Fresneda v. State

FRESNEDA, Appellant, Arthur Alaska, Appellee.

STATE

No. 1045.

Supreme Court of Alaska.

Aug. 27, 1969. Ruddy, Juneau, appellant.

W. G. Tobey, Atty., Juneau, Harold Dist. appellee.

OPINION NESBETT, DIMOND, Before J., and C. RABINOWITZ, CONNOR, BONEY JJ. determining BONEY, motion was assumed Justice. appellant prior had two narcotic con- superior by the Appellant arraigned was mandatory victions and that the minimum Alaska, a three-count Juneau, at on

court he years sentence receive be 20 could would possession of charging him with indictment imprisonment for each count of 3, 1967, sale on imprisonment life for sale a minor.4 minor on December marijuana to a suspension, proba- statute also forbids possession of on December parole tion and until the minimum sentence day appellant’s (the arrest)., all is appellant served.5 Thus he believed was 17.10.010,1 which makes violation AS mandatory imprisonment faced with life possess a crime to sell an unauthor or possibility parole without suspension. or any ized manner At the time drug. narcotic Appellant argued that since it was man- indictment, included 17.10.230(13) AS datory minimum attacking, sentence he was marijuana in the definition of “narcotic he did not have to until wait sentence was drug”. actually imposed. He contended that he April superior was being prosecuted On court under a law only argument appellant’s heard motion on could result a cruel and unusual punishment. appellant’s dismiss which was based question, claim that the statute AS At a later hearing, the court June 17.10.200,3 prescribed penalties dismiss, denied the motion finding for concerning violations the laws nar- appellant standing lacked attack drugs, cotic inflict cruel and un- would only statute. The court reasoned that punishment appellant. usual way appellant could attack statute be- 3. AS 17.10.200 in 1. AS 17.10.010 states as follows: as follows: as follows: AS give, barter, supply or distribute in ufacture, possess, have except manner, trol, sell, prescribe, administer, dispense, from them opium, eaine, amidone, done, chemically not more than vision of the laws of the United States or of lating a first offense where punishable by a relating previously been convicted third or than ment for not less than two nor more than $7,500 conviction, It is “[Njareotic drugs” (a) 17.10.230(13) years. other to narcotic A unlawful as authorized in this cannabis nor more than 20 or subsequent offense, every state, territory nor For a second by imprisonment compound n * chapter except physically punishable by keeping $5,000 other substance neither for pertinent parts fine who violates isoamidone, ketobemi- [marijuana], drugs, *. pertinent part any person means coca any under his not the offender is distinguishable offense, aof narcotic records, years. offender by imprison- or if district more chapter. a fine of provision any violation to man- isonipe- leaves, states states For a upon drug than con- pro- any less for re- of- 4. AS 17.10.200(e)(3), supra n. 3 at 3. AS of the United States or of state, or more other or if the offense is a first or second selling, giving fender has ble for the remainder of his natural ously been convicted two or more times drugs 20 nor more the laws of the United bation or ed years narcotic violation and the offender has sentence shall not be ing until the minimum served. ^[*****] (c) (3) (d) 17.10.200(a), supra 17.10.200(d), supra any to narcotic by imprisonment is state, to territory A if the offense is a third violation a fine of not more than this section violation of this times drugs, punishable person previously parole person than imposition territory the offender is drugs, or district or convicted of shall not be imprisonment provid- violation under the years. supplying for suspended for not or district n. n. or execution the offense is chapter convicted imprisonment relating at 3. any age less or of 2-3; punisha- the laws narcotic illegally $10,000 granted life. previ- or of relat- other than pro- two any AS equal protection of the mandatory minimum denied trial fore order Appellant The court also moved for sentence were unconstitutional. laws. provision transpor- of AS 17.- directing pay further noted that the state expert sentences witness concerning' minimum tation fees 10.200 statute, testify 12.55.085 motion support AS of the second conflict with a later to because the court motion was denied (a) purports to allow dismiss. This authority and to find that re- portion any sentence the no a of court could suspend funds, place person probation. quired The court and the provide the on it to such relied practice it did not funds allocated that of court have sufficient stated a matter as Additionally, authority purpose. for dis- to the on it for the later this statute as not mandatory single sentences court a witness would regarding minimum stated that really provide AS be sufficient to the factual by prior enacted imposed statutes that 12.55.085(a). The court reasoned the background a case” on con- for “test with a minimum not faced appellant was stitutionality concerning mari- laws of sentence, way in which there was no then juana. The to dismiss was second motion as im- appellant attack statute could at trial taken under advisement and denied punishment. and posing a unusual cruel after the defense rested. conviction and Appellant wait until could juryA returned verdict on a June actual sentence and then attack his sentence appellant guilty counts finding of two punishment. as cruel and unusual possession marijuana of of one count and May a on Appellant filed second motion marijuana of to a minor. The sale of constitutionality of attacking the noted that after the trial before court but marijuana for reasons relating the laws sentencing final a new law judgment and apart from issue cruel and unusual marijuana defined had taken effect which that the punishment. Appellant contended drug, dangerous a not as a narcotic but as marijuana with improperly statute classified (A) According AS 17.12.150(3) AS narcotics, police power hard exceeded state, possession became process, of due and 17.12.1108 violative einogenic drugs, 12.55.085(a) his 6. follows: and stimulant states as when AS use, possession appears circum- or control is for own there are If that upon guilty mitigation punishment, a is misdemeanor and stances in by imprison- served, punishable justice conviction is ends will or by suspend year, discretion, may, more one or ment for than in its not the court by may $1,000, imposition di- fine or a of not more than of sentence and suspension for a continue both. rect (b) person provi- exceeding period time, maxi- A violates a who not chapter men- be im- sion of this other than one mum term of sentence per- upon (a) section, posed, of this or a terms and condi- tioned and provision determines, who this and violates the court son tions which possession probation, chapter relating place person or on un- shall supervision depressant, hallucinogenic charge and control der drugs, during probation or when officer of the court stimulant purpose suspension. or of sale control is disposal person, to another other 17.12.150(3) (A) as follows: 7. AS states felony upon guilty of a conviction “ hallucinogenic [Djepressant, or stim- punishable follows: drug” means: ulant imprison- offense, (1) by for the first [marijuana], psilocybin, (A) cannabis years, than 25 or ment for not more lysergic dimethyltryptamine, die- acid by $20,000, not than or a fine of more every thylamide, other substance both; by having physiological effects similar subsequent (2) of- for the second any fenses, by imprisonment term life, by years fine or or of not more 8. follows: states as AS 17.12.110 provi- $25,000, (a)A person both. than who violates a provision pos- (c) chapter relating A violates a who sion this by selling chapter depressant, otherwise hallu- control of session or was still although sale he was a party any a misdemeanor of the trans- minimum sentences felony, there were no actions between Hastings and Sherri Mea- corre- required. These statutes According chem. of Mea- 17.10.230(13) sponding amendment of AS chem Hastings, appellant part in took be- narcotic) as a (delating transaction December 3 wrapping Appellant August came effective the marijuana sold, to be by suggesting 12, 1968, and August was sentenced Sherri bring Meachem ten dollars formally August judgment alley was entered bowling that night. Hastings considering the court after appellant 1968. The testified that not made counsel, sentenced sales memoranda of other participation than his in the sale statutes, to newly according enacted suspended. years years total of 8 appellant After and Hastings left her apartment December appel- Sherri preceding the

Reviewing events Meachem obtained bills arrest, two five dollar appears that in November lant’s from Sergeant Cunningham, Meachem, who noted the age Sherri Dawn serial evening, numbers bills. That Sergeant Cunningham went the to Jun- 3, appellant, December Hastings and Sherri help police department eau and offered Meachem met at alley the and stop in the marijuana bowling the traffic Juneau according Hastings, Meachem and Sherri Sergeant Cunningham area. that She told appellant marijuana cigarettes handed three appellant, Hastings, the roommate Jim Hastings, gave them who turn past marijuana had in sold the to her hus- paid Sherri Sherri ; Meachem. Meachem band ap- she did not mention name Hastings. money ten was pellant dollars The Cunningham at this time. Sergeant immediately by spent appellant and Hast- did approach not Sherri Meachem to direct ings. undisputed marijuana It is that the Hastings purpose buying mari- belonged Hastings appellant. juana, and not to cooperate but he did offer to with Later, evening of December Sherri Meachem and told her he would three mari- Meachem turned the supply Sherri money purchase to make a she Cunning- juana cigarettes Sergeant over to needed it. time, ham. No arrests were made at A few days later ap- Sherri Meachem Wellington because Chief Juneau proached Hastings requested Jim police department get wished to at the he sell marijuana. her some He stated that marijuana. source supply he did any not have itof at that time but would getting some in the near future. Meachem On December Sherri According Hastings’ testimony he actual- again them police to the and informed went ly did time, have at that but had made to her another sale been wished to be investigate cautious and Sherri linking evidence Hastings. There was no Meachem before making a sale. appellant December with sale made on police result 1967. As a of this sale On Hastings and Jim Hastings. decided to arrest appellant went apartment to the of Sherri Meachem, evidently her; a to make sale to Wellington, On December Chief however, because she did any Ciraulo, have Sergeant Cunningham, Lieutenant money they agreed to meet later at a city police department, of the Juneau bowling alley. It appellant’s testimony attorney district at- from Juneau disposing depressant, hallucinogenic of a 17.10.230(13) 9. AS states follows: drug or stimulant to a drugs” leaves, less than “[N]arcotic moans coca years age guilty felony 19 upon opium, amidone, isoamidone, isonipecaine, a punishable by impris- conviction ketobemidone, every other substance years life, onment for term of having physiological or or similar effects n * *_ a $25,000, fine not more than

by both. or Although brought exactly without arrest torney’s proceeded office was never out made, apartment where point at what arrests were search warrants of- Hastings The arrests lived. have occurred before appellant and Jim apartment. knocked and entered search. ficers bedroom, apartment consisted of The Appellant point raises the that the search kitchen, another possibly bathroom conducted time of arrest they entered officers room. When the apartment he Hast- shared Jim Hastings Hastings appellant. found ings illegal. Appel- was unreasonable police after door opened the had lant claims that warrant to search could two, appel- enabling delaying minute preceding have been issued in the week into quantity lant to throw arrest, yet police officers chose to pro- having done denied Appellant stove. oil ceed one. were found without If the search this. unreasonable, re- to be then the evidence search, three mari- sulting from proceeded officers un- juana cigarettes, be inadmissible would Sergeant thoroughly. Cun- der the United both Constitution of not look- were testified ningham Constitution.10 States and Alaska whose serial dollar bills for the two five ing These noted. bills numbers the United fourth amendment of stated recovered. Lieutenant Ciraulo never right insures of States Constitution “[T]he routine”. a “matter of the search was that persons, the to be in their people secure they that Wellington stated Chief houses, effects, papers, against and unrea- to looking weapons for which could be used sonable and The com- searches seizures.” evidence escape an and effect parable provision of the Constitu- Alaska “in a criminal case”. be used which could I, provides: tion article 14§ police that the There is no direct evidence people of to be secure right the re- specifically anything were looking persons, prop- in their houses and other 3,1967. the of lated to events erty, effects, papers, against un- search, During Lieutenant Ciraulo seizures, reasonable searches and shall Ac- opened kitchen area. issue, cabinet not be warrants shall violated. No officer, appellant ad- police cording cause, probable supported by upon but things kept time that he mitted at the affirmation, particularly oath de- or found in the cabinet. officer searched, scribing place and the to be letters addressed to cabinet some persons things or to be seized. Upon opening and a toothbrush container. generally right is' that agreed It container, officer the toothbrush privacy is the foundation the fourth of marijuana cigarettes. three discovered guarantees.11 amendment Hastings marijuana that testified all the belonged Although that the framers of the him but Constitution to an cigarettes container did mention searches incidental three toothbrush arrest, ago be- began had been seen courts some time were not never cig- exception carve out an to the fourth amend- fore him. These three necessity trial of an im- introduced at ment based arettes were over Although basis upon of and formed the mediate arrest. objection appellant, search agreement there that charge of the is wide a warrantless 10, Appellant not unrea- on December incidental arrest is Jim sonable, Hastings apartment. con- were arrested their there much confusion been (Alas- Boyd States, State, (1967); 10. Goss v. 390 P.2d v. United U.S. 1964). 29 L.Ed. ka Hayden, Warden v. 1642, 18 L.Ed.2d 87 S.Ct. 788-789

1¾9 truly in English kind search is what structive cerning liberty and the funda- have courts principles law, cidental in character.12 Some mental that has ever been area acknowledged that the in this found in English decisions law noted book.” He altogether placed are not harmonious.13 such writs liberty every “the man in the hands petty of every officer.”16 affects dealing with a matter which meantime, In the before the American liberty, essence of very constitutional English Revolution the courts themselves im- than history more academic becomes of had started restrain power forged portance. political Our ancestors Crown to issue and execute such writs their ex- our on the anvil of constitution the detriment of the rights fundamental perience and with a what view toward Englishmen. evils. governmental certain regarded pro- can The matters concerned them Camden, Lord Carrington, Entick v. insight into vide the intentions valuable Howell, St.Tr., 1029, declared in the underlying principles embodied general void a warrant issued Rights. Bill to make The use want we State, Secretary finding pre- that the course, vary, material will of this power tended such Crown to issue depends Much in these cases one’s outlook. writs legal had no valid case basis. This gives- “on one Amendment whether following decided Rights, place second none in the Bill year the House of passed Commons resolu- kind on the considers whole warrants, condemnatory tions of general nuisance, impediment war serious persons whether for the seizure against crime.”14 papers. general warrants, Thus origin their in the notorious Star Chamber struggle The historic birth to gave times, had largely earlier declared thor fourth amendment is discussed invalid before American Revolution. oughly Boyd United This well be reason general (1886), L.Ed. 746 warrants not expressly prohibited were scholarly in the and detailed dissents the fourth amendment. As Mr. Mr. Frankfurter in Harris v. United Justice Justice States, Bradley Boyd noted in v. United States, 145, 1098, 331 L.Ed. U.S. 67 91 S.Ct. framers, it concerning the intention of the Rabin 1399 in United v. (1947), and States gen- was so to probably obvious them that 56, owitz, 430, L.Ed. 339 U.S. 70 94 S.Ct. 15 they eral did warrants were invalid that (1950) 653 prohibit expressly trouble to them the major grievances One of con- which put he framing Rights. of the Bill of As to the American was tributed Revolution it: Crown, practice through its officials, general war- colonial of issuing against struggles arbitrary power The rants and These were writs of assistance. they engaged had more which Otis, in a described colonist twenty years, too than would have been James 1761, in- debate in worst celebrated “the as engraved deeply their memories of arbitrary power, strument most de- approve allow them of such insidious Although applied 12. this court has the doc 145, States, v. United 331 U.S. Harris v. trine incidental searches in Merrill 1098, 1399, 157, 1104, 91 L.Ed. 67 S.Ct. 1967) 686, (Alaska ; State, 423 dissenting). P.2d 700 (Frankfurter, (1947) J., 1409 State, (Alaska 235, v. 425 Maze P.2d 238 Lasson, History De- 15. See also The and 1967) State, 220, ; and Goss v. 390 P.2d velopment of the Fourth Amendment 1964) (Alaska ; only v. Ellison 223 (1937). States Constitution United 1963) State, 716, (Alaska P.2d 383 719 616, Boyd States, been occasion some there to discuss United v. 116 U.S. 746, of the limits of the doctrine. 29 749 6 S.Ct. L.Ed. (1886). People, 13. Hernandez v. 385 Colo. Chinn, (1963); P.2d State (1962). 373 P.2d Or. they possession,

disguises grievance parts of the old which all of it searched be arrest, deeply had abhorred. incident to a so valid but without search There four warrant. were dissent- Boyd v. United Harris, ers to the decision. In offi- (1886). 29 L.Ed. cers made a hour five search of defendant’s interpretations the fourth The earlier room, bedroom, living bathroom and kitch- Supreme States by the amendment United en. The officers had obtained arrest valid search were restrictive warrants for forgery, check but not ob- incidental might performed be tained search warrants. The testi- officers time an earlier To courts arrest. they fied searching specifically were un searches obvious. If quite reason was checks, forged two due limited search were warrant der valid physical dimensions re- of checks were they warrants, if scope, such purpose quired through papers search defendant’s required were by magistrate, issued search, During forged drawers. search, then limited justify even a order to seized, draft were fourid documents incidental logically that a it followed subsequent became the basis must, more anything, be an arrest prosecution. Supreme Court held that de earlier reason the limited. For the entire under the “im- was searching the speak about cisions defendant, mediate control” of who had being arrest, under placed of the one room, living been arrested in the and that im things were seize those able to general the search was incidental and not a control, mean physical mediately under exploratory one. sense his control things under ing importation property no law virtually extensions of were tion determined of constructive and control body.17 Additionally, it was or instruments or fruits reaffirmed in that contraband v. Rabin United States plain view the crime which were owitz, 94 L.Ed. arrest at the time of presence the officer Frankfurter, in his Mr. Justice war a search without might also seized dissent, discussing history after first exploratory searches rant. General amendment, doc fourth reviewed however, ;18 universally condemned to arrest and ob trine of search incident ex dividing between line location of the served : incidental searches ploratory searches necessity. however, roots, lie Its basic recognition.19 beyond blurred was soon necessity Why ? search is the What 145 States, 331 U.S. v. United Harris For two permitted? person the arrested an ex- 1098, (1947), 91 L.Ed. 1399 67 S.Ct. first, protect in order to reasons: pur- scope pansion permissible deprive the arresting officer and to took arrest an pose incidental to a search escape, means of prisoner potential court. a place at the hands divided 482, Morrison, 93 N.H. 47 Closson v. under proceeded Harris majority in and, secondly, de- 459, avoid to Am.Dec. a man’s theory because per- the arrested struction evidence constructive his is under dwelling house 383, an arrest see States, incidental made search U.S. 232 v. United 17. Weeks States, F.2d 155 652, 231 United Kremen v. 341, 655 392, L.Ed. 58 34 S.Ct. per (9th 1956), 353 U.S. rev’d curiam Cir. (1914). (1957). 828, 346, L.Ed.2d 876 1 77 S.Ct. Lefkowitz, U.S. 285 States v. 18. United Su- States 877, of the 420, 19.For an outline United 883 L.Ed. 76 52 S.Ct. preme area,, see in this decisions Importing Court’s (1932) ; v. United Co. Go-Bart California, 89 395 v. Chimel 51 (1969). 2034, 23 L.Ed.2d For a vivid L.Ed. exploratory intensive, example an over

14J Lee, all, taches 44 Iowa at it is Reifsnyder arrest validity v. See son. it, 733; Hen justifies which not Holker 103, Am.Rep. which motivations 1090, may lie timing behind nessey, S.W. arrest. To 141 Mo. 165, Am.St.Rep. permit general a search incidental to an L.R.A. may arrest in that officers one’s From follows is to make crucial dwelling this it phys only things right element which is not irrelevant search and seize arrested, protected those ically privacy but the fourth amend- person control. ment. physical within immediate the whole a it makes of What farce is small consolation to know [I]t say that because Fourth Amendment one’s papers only are safe as one long so many purposes everything in legal for is not at home. therefore man’s house is under his control Kirschenblatt, United States v. F.2d may be searched. his house—his rooms— 1926) Hand,

* * * (L. (2d A.L.R. 416 Cir. Apart from such instances J.). performing The reasons for arrest language, the doctrine loose use of given num place at a time and can be so has, very until search incidental to arrest possible not erous and interwined that recently, strictly confined way in most to demonstrate one cases e., situation, of the i. necessities through'ar sought, other that the officers immediate person search and those home, general to execute rest one’s physical surroundings may fairly which un prohibited search would even be per be deemed to be an extension der a valid warrant. search son. Rabinowitz, deci- the Harris and After S.Ct., 437-438, 72-73, Id. at 94 L.Ed. sions, jus- to be a warrantless search at 663-664. many arrest tified as incidental to a lawful noted, thing to Judge As Hand it is one not met. search could tests had to be pockets something search a else man’s place be too time or from remote to ransack for everything his entire house purpose of the necessity arrest.21 The him, having gained incriminate independently justifiable search had to be entry

lawful in order an arrest.20 to effect arrest, purpose that from the and it was searches, general exploratory While even scope, permissible set the limits for the warrant, universally under are A intensity, and duration of search.22 condemned, danger there is the that war- police the give lawful arrest did not rantless searches incident arrest will the arrested “right” absolute to search However, prohibitions used to person place subvert arrest. and the arrest and still is true that most adequate fourth amendment. It is not search the ar- situations there is need to cautionary make the statement in- weapons rested order purposely must not arrest one in his arresting officer. sure safety home perform order a search incident need, justified It was the the arrest to arrest. privilege If the at- of search Ohio, 1, 17-18, 22.Terry 88 v. It is true that when one has been ar- pri- 903- office, 20 L.Ed.2d rested his home or his in his (1968) vacy already invaded; : 904 has been but past though interest, lost, altogether has This held separate in- at its protecting a reasonable search from the interest in * * ception may papers violate the Fourth Amend- his *. intolerable inten- virtue its ment sity Rabinowitz, United States v. 176 F.2d scope. omitted] The [Cites (2d Hand, J.). 1949) (L. 735 Cir. “strictly scope be the search must by” justified the circum- tied to State, 21. Merrill 423 initiation v. P.2d its stances rendered 1967). (Alaska permissible. Dodd, search In v. 28 Wis. 137 N.W. that a State was also clear the search. It (1965), three narcotics went had to 2d 465 officers and reasonable be incidental to apartment on a arrest him looking for Dodd’s to to in one which the officers battery. being Upon charge of assault and articles, it had be conducted specific to Dodd, they apartment by un- admitted into the reasonably calculated to in a manner companion in him and his female found cover such articles. night Upon ascertaining that their clothes. a creating courts in difficulty The couple had been the were unmarried and from the notions criterion workable Dodd for cohabiting, the officers arrested a consideration reasonableness based on three lewd and conduct. The lascivious by even all the is illustrated circumstances officers, arrest, then narcotic made who the in factual situations a brief look at the apartment. The proceeded to search the such attempted juggle have to which courts “incidental” revealed seeds of search two “specificity”, “pur “intensity”, terms as found pocket a shirt pose”, and “duration”.23 living in a small This closet off room. However, People, In 153 Colo. evidence was held inadmissible. Hernandez v. State, arrested defendant was the same court in (1963) 385 P.2d 996 v. Jackson murder, apartment (1965) for assault to Wis. held N.W.2d arresting searched search valid the following officers circum- keys the defend apartment apartment stances : and found Officers entered night parole ant’s automobile. The officers took arrest defendant her for car, downstairs, keys, went searched violation and her friend for boy to arrest dictating inside, This encouraging machine. found a stolen violation. Once nowas was held an search. There the officers observed needle de- marks on arms; have using mention of the officers could fendant’s admitted heroin what she the-apartment. of- looking day for. before at The then for illegal ficers arrested her use Marrese, F.2d v. United States find- of heroin searched (3d 1964) the was on Cir. arrest ing papers paraphernalia heroin underneath police rooming first The floor of house. floor of a closet. court held room, upstairs searched went defendant’s search valid. The arrest illegal shotgun. it and found held a had been This was en- for desertion. While lower courts have been However, in general deavoring cope application exploratory search. Cook, P.2d to incidental 70 Wash.2d the standard reasonableness State Court, searches, down- (1967) Supreme defendant arrested United States decisions, house. Of- made stairs the kitchen his* series recent after protects hours clear that ficers searched for two the fourth amendment police people privacy, simply taken head- right defendant had been their quarters, places right bed- is now meas- things. in defendant’s brother’s upstairs, panel expectations ured hidden reasonable room necessary privacy automatic which are to a civilized ceiling, found a .45 way Property life. have evidently holdup by defendant. law distinctions in a used been abandoned as a determinant of a valid incidental The court found right privacy. arrest. beyond go arrested and 23. Mr. Jackson commented Justice objects upon him or in his dissent immediate to Harris v. United control, practical physical 1098, 1120, 145, 197, no limit I see 91 U.S. 67 S.Ct. opinion (1947) 1399, of the : short of that set U.Ed. 1431 difficulty problem limit means to me no for Court —and that The with this all. me is the search is allowed that once

143 Supreme any has weapons The Court abandoned the suspect may have trespass, prop- under necessity finding prevent order to the concealment or prerequisite erty principles, as a law destruction of suspect’s evidence on the person. “And the area suppression gathered into which ar- obtaining of evidence might restee reach in order to grab weap- seeking one by violating privacy or evidentiary must, course, items suppression.24 The court has refused its governed by a like rule.” Thus “immediate property distinctions import the subtle law control” has resumed its original meaning. lessee, licensee and invitee into between The Court reasoned jus- that there is no has law search seizure.25 Court tification for searching rooms other than seizure of abolished the distinction between that in occurs, which an arrest for items “mere evidence” and seizure matter, for searching through all instrumentalities, crime, and fruits of the drawers or concealed areas in that room contraband,26 no the court has found itself. suppres- distinguish between the reason tangible intangible evidence sion of Turning hand, to the case at we product find light that in California, of Chimel v. recog- seizure.27 Thus the court we must reverse and remand a new not control property nized that interests do trial.28 The search conducted December making rea- government’s privilege 10 at the time of beyond arrest went seizures; rather, sonable searches and limits set forth in Chimel. The officers controlling. right is the which is privacy searched the entire which was decisions, occupied

In line these by appellant Su- and his roommate. preme recently only explanation Court has reviewed for the search in seizure, subject and has of search and over- the record is found in ruled the cases. Ciraulo, Harris Rabinowitz Lieutenant who stated the search California, 752, 89 Chimel 395 U.S. was “routine” and Wellington, Chief who 2034, 685, (1969) 23 L.Ed.2d 694 stated looking weapons Supreme decided to its to return evidence to be used a criminal case. precedents earlier by adopting the rule The results search were three mari only juana incidental to the cigarettes searches extend found in a toothbrush suspect order remove container which was inside kitchen cab- States, 347, 618, 1731, 24. Katz v. United 389 U.S. U.S. 85 S.Ct. 14 L.Ed.2d 601 353, (1965). 507, 576, apply 88 S.Ct. 19 L.Ed.2d 583 We do decide that we will (1967) ; States, pending Silverman v. United 365 Chimel to cases on direct review 505, 511, 679, U.S. 81 S.Ct. 5 L.Ed.2d this court as of the date of the Chi 734, (1961). States, 739 mel decision. Desist v. United 244, 1030, 248, U.S. 89 S.Ct. 22 L.Ed.2d 257, States, 25. Jones v. United 362 U.S. (J. (1969) Harlan, dissenting); 259-261 266, 725, 697, L.Ed.2d Walker, Linkletter v. Id. at 85 S.Ct. (1960). 607; Schwartz, 14 L.Ed.2d at H. Hayden, 26. Warden v. Retroactivity, Reliability, 387 U.S. 300- and Due Proc Reply 87 S.Ct. 18 L.Ed.2d Mishkin, : A ess to Professor (1967). (1966). U.Chi.L.Rev. 762-64 As pointed Note, Prospective out in Overrul Wong Sun v. United ing Application and Retroactive 83 S.Ct. 9 L.Ed.2d Courts, Federal 71 Yale L.J. 912- (1963). (1962), this view dates back to Chief deciding opinion We are not whether Chimel Justice Marshall’s in United States given only prospective Peggy, should be (1 Cranch) effect v. Schooner according analysis of the relevant 2 L.Ed. 49 Walker, factors listed in Linkletter v. living Hastings pack- the that in mitted handed her the Appellant was arrested inet. age appellant pack- kitchen cab- but claimed handed the reach the not within of room cigarettes age marijuana Hastings first. inet. These three objection of trial the admitted at over were The testimony Hastings, of Jim counsel, for the the formed basis appellant’s accomplice, was roommate De- possession marijuana on charge appellant, denied by who claimed that Hast cember 10. ings responsible solely was the It sale. the the search Because extent was appellant admitted that no owned the fourth provisions marijuana the violated cigarettes other than the three amendment, of this evidence the admission in the It also toothbrush container. was error, requires of the the reversal appellant was admitted that made no sales of 10.29 possession marijuana on December in participation count other than his the sale of It December 3. that curious the marijuana in that We believe in prosecutive state its exercise container, had been which ob- toothbrush Hastings, discretion allowed an admitted seizure, prohibited a tained by marijuana plead Juneau, guilty dealer in might have evidence which was material days and serve 60 jail. in the other On appellant’s the counts led to conviction on hand, sought state life sentence De- marijuana sale of on appellant, in mari whose involvement prosecution’s The thrust of cember 3. juana traffic was minimal. Juneau link him with against appellant case was to From it is Hastings the record that obvious During his the activities of roommate. prime was mover transaction testimony the trial much accomplice’s testimony December An conflict. substantial distrust, viewed with because accom on direct ex- Meachem testified Sherri plice personal in usually believes he the sixth of amination on prosecution.30 in aiding terest apart- appellant came to her Hastings presence place Mere at the aof marijuana. How- ment and smoked some usually crime is not a criminal act. Be ever, she admitted on cross-examination appellant’s cause in this case evidence of police had that in her statement she stated conflict, participation in the sale was they marijuana that she didn’t know jury could have been sitting on case night or not. On direct examination fact that the found influenced had set the appellant Meachem said that apartment appellant’s price of the to be sold evidently him. This was belonged to 3rd; yet she said cross-examination appellant owned first evidence re- price set at Then on Hastings $10. marijuana. mari that he owned fact story. again reversed her She direct she juana at the time of these transactions they impeached as to the time was further apartment made kept could have im- bowling alley, met was also participation the sale December any- peached as whether said ownership mari more believable. His her at the time of sale thing to him tend connect more juana would talking. She ad- did the Hastings whether not be had on A shall appel- conviction evidence found Certain other accomplice unless of an the time was seized at lant’s is corroborated other evidence properly were ad- arrest. These items they mitted, plain with the the defendant to connect view tends because room; crime; walked into the as the officers and the cor- commission product merely search. were not if it is not sufficient roboration crime or the commission shows policy AS 12.45.- is embodied in 30. This commission. circumstances 020:

145 case, assumption Because the dealings of his peti- roommate. that the the three tioner was guilty. introduction into evidence But it is not the func- appellant’s marijuana cigarettes violated tion of this Court to determine innocence rights of the or guilt, under the fourth amendment apply much less our own Constitution, subjective United we are hound justice. States notions of duty Our apply error enunciated uphold the harmless test is to the Constitution of the California, Chapman v. 386 U.S. United States. 824, 705, 87 S.Ct. 17 L.Ed.2d 710-711 550, Id. S.Ct., 1792, at 88 at 20 L.Ed.2d at (1967). involving In cases federal con case, n. 16. Bumper Unlike the in the have stitutional errors state courts no present case, indicated, have as we there deciding choice or discretion in what stand were substantial conflicts applied judge ard be the effect will at Appellant trial. took stand and of- erroneously evidence.31 The admitted explanation fered an for the events which Supreme Chapman United Court States was consistent with his innocence. For required state to find federal con courts these reasons ap- we find we must reverse harmless, only stitutional error if the court pellant’s all convictions on three counts and beyond a reasonable was convinced doubt trjal. remand for a new jury’s the error not affect did this test to the Applying determination. By holding virtue of our that reversible present say beyond a rea case we cannot court, error was committed the trial erroneously doubt that admitted sonable is now unnecessary to discuss the other jury’s determin evidence did not affect issues raised by appellant.

ation on all three the counts. The judgment below reversed and Throughout the dissent of Chief remanded. Justice Nesbett, assumption implicit there lies guilty. that the In a recent RABINOWITZ, Justice, (concurring). case, Supreme

United where States agree I requires that Chimel1 the holding virtually uncon- guilt evidence that appellant’s Fourth rights Amendment tradicted,32 a view was dissenting similar abridged by the actions of the Juneau expressed application about of the law enforcement in conducting authorities Chapman reply test. Mr. Stewart Justice warrantless search ing maj ority for the states: question and their seizure of mari- three suggested “[ejven It is dissent that juana cigarettes. Supremacy Clause * * * assuming that there was no of the United States Constitution us binds consent search and the rifle apply Chapman’s harmless-constitution- * * * have been admitted should not Thus, pivotal question al-error rule. “ * * * evidence, into the conviction before us is whether ‘there is reasonable suggestion seems should stand.” This possibility complained that the evidence ”3 to rest on the facts the might “horrible” have contributed conviction.’ (Alas- State, See Love v. 752, 31. California, 457 P.2d 622 1. Chimel v. 395 U.S. ka, Aug. 8, 1969). (1969). 23 L.Ed.2d 685 Bumper Carolina, Chapman California, v. 32. North 391 U.S. v. 20 L.Ed.2d 88 S.Ct. 87 S.Ct. L.Ed.2d 710-711 prosecution’s (1968). Bumper (1967). case testimony of victims the two rested positively Id. at both de- S.Ct. at 17 L.Ed.2d of whom identified the Fahy Connecticut, rape 710, quoting perpetrator from fendant as the of the 85, 86-87, 84 no armed assault. The defendant offered L.Ed.2d evidence at all. actually the trial Before court’s admission committed the crimes charged, marijuana cigarettes he held three can so error was “harmless” in the harmless, declare “must able to this court petitioner sense that got what he de- beyond a that harmless rea- belief it was question served. The is whether the sonable doubt.”4 error was such that it cannot be said change in Assuming imminent no is petitioner’s guilt that adjudicated formulated, presently federal then rule as constitutionally basis of admissible perceive in situations I can most factual evidence, means, case, which in this no the federal real distinction between whether properly admissible evidence for errors consti- automatic reversal rule was such improper that admission the harmless-con- dimensions and tutional gun could not have affected the adopted Chapman. rule stitutional-error result.7 rigorous fashioning a Chapman I as read approximates test which of harmlessness Similarly, in the at case bar the control- very it purports rule stringency in its we, ling is appellate test not whether at the supplant. level, appellant disbelieve or find choose to Chapman ap- facts Application to the prosecution’s witnesses more believe- particular and in pearing in record this Equally are able. our individual irrelevant appellant’s legal issue whether impressions appellant’s guilt or concerning possession and sale to convictions of innocence, in fact a appellant that has requires lawful were minor December prior record, a retrial criminal will concurrence reference Harlan’s Justice costly it the state and carries with In this Bumper North Carolina.5 have been possibility evidence will Har- particularly opinion, relevant Justice interim or become more lost lan said: to marshall. These latter factors difficult determining a criminal de whether were policy considerations involve “according to convicted fendant was by Chapman’s harmless-constitu- resolved be sim law,” is not and cannot the test beyond the now tional-error rule and lie credible ply finds whether Crediting or against him. the evidence independent examination reach discrediting is the function of evidence conviction judiciaries the states. Prior fact, jury. in this trier of case evidence of crime not substantive is verdict, a lawful jury’s is verdict evidence, well impeachment as guilt. This upon evi however, only if it is based guilt, have dimin- as the accused’s belief When constitutionally admissible. dence all, at relevancy, relevance ished here, not, rests reversal is be- Chapman’s of harmlessness given test fundamental on the and most oldest short, can- I yond doubt. In a reasonable jurisprudence— principle of our criminal doubt beyond a reasonable not find put the that a entitled to defendant illegally seized the three state’s use of proof.6 prosecution its lawful affect possibly did not marijuana cigarettes opinion Harlan more In this same Justice relating Decem- jury’s verdicts precisely the contours articulated charges. I there- possession and ber 3 sale rule Chapman harmless-constitutional-error of these in the court’s concur reversal fore following manner: agreement all and am in counts two whether, in question cannot be But the opinion. aspects majority’s Court, other the defendant of this view 552, S.Ct., S.Ct., L.Ed.2d at 4. L.Ed.2d 6. Id. at Id. at at 804. at at 711. 553, S.Ct., 1794, at Id. 20 L.Ed.2d at L.Ed.2d 5. 391 88 S.Ct. NESBETT, tenced, (dissenting Chief of Sherri Meacham, Sergeant Cun- Justice part). ningham, Chief of Police Wellington, Lieu- Ciraulo, tenant and Rodney Pieren. The agree I appellant’s the search of only real conflict in was that apartment without a warrant on December created when testified that all must be held be invalid under witnesses, the above possible with the California, Chimel v. 89 S.Ct. exception officers, lying. 23 L.Ed.2d decided the Su- preme Court of the United States main thrust of the state’s case was June marijuana cigarettes of 1969. The three that of proving that appellant was illegally during were found of marijuana on December suppressed must be as evidence. Without and that on that date he sold the marijuana unlikely as evidence it is marijuana to Sherri Meacham. These two that charge proved can be on a retrial charged offenses were separate in counts in necessary which case it will be to dis- of the indictment. In a third and unrelated miss. count of the indictment, appellant was charged possession of mari- However, the fact that appellant’s con- juana on December 1967. The latter possession viction of the offense of of separated offense was a week in time from marijuana on December must be offenses, the December 3 occurred at a dif- not, my opinion, set aside in justify does ferent location in city Juneau, of and reversing appellant’s posses- convictions of proved was by evidence necessarily marijuana on sion December related to a place. different time and of selling marijuana a minor on jury separate made findings as each date, majority has done. alleged offense it as was instructed to do years are We concerned with man by the court. leading part age effecting took a in who presented There is no by reason marijuana year a sale of ato 16 old Juneau in record jury case doubt that the girl. By testimony appellant his own followed its instructions reached its Fresneda established that he had been separate verdict on each count of indict- possession marijuana in convicted of ment on the pertained evidence which Angeles plead guilty posses- in Los to. solely Nevertheless, count. in marijuana in sion in Nevada spite of the fact that nothing there is by which offense he a federal was sentenced any irregularity the record to indicate years prison, court to serve four function, jury majority equivocates marijuana again convicted says: say beyond a rea- “We cannot driving had two drunk convic- sonable doubt that introduction of the convictions, tions, two drunk one or three marijuana appellant’s apartment found conviction, joy riding and one conviction jury’s did not affect the determination of crim- records on his guilt falsification on the other two counts.” The result of majority’s holding is that inal record. appellant’s all convictions on three counts upon jury The facts which the convicted are to trial be reversed and a new ordered. of the sale of to Sherri trial, years original Almost two after the Meacham on attempt must to locate and state now date, possession marijuana on that produce for another trial all the six clearly testimony delineated key witnesses. If the state is unable prior a full to the search. occurred week produce key it certain witnesses testimony jury had before necessary charges. become dismiss the accomplice, appellant’s Hastings, James sen- plead guilty and had been necessary who had Even if the witnesses are located here, in will have This much has to be said order produced second trial unnecessary to redeem the law of from that only great Evidence reproach which rather to the belongs law expense to the state. sion order new applicable: Wigmore, made unlearn. misapplies make difficulties to be instrument for their criminal conduct.’ misplaced defeated. tested in criminal other; organic with such fatuous is lowered and their true [17 N.W. other tal ideals of be While cynically ignored as Again, People Murray, 52 Mich. lightly questioned as procedure and evidence it their business. A astute in hand the a great on the one hand certain or that it is the business law, the observations The 843] v. magnanimity their trials propensity ‘I do not cases, anymore than in political liberty have come ‘that epoch judicial interpreter play fast and loose with the (1883). Yet energies. constitutional connection punishment philanthropy and the discovery of technicalities Constitution understand,’ pro governmental obsolete, impracticable some courts This false sentiment of Professor with a discus- purposes their are invoked safeguards fundamen Cooley, they must ^[288] of Courts technical seem respect parties seems is such any 291 op the are J. unrealistic it otherwise marijuana lant’s could have under this state juana cigarettes helped $10 had ering lant, contradicted independent True, cigarettes which proved by marijuana ly because the logic requires leading of new trials.1 No was also placed sale events of December 3 be received from so rolled that he had week Sherri to her at the the search of December 10 principle of must now impressed accomplice Hastings to' before the role in cigarettes marijuana and carries found quite clearly only might Meacham at testimony of four offense of belonged to which he wrapped on him with the arranging be the have evidence, bowling alley, and had convictions justice December were found jury on held to guilty seized sale. December when established acquitted December 10 was assisted previously a the three three fact that three appellant. set bowling alley, To in a search impractical aside mere based be rendezvous 10 possession witnesses, reason spend the caused to presume, 3, him, illegal.2 appel appel deliv mari taken upon jury But is away; epoch passed pression has should the concern which law extreme has been rights its who anarchy observe for one taken individualistic independent separate convicted They learn the lesson place. must upon crimes substantial evidence. sym their emphasis of transferring the read than once pathies, lesson more con- intelligent average juror —a The fellow- by the voices of their own them oper- function jury Our entire scientious. au (Citing judiciary. jurors assumption members of will ates on the ** court. Since follow the instructions of thorities) *. However, opinion. (3d jority Wigmore, the United since ’375 ed. § Evidence at 1 Supreme 1940). restricted had Court States permissible a warrantless area of Calfiornia, v. in Chimel search was no doubt 2. The December 10 de- holdings which was legal 23 L.Ed.2d S.Ct. search under de- before our Supreme in United cided on June Court States United published, Rabinowitz, case in this cision U.S. v. States apply required (1950) new search we are 94 L.Ed. oc- to a search which of Chimel standards Harris United years ago. (1947) two curred almost then L.Ed. pages ma- 141-143 force. See night respect pre- same and with to the same record basis no there committing In rape victims. the crime of the events sumption jury that the confused boyfriend the rifle was used to sep- hold the its reaching transposed evidence bay girl while the was forced to undress have trusted to it must be verdicts arate rifle its submit. The was then used to according to its function performed fire bullets both of their The into bodies. court. from the directive proven to bullets were have been fired from affirm the convictions based I would by the rifle In obtained search. 3, 1967. the events of short, integral part the rifle was such an each evidence needed convict on dissent. Addendum to application count that the rule of rea- by easily sonable doubt could be understood dissent, on the reply to this inserted In opinion. a reader of the major- page decision, last its rule an- ity that under points out pos- case before us the crimes of Supreme of the Unit- nounced a minor session sale of Chapman ed States v. California1 separated on December 3 in time court held that a federal constitutional from the crime of com- week harmless, only the court is con- error is exists mitted December 10. No error beyond a reasonable doubt vinced the evidence ad- with relation to jury’s error did affect the determina- not prove mitted to the December offenses. its con- majority tion. then reiterates at a December 3 occurred The offenses of say beyond a reason- clusion that it cannot proved by dif- location and were different that the of the evi- able doubt admission testimony. ferent obtained jury’s determina- dence did not affect the in the search 10 was used on December proving the crimes of Decem- evidence in as tion all three of the counts. on separate jury made and distinct ber 3. The No discussion of the facts relation findings respect to each offense. supplied explain to the rule is which would indicate nothing There is the record to majority how the arrived at its conclusion. instructions jury did not follow its result, judicial of the As the benefit only the evi- from the and consider court reasoning majority engaged which the arriving applicable dence to each count denied to reaching before its conclusion is jury The verdict as to each count. its courts, bar, public and the as not make instructed that could in similar guide future cases. convinced finding guilt unless it was However, support its bare conclu as The beyond doubt. guilt a reasonable portion majority quotes sion finds, in court ef- majority of this now majority opinion of States Su the United fect, beyond a rea- that it is convinced not preme Bumper v. North Carolina.2 confuse, jury did sonable doubt my opinion, Bumper In is not relevant. relating transpose, misapply the evidence by Bumper the rifle obtained no ex- separate and furnishes dates in the commission search was used doubt. I planation of basis for its rape and both felonious the crime of the means which Circuit assaults. The rifle was think the statement of United States Judge Burger, able to now Chief the defendant was commit Warren. Justice in Pea v. United Burger, crimes. All the crimes were committed in his dissent and a half that: period within the of an hour when he said States U.S.App.D.C. F.2d 1. 386 L.Ed.2d U.S. 3.130 (1967). (1967). 710-711 2. 391 L.Ed.2d *

* * against are to trusted juries of the affirmative him guilty ly- much when return verdicts and the claim that the witnesses they set free. ing. jury obviouslyplaced as when an accused no credence Jur- in loco explanations ors do not need act in his judges to and denials would parentis. acquitted justifica- have him. is no There speculating tion disbe- jury that the applicable the matter before peculiarly mari- solely lieved because the this court. destroyed juana revealed credibility voluntarily when took fact he emphasizes the majority stand and established by and offered witness appellant took stand time testimony that a three con- own he was which was explanation for events charges explana- in the courts His loser his innocence. sistent with extent, years. tions, during preceding of denials large consisted to a

Case Details

Case Name: Fresneda v. State

Court Name: Alaska Supreme Court

Date Published: Aug 27, 1969

Citation: 458 P.2d 134

Docket Number: 1045

Court Abbreviation: Alaska