, permitting them be left in traband. impounded yard car in the of a com however, above, The search referred to towing company mercial not under only easy go to would visible areas within is not a requirement. control reasonable suspect permit reach of the and would gro There no removing error in opening spaces opening of closed or bags cery box from cardboard closed containers. then be The car should car under the facts as herein ju- noted pending immobilized and stored further particularly (Tex.Cr.App. egg”, right State, those chicken or v. 472 S.W.2d 765 troopers 1971). areas of Alaska state must effectuate arrest without recourse to Ciotti, 20. United v. States 469 F.2d the aid of a fellow officer. our dis- While 1972) (3rd ; Tozzi, colleagues senting decry Cir. United States the indefiniteness (E.D.N.Y.1971) F.Supp. ; essentially standard, the same Kapatos, (S.D. F.Supp. process balancing State, States in Smith noted N.Y.1966) ; State, Merrill v. 1973), the clear P.2d 793 (Alaska 1967) ; Kelley, Ariz. requirement State v. have the burden of Madeley proof establishing acted with dis- (Tex.Cr.App.1972) effecting any S.W.2d patch in arrest and the Seizures, Ringel, W. Searches and Arrests and thereto. Confessions, at § 286 Mc Cf. Coy State, (Alaska challenge Appellant trial the does not appeal points 1971) in his of Preston v. United or statement court exigent the which caused the cricumstances opened bags at the clear the im- of the to be is that searcli must follow contents mediately suspects fire marshal. state on advice of the after the are removed from station again lawful seizure the reiterate that the vehicle and restained right carry delayed with it items does not so to later the vehicle at of the point packages impossibility in time a later of station. exigent searching circumstances. suspects or are there- a warrant the car while the absent opened packages the time physically arresting are not ear in the or of them If such in Erick- practical problem arrest, set forth the factors “the then creates of similar Appellant agrees SUFFICIENCY OF EVIDENCE that this is indeed the proper standard but claims that this court Daygee that ad- claims evidence State, stated in Allen v. 420 P.2d mitted at trial was insufficient to sustain (Alaska 1966), that the above formula is guilty possession marijuana verdict of equivalent to that enunciated in Davis v. purpose for the of no evidence sale. Since State, (Alaska 369 P.2d 1962), pounds admitted as mari- was to the 15 of guilt “where all evidence of cir- juana personal being unsuitable for con- cumstantial, it must as to exclude be such sumption, appellant jury that the contends every theory reasonable consistent with the only speculate could as to of meaning accused’s specif- innocence.” Since Jordan quantity ap- marijuana. Therefore Davis, ically disapproves Allen and it is pellant only concludes evidence ad- ap- difficult argument understand mitted to show intent the scales and pellant. However, it is clear plastic baggies agent which FBI Wood this facts of case that the evidence was “customarily” testified were in the used sale sufficient the verdict. to sustain marijuana. The state contends that the evidence INCONSISTENT VERDICTS probative of intent to sell included the two scales, the five baggies, or six rolls Citing court’s recent decision packaging marijuana bricks and the State, DeSacia (Alaska 469 P.2d 369 marijuana. amount of The state claims complains 1970), appellant that the verdicts although no evidence was introduced returned jury inconsistent as to quantity marijuana being un- judgment of conviction must personal consumption suitable for that “the jury given- therefore be reversed. The jurors can be assumed to have known eight possible possession : verdicts of mari- enough way marijuana about the is con- juana, possession amphetamines, posses- justify part sumed to their inference on sell, sion pos- with intent to person large that a quantity with a of mar- sell, amphetamines'with session of intent to ijuana likely would intend to more sell corresponding negative the four ver- quantity.” than person would a with a small jury only dicts. The returned one verdict convicting Daygee possession of mari- disagreement There is a between juana with intent to sell no verdict appellant appellee to what standard concerning amphetamines. was returned determining apply court should sufficiency Appellee of the verdict. con Appellant charged contends that he was proper that the tends standard of review offense, pos with two counts same recently that stated most sell, drug intent session of a Jordan 1971): only being the substance in difference volved, marijuana, one case judgment acquit-

On motion for a amphetamines.22 that the cir judge tal the He claims must take the view of the relating possession with evidence cumstances to the and the inferences therefrom drugs most intent to for both favorable to the state. If he deter- sell were same jury to that fair and therefore the failure of the mines men in the exer- minded amphetamines judgment cise of reach a reasonable verdict could differ question charge logically with the guilt inconsistent whether has beyond guilty possession marijuana been established verdict of reasonable doubt, Daygee then with the submit the intent to sell. concedes must case to jury. (Citations argued that it omitted.) could be jus (Alaska supporting 1973), son v. other than those the seizure to be requirement tify applicable. the the relating waiver of come The circumstances at such time. opening packages important to the of become supra. 22. See n. independent appear grounds and there must concerning purpose marijuana the for the of intent exces- two to sell was drugs possessed argument, the Appellant’s primary were was different. sive. scales, baggies, packaging only argument legitimately of the mari- can make and he case, in- juana probative intent the of that offenses were of to sell the facts is marijuana, marijuana possession the and volving but not of the intent to sell sale However, possession amphetamines. argues prohibition era when Daygee akin to the similarly he jury only liquor that the not did find that sale of were outlawed. and data possessing growing He volume amphetamines points was the with the to the of sell, harmless, marijuana that proving intent to but not find that was is did possession amphetamines. increasing use of even in evidence of tolerance and Appellant con- society. in marijuana our that, appellant says The state marijuana that offenses are cludes since conceded, intent there evidence of was only that prohibitum essence malum marijuana of quantity sell besides imposed most minor sentence should be involved, only marijuana evi whereas showing of upon first offenders absent probative the am dence intent to sell of minors. traffic with phetamines ap was the bulk find. As for Daygee could points The state out that pellant’s contention that the verdict of years prison been sentenced have guilty possession mar with intent to sell of $20,000 indi- the facts and fined that ijuana jury’s fail is inconsistent with the serious cate he was in most class possession guilty ure to reach a verdict on drug noted in offenders as Waters says amphetamines, state State,23 large possession quanti- jury told they could return ver drugs ties of for sale. possession. dict on the lesser offense of they they But were not instructed that had proper find that the trial court to return a if verdict on the lesser offense ly various factors announced evaluated the they possession failed find with intent to Chaney succeeding cases State sell. Thus returned all no verdict at that the the zone within sentence concerning amphetamines. The state charged. the offense for reasonableness suggests jury also re even turned guilty possession a verdict of not FITZGERALD, J., concurs. amphetamines, such verdict would not CONNOR, J., with whom RABINOW- have guilty been inconsistent with the ver ITZ, J., joins, dict of C. dissents. possession marijuana with intent to sell. identity FITZGERALD, (concurring). seriously questioned, however, never Justice there was inconsistent the nature agree as to that the warrantless I amphetamines. place There was testimo it was the motor vehicle ny police thought that the pills highway by that the stopped on the LSD, were conflicting testimony My reasoning as to reached somewhat valid. how many pills given King, differently plurality. technologist, medical testing. In addi uphold search as one incidental They tion, only pills actually difficulty two tested. arrest. I have some to a lawful light restrictions with this view facts, On the above do verdicts Calif by Chimel v. placed such searches high seem to reach the level of inconsisten- L. ornia, cy demanded this court DeSacia. Ed.2d 685 SENTENCING search, officer made his At the time the Appellant vehi- argues four-year believe the cause to he had sen- cir- imposed upon tence these Daygee possession marijuana. Under cle contained 1970). (Alaska 1971). 23. 483 P.2d cumstances, impounded. entirely were ei- police practicable authorized to carry make a of the vehicle or to secure ther to search warrant of out search impound might it until warrant be a search vehicle.

obtained.1 persuaded proce- We are correct type dure to follow in of cases is that CONNOR, whom Justice, with RABIN- by advocated Harlan in Cham- Mr. Justice OWITZ, dissenting: Justice, joins, Chief Maroney, 42, 61-65, bers v. 90 S. Ct. L.Ed.2d 419 agree plastic (1970) (separate that the seizure opinion, part, bag marijuana of disagree concurring dissenting valid. We part). police If the have was a of there valid seizure the two cause vehicle, box, grocery bags, they detained seize cardboard and the should it, any postponing they contents until have of those items. difference obtained a warrant concerning permissi- satisfying between our constitu- views tional scope requirements. procedure This expressed ble would search and those opinion pri- reconcile the claims both individual majority great, is not it but vacy and effective law enforcement. nevertheless measurable. procedure en- This would relieve law are, Searches incident to a lawful arrest mak- forcement officers the burden of course, excepted from the constitutional ing difficult distinctions between vehicles requirement that search warrant must be California, exhibiting mobility justify sufficient obtained. Chimel v. exhibiting warrantless search vehicles 685 (1969). mobility. Standardizing the scope insufficient But the searches is limited by assimilating auto- requirement by the underlying purposes they for which permitted. allowed, mobile searches to house searches would are These are searches first, tend to the confusion now exists avoid any weapons to remove might which procedure to de- proper is difficult escape be make used to resist arrest or More termine at the arrest. and, second, scene prevent the concealment or em- procedures uniform could then be by destruction arrested evidence ployed the law enforcement authorities. person. 762-763, U.S. at S.Ct. 2034. should law of search and seizure police In the case at bar the or- officer “[T]he whose be a view written with to those occupants dered the two out of their vehi- it meant to control. Subtle conduct cle. He then searched them. Thereafter distinctions, find lawyers which even informed them that ar- under avoided.” application, hard be They should placed in separate rest. each high- police is effected When an police vehicles. arrest then re- practice take way, is to typical turned to the detained vehicle and took station, or possession garage, the car grocery bags and the highway place impoundment, to clear the cardboard box. “protect” the arrestee’s obstacles and point was, At this in our opinion, there Thus, imposes property.2 limited seizure exigency no justified which the seizure of police. great no burden or unusual those items under the rationale of Chimel a workable California, Not limited seizure only is The seizure was not supra. conduct, is a governing related to rule protecting against the officer many practice. weapons well-precedented police might against be used him. in a arrest police make an situations, Nor was there any danger then a crime to the scene home or called contained in might the vehicle be warning no advance destroyed. they have had shortly vehicle was 1032, 1035 Ferguson Maroney, Chambers (Alaska 1971). L.Ed.2d 419 639, 640 L.Rev. U.C.L.A. just way, goes invasion with need to obtain a warrant. suffered his of the legal respect practice perhaps occasions a diminished on these Routine system.5 a or structure until the house to secure may be obtained. It opinion is our sei- bags grocery inde- zure permit of the box would an A limited seizure was con- Daygee’s back seat of automobile pendent magistrate rather than stitutionally I, Sec- invalid under Article evi- to whether there is sufficient decide There- 14, tion Alaska Constitution. person’s of the justify an invasion dence at bags subsequent search fore, stated privacy. Supreme Court As the resulting dis- police station, with States, 335 U.S. United McDonald v. plastic marijuana bricks, covery of the 455-456, L.Ed. 69 S.Ct. scales, weighing amphetamines, bags, (1948): ap- illegal by invasion of was tainted dealing formalities. with “We the evidence pellant’s automobile.6 Since presence of serves a search warrant the search was obtained the course grave high Absent some function. trial, re- would Daygee’s admitted we has emergency, the Fourth Amendment the conviction.7 verse interposed the citi- magistrate between disposition -however, agree, police. This zen and the was done majority other issues treated the home to shield nor to make criminals opinion. illegal haven for activities. safe objective mind was done so that an pri-

might weigh the need to invade that

vacy in order enforce the law.

right privacy precious too deemed those entrust the discretion job is of crime

whose the detection of criminals.”

the arrest prefers have Any who his car arrestee Jonas JACKSON, Appellant, immediately may ex- searched and released option to consent to the search ercise COMPANY, ELECTRIC GENERAL of the car.3 Appellee. No. 1778. Finally, significant advantage procedure emerges from the limited seizure Supreme of Alaska. Court danger pretextual is a reduction of the Oct. 1973. Permitting warrantless automo- searches. presents temptation bile searches a serious but overzealous well-intentioned to initiate search on less Unfortunately,

than cause.4 opportunity

courts re- seldom have non-productive illegal

view the search.

Typically, privacy citizen has whose Maroney, supra, 3. Chambers v. Lumber Silverthorn Co. States, 64 L.Ed. 1975. (1920). Brinegar Justice See Jackson’s dissent States, 160, 183, Hampshire, 7. Coolidge U.S. v. New 69 S.Ct . Mapp (1971) 29 L.Ed.2d L.Ed. S.Ct. Ohio, 6 L.Ed. Id., 69 S.Ct. 1302. 2d 1081 Wong Sun v. United 471, 484-485,

Case Details

Case Name: Daygee v. State

Court Name: Alaska Supreme Court

Date Published: Oct 12, 1973

Citation: 514 P.2d 1159

Docket Number: 1408

Court Abbreviation: Alaska