Newhall v. State

holding, recognize air- we circumstances an In so the force of and under what how longer argument may impor- it is no the state’s that it be strip may be closed so that landing private to maintain airfields for the tant small or intended for use “used throughout the state which are free of Arguably, take-off aircraft.” emergency. is obstructions case of We the area person determines whether who strong landing recognize may that state have intended use for “used or for requiring notify interest a landowner to the landowner. take-off of aircraft” is public of actions which he takes with during the Magnuson has decided that Mr. airstrip. has land that been used as an months, question is not area winter However, state, by regula- statute or During this time it airstrip. as an to serve tion, give clear notice as landowner use longer intended for is no to be “used or legal illegal. By conduct is to what landing aircraft.” and take-off of for preclude we do our decision not intend to statute, he can as Arguably, do this. charging person the state from who ob- stands, currently sufficiently clear is not it airport runway an under structs or AS say Magnuson’s con- can so we person engages if that 02.20.050 “hard- criminal 02.20.050. under AS duct core conduct” statute. under See can a landowner The state contends that 1974). (Alaska 526 P.2d 3 Stock airport by an “X” on private placing close a free to The state is amend the statute or seemingly runway. argument This is regulations give per- enact which would with concession inconsistent the state’s Magnuson’s position son notice as to runway close the may that a landowner not may may engage he what conduct or not machinery or other by putting barrels or under AS 02.20.050. also do not intend We However, runway. on the obstructions preclude prosecuting the state haz- agrees that a could build a state landowner ardous conduct under statutes.1 other trees, house, plant a business on the or run The conviction REVERSED. runway. A took these ac- landowner who certainly placing obstruc- tions would airstrip. does not

tions on the The statute

clearly specify the landowner when or how airstrip legally as

could obstruct closing Again, we do not

means it. sufficiently clear statute is Magnuson’s conduct.

so as criminalize clearly Magnuson’s intent was Here Nina NEWHALL and Patrick J. using prevent certain traffic from an other- Newhall, Appellants, R. airstrip to restrict the operational or wise operational airstrip limited use of an Instead, undisputed time. it is periods of Alaska, Appellee. STATE Magnuson’s close the intent was to airstrip entirely period approxi- for a No. A-4194. mately During months. this time the six clearly not “used or intend- land was to be Appeals of Alaska. landing take-off of for use for ed Dec. accordingly We hold that aircraft.” stands, statute, currently does not as Magnuson’s We conclude

reach conduct. failing Judge Crutchfield erred Magnuson’s to dismiss.

grant motion instance, endangerment person circumstances the of reckless ly engages reckless- 1. For under some may charge be able to a defendant in conduct which creates a substan- state endangerment injury physical 11.41.250. to another under AS tial risk of serious reckless statute, person person." "a crime commits the Under that McConnaughy, Anchorage, E.

John for Newhall. appellant Nina J. Thomas, Larson,

H. Conner Timbers & Winkle, Nome, appellant for Van Patrick Newhall. R. Johnson, Gen., Atty.

Eric A. Asst. Office Appeals, An- Special Prosecutions and Cole, Gen., chorage, Atty. E. and Charles Juneau, appellee. BRYNER, C.J.,

Before and COATS and MANNHEIMER, JJ.

OPINION COATS, Judge. Newhall were convict-

Nina Patrick contest, ed, upon pleas no their involving a controlled sub- misconduct degree, C a class felo- fourth stance 11.71.040(a)(2). entering their ny. AS right pleas, the Newhalls reserved Superior Judge Charles Tun- appeal suppression motion. ley’s denial of (Alaska State, 524 P.2d 1251 Cooksey v. 1974). We remand. following

Judge Tunley made the find- denying mo- fact in the Newhalls’ ings of suppress. On June Alaska tion to ap- Trooper Donald Kitchenmaster State Bradley Gater. Magistrate peared before for a war- applied Trooper Kitchenmaster brought which he to search a box rant he had observed a He found a magistrate. box bottle. with him to inches. which contained 375 milliliters of Ca- by ten seven bottle inches inches six whiskey. According trial nadian Club magistrate told Trooper Kitchenmaster court: 1990, personnel from on June Department Airlines Gold Alaska Streak He then the second Alaska, Anchorage, telephoned Alaska box, being wrapped in such also Trooper Roy report a sus- Minatra State newspaper, being light, and com- soft personnel informed picious package. The pressible. package Inside were two this Trooper they Minatra had received Wrap. packages wrapped in other Saran box, identified package, which was green Trooper Kitchenmaster observed a containing pounds of the invoice as two marijua- he assumed was substance appear package na_ did not parts, but opening pack- the second When package made parts to contain because Trooper testified age, Kitchenmaster or sound it moved an unusual when was alcohol, that he knew did not contain up. personnel The stated that picked assuming feel there- weight from and package by Streak had sent Gold drugs some sort. of that it contained Kulowiye in Anchorage to defendant Sa- Alaska, voonga, June Trooper Kitchenmaster assumed this that as a Trooper Kitchenmaster testified package drugs of some second contained receiving he went this information result type. stronger I find this conclusion Nome, Alaska terminal in to the Airlines requirement than the cause dis- Alaska, employee there and asked an State, in Reeves cussed [Reeves she had received a Gold Streak whether (Alaska 1979).] The P.2d and told package. employee The cheeked cost, package sent was at a considerable trooper that had received a box. she clearly i.e. It did not contain that $31.00. employee Trooper Kitchenmaster told the invoice, i.e., Only a parts. noted on the contraband. possibly that the box contained pursu- found small bottle alcohol was employee trooper told that the box The Trooper Kitchen- ant warrant. parts, feel like did not it contained manipulate the second master stated, “Why x-ray package.” don’t I package pursuant to de- to the warrant “it Trooper responded that Kitchenmaster termine whether it contained alcohol. put might good employee The idea.” weight package light The was and the screening x-ray in an device box Trooper was soft. Kitchenmaster he Trooper Kitchenmaster saw what trooper experience years of 20 been liquor like thought looked bottle. in over a half and had been involved drugs being involving cases dozen by Trooper testimony on this Based in the shipped. Contraband was found Kitchenmaster, magistrate prob- found i.e., I package, alcohol. Based thereon cause to believe that the box contained able present find and conclude that Savoonga in being sent viola- alcohol into case, ample presented to evidence was law, option issued a of the local nature of establish contraband troop- warrant which authorized search package the box the second seized from magistrate er to search for alcohol. immediately to the officer apparent explicitly stated that he found it, Trooper who seized Kitchenmaster. x-ray considering any of the without cause pack- opened Trooper evidence. Kitchenmaster finding marijuana. Judge Tunley up- age, opened the Trooper Kitchenmaster then search. held the smaller the box were two box. Inside newspaper. case autho wrapped each The warrant packages, Since package to search for alcohol. rized the Trooper Kitchenmaster device, sec- Kitchenmaster knew that the which, screening x-ray with the alcohol, thority under the warrant to search the package did not contain ond package marijuana which contained he any provide him au- did not warrant the package could not search which con- 2 W. thority package. La- search marijuana merely tained he had because Seizure, 4.10(d) Fave, Search and § probable cause. (2d 1987) (footnotes omitted). ed. 329-30 State, (Alas- P.2d 251 See Anderson Trooper Kitchenmaster could search 1976). ka package only the second if its contents were in view. This is the police may general, the. Tunley Judge applied upholding This without a warrant. search, relying on Reeves v. though true even have abun (Alaska 1979). In that dant cause to case, a correctional officer who was con A case package contains contraband. illus ducting preincarceration inventory a search trating this principle is Erickson v. of Reeves discovered a balloon Reeves’ case, (Alaska 1973). 507 P.2d 508 In that Id. at 730. pocket. The correctional offi brought citizen informant the defendant’s unwrapped cer the balloon and discovered a police to and told the suitcase the station powdery substance. The brownish-colored marijua suitcase police the contained police correctional officer called the who actually The had seen the na. informant balloon, it, took the tested and found that it place marijuana the in the suit defendant Id. illegal opium contained an derivative. opened The the suitcase and police case. argued The offi state that the correctional marijuana. the The defendant found properly cer the seize balloon up court suppress, moved but the trial “plain search contents it was in its because supreme appeal, held search. On supreme The stated that view.” court rejected that “abundant court requirements “recognized had three basic negates the need for a probable cause ‘plain view’ of valid seizure evidence: Id. at 512. The supreme search warrant.” (1) the initial intrusion which afforded the no the informant had au court noted that lawful; (2) the view must have been discov open thority police to authorize the ery of evidence must have been inad Although the infor defendant’s suitcase. vertent; (3) incriminating nature of marijuana immediately mant seen the suit the evidence have been omitted). case, ap (footnote Id. supreme quoted apparent.” court at 738 People California, v. v. But see Horton proval opinion Justice Trainer’s 2301, 128, (1990). 110 L.Ed.2d 112 110 S.Ct. Marshall: in Reeves supreme The court found inherently impossible for the con- It is “the incrimina question turned on whether opaque tents of a closed container to be ting of the immedi evidence [was] plain regardless of the size view Reeves, ately P.2d at 738- apparent.” made or the material it is of. container 39. The court stated: necessary to search of the container is A certainty rather is not but [I]t contents. disclose its required justify plain is cause which Erickson, (quoting People P.2d at 513 Therefore, question view seizure. 585, Marshall, 51, Cal.Rptr. 69 Cal.2d posed in the context this case precisely 665, (1968)). officer’s sei- is whether the correctional was based zure search the balloon supreme that when the court found prior judgment on his reasonable suitcase, opened they had con- police contra- the balloon contained seizure that illegal under the ducted a search which was band, that belief and whether States Fourth Amendment the United upon probable cause.... grounded Erickson, 507 P.2d Constitution. quality apparent Thus, opaque to us that It therefore seems while preclude have balloon does did not au- Kitchenmaster here, coupled experience with Officer Lewis’ we must determine whether seizure testimony unequivocal regarding officers’ seizure was his the correctional making recognition In of the contraband nature of cause. determination, packet, the foil convinces us that both we consider the correc- packet of the testimony suppres- at the the search and seizure tional officers’ hearing totality as well as the were lawful.... sion in which this seizure oc- circumstances omitted). (footnotes at 847 Id. The state bears the burden of curred. Erickson, Under we know that the appear by pre- it must proof and thus open package they even if the sei- ponderance of the evidence that have abundant cause. We also of the balloon in this zure and search know that if the find a movable requisite prob- supported case was view, they and if have container cause. able probable cause to that the container (footnotes omitted). at 739-40 Id. contraband, police may contains seize Reeves, majority temporarily the item until obtain a the correctional officer’s court reviewed warrant. Texas U.S. testimony and concluded that “he (1983). 103 S.Ct. 75 L.Ed.2d 502 and examined its contents not balloon question determining The difficult when contraband, because he believed to be police the have sufficient information to pursuant simply but to the standard inven- opaque as look into an container the Su (foot- tory jail.” at 740 routine at Id. preme Court of Alaska authorized in omitted).1 note Schraff Judge Tunley also relied on v. key question Schraff to this We believe 834, (Alaska 1975). In 544 P.2d is found in a footnote in Arkansas Sand- Schraff, police packet a officer found a foil 753, ers, 442 U.S. 61 L.Ed.2d S.Ct. suspect’s in a wallet. The officer seized case, (1979). In that the United States packet it. The the foil Supreme held that Court automobile upheld court the search. The court stated: exception police did not authorize the to they case, Lewis, search a suitcase which found present

In the a Officer trunk of a taxicab. The Court reasoned investigator, trained narcotics testified police only that since the had packet that the foil was identical to so- suitcase, ‘slips’ carry cause to search the rather than called which are used to a car, drugs. exemption variety of illicit He was certain the entire the automobile packet ‘slip’, apply. a and he of did not The search the suitcase ‘slip’that Fourth never seen a was not used for without a warrant violated the footnote, carrying dangerous drugs. Amendment. In the narcotics the Sanders holding He therefore concluded that the foil un- limited its as follows: Court doubtedly drugs. contained illicit packages Not all containers and found addition, package firmly police during by

In was not the course of a police custody protection at the time it was will the full within deserve Instead, person Thus, it was on' the the Fourth Amendment. some seized. bar, public accompa- (for example burglar a man who was a containers a kit of friend, case) by relatively gun by very coherent nied who tools or seemingly support any expecta- had access to an automobile. reasonable situation, Thus, exigency when tion of because their contents ately apparent. Boochever and Justices Boochever and Mat- 1. Justices Matthews dissented. They agreed majority’s with the statement of the thews stated that would have remanded the requirements view seizure and also hearing upon case for a further these determining with the test for whether the in- Reeves, P.2d at standards. criminating nature of the evidence was immedi- ap- gation yield particular will results —suf- from their outward can be inferred exempt the seizure from Fourth some cases the fices Similarly, in pearance. requirements. Amendment warrant In open will be package contents of obviating present type of the informa- view,” the need situation thereby “plain ‘plain good enough must tion view’ be for warrant. need for to eliminate all additional search Sanders, n. 99 S.Ct. 764-65 activity. only This can occur when sen- n. 13. at 2593 acquired sory information the officer its footnote and LaFave discusses this certitude, to a state of rather than rises LaFave, W. at 3 application in other cases regard prediction, object mere (2nd Seizure, 7.2(d) at 66-74 Search and § investigation. This level convic- n 1987). points out that the test LaFave ed. objectively reasonable apply will Supreme light past experience of the officer’s However, he con- cases is uncertain. these training, capable of aby verification support cludes that the cases do reviewing court. only proba- police need conclusion that (footnote omitted). at 1184-85 Id. say they can cause before ble can be inferred contents of a container appears It under therefore appearance. Id. at 70-71. from its outward Fourth Amendment the United States Williams, F.2d United States may open a officer Constitution (D.C.Cir.1987), under the pointed out that: court contents of the container were identifi certainty.2 are to a virtual able repeatedly held Supreme] Court has [The required to have more than cause to believe that cause package; inspect the contents in a holds contraband— container vehicle package only can search the when officer effect, probable to seize the cause has which officer “rises the information justify not a warrantless container—will certitude, than state of rather mere to a opening thereof. Williams, F.2d at 1184- prediction[.]” 822 The court concluded that: Williams 85. package cannot be contents [T]he plain case, in unless informa- deciding appears deemed view In that [the to the convinces applied probable tion available cause Judge Tunley officer] certainty that the officer to reasonable court set forth test which the permits or evi- the container holds contraband To extent that Reeves Reeves.3 crime. This situation is clear- based on police dence of a to seize contraband involving cause, is consis ly distinguishable probable from one the Reeves case Brown, 460 cause—a law. Texas v. plain seizure. Probable tent with federal view 1535, 730, L.Ed.2d 502. S.Ct. 75 predictive judgment that further investi- U.S. 750-51, Brown, appearance.’” Id. 103 S.Ct. Su- at three Justices of the outward 2. In Texas Sanders, question preme (quoting when the at n. Court addressed the 442 U.S. 764-65 at 1548. 13.) 13, search container under the They could n. also stated the 99 S.Ct. at 2593 exception requirement. to the warrant view ”[v]iewing he did it where test as follows: 747-51, The 460 U.S. at 103 S.Ct. 1546-48. given degree certainty that have the officer seizing green Brown case involved an officer equivalent of the heroin interior balloon which the officer found 751, Brown, 103 S.Ct. at 460 U.S. at itself.” Stevens, Brennan, and car. Justices of Brown’s "there was vir- The that court concluded that could search the Marshall stated the officer certainty con- balloon contained a tual limit- the balloon under certain contents of trolled substance.” Id. Justices ed circumstances. These stated balloon “the balloon officer could however, recognize, Judge Tunley did 3. We single-purpose con- could be one of those rare say conclusion Kitchenmaster’s 'by very sup- tainers port any their stronger "a conclusion than expectation be- reasonable Reeves_” requirement discussed in cause inferred their cause contents can be three-justice dard articulated concur- However, that Reeves autho- the extent 730, 747- a closed container rence Texas v. to search rizes 1535, 1546-48, 51, it is not consistent cause 103 S.Ct. 75 L.Ed.2d on (1983). Although I three of these federal law.4 view all with making essentially point the same cases as event, po- federal law the under any slightly language, different I find the under the may open lice v. Brown concurrence the most lucid Texas merely on theory based plain view explanation. apply the federal stan- We cause. deciding rights Newhalls’ under dard of the in Texas The formulation standard Amendment to the United the Fourth compatible particularly seems v. Brown accordingly re- We Constitution. States apparency immediate the notion of Judge Tunley apply this case mand recently addressed in this court to the facts of this standard the federal 421, (Alas- P.2d 423-24 Brown v. jurisdiction. retain case.5 We Supreme the Alaska App.1991), ka and that State, 599 addressed in Reeves v. REMANDED. 727, (Alaska 1979). Although 728-40 majority opinion in Reeves dicta BRYNER, C.J., concurs. the distinction between somewhat blurred searches, I do not plain view seizures and BRYNER, Judge, concurring. Chief with this that Reeves is inconsistent in, with, agree join I Although reasons, pre- For these I would standard. decision, separately I to add write court’s concur- rely fer to on the Texas v. Brown First, opinion re- points. the court’s three ap- describing the standard to be rence as Sanders, 442 heavily on Arkansas v. lies plied on remand. 2586, 13, 764 n. 99 S.Ct. U.S. Second, opinion simply while the court’s (1979), and United L.Ed.2d 235 “federal application remands Williams, F.2d States standard,” my I make it clear that would (D.C.Cir.1987), formulating n.& 113 to follow this standard is based decision trial that we ask the “federal standard” law, is, on the constitutional state opinion apply on remand. court provisions guarantee- Alaska Constitution’s secondary mention to the stan- gives only immediately apparent from Brown was case involved the seized 4. note that the Reeves We which contained Drew and search of a balloon who seized it. [Officer] seizure drugs. to the officer deciding possible the case object It is that in that Brown swallow an saw [Inmate] by the fact court was influenced the [by just a been handed to him visitor] those rare sin- a "balloon could be one of that facility. during at a correctional a contact visit very na- gle-purpose containers which their circumstances, immediately Drew Under the expectation support any reasonable ture cannot object recognized Brown swallowed can be in- privacy because their contents of probably This likeli- contained contraband. appearance.” their outward ferred Brown, object when the hood was reinforced 750-51, 103 S.Ct. at 1548 460 U.S. at proved to be a balloon. Both retrieved and J., (Stevens, concurring). See also Brown v. Trooper testi- the Alaska State ... Drew and (Alaska State, App.1991). 809 P.2d that, training expe- upon and their fied rience, they of the were aware that balloons evaluating Kitchenmas- whether 5. commonly concerning the used to type the contents of swallowed are information Brown ter’s certitude,”- Judge Accordingly, package Tunley carry illegal drugs. rose "to a state of under both properly Reeves, the circum- consider appears plain it Schraff view trooper the at the time stances known to requirement exception to the warrant State, we held that a cor- In Brown v. search. opening justified of the bal- the seizure and circum- could consider rectional officer this case. loon in a balloon in con- under which he saw stances cluding States v. See also United Id. at 423-24. "immediately apparent” it was Williams, (D.C.Cir.1987); 3 F.2d that the balloon con- the correctional officer Seizure, LaFave, 7.2(d) at 71- § W. Search Brown, drugs. 809 P.2d at 423. tained presented [A]mple to establish evidence was nature of the balloon the contraband ceases, plain searches tents of the container and the ing from unreasonable freedom open- doctrine allows view its warrantless right privacy. and seizures and obtained, Const, not, ing; if a warrant must be or I, 14, 22. es- Our Alaska art. §§ recognized exception to some other the “federal standard” should pousal of requirement purposes warrant shown. For not, not, and, view, hinge its my on does plain doctrine, it matters little of view viability under feder- or future current sound, smell, sight, if observations involve al constitution. feel, provided properly or are Third, proper applica- regard to the separate made do not result from viola- standard,” I would tion of “federal requirement. of tions the warrant against placing of un- raise a note caution It is crucial to draw the distinction be- certainty degree of emphasis due on as transparency, of literal tween notion proper sole of a warrantless determinant hand, the one and mere increase in the on high degree of certain- Although search. degree certainty presence of to the of as presence may of ty to the contraband as contraband, on the When a other. closed prerequisite container, to a warrantless well be by its nature and the circum- use, closed, surrounding capable is opaque container under stances its of search of legitimate simultaneously holding arti- doctrine, both is not the plain view contraband, highest cles and even de- Supreme- the Alaska prerequisite. As certainty present of is gree that contraband v. Court made clear Erickson plain equivalent not be to a view of its will 1973), (Alaska even “abun- pres- contents. In such case the certain negate the dant cause” does not of itself extin- ence contraband cannot requirement. warrant right expect guish the continued owner’s or of Degree certainty, of level contents, may as privacy to other which cause, not in and of itself sufficient. is paradigm A of this legitimate. situation is require- Erickson, The core concern of warrant the suitcase warrantless Brown, Supreme of the Alaska privacy. opening As Texas v. Ar- ment is plain justify refused to under the Sanders, States v. kansas United doctrine, despite heightened level of view establish, excep- Williams 507 P.2d 513-14. cause. tion founded that there can is expectation privacy be no reasonable This distinction between virtual observa- of a contents and increased when contraband is view. It is container’s presence of certainty contraband as this reason that doctrine allows refer- Stevens’ lies at heart Justice opening properly seized warrantless ence, “single-pur- Texas a plastic as a bottle or container —such very ‘by containers which their pose bag transparent and unmistak- —which any expectation support reasonable ably reveals its contents to be contraband. contents can be privacy because person No reasonable could maintain ” appearance.’ their outward inferred from con- any vestige remains (em- 750-51, U.S. at 103 S.Ct. at tainer. added) (quoting v. Sand- phasis Arkansas same must control when ers, This rationale at 764-65 99 S.Ct. at U.S. 13). I must honor believe we view doctrine to 2593-94 n. the state invokes drifting if we to avoid distinction are opening of a con- justify the warrantless moorings away from sound transpar- rather than opaque, tainer that doctrine, into uncharted waters of pivotal inquiry must be whether ent. The vast cause—waters “super” unopened container observation of entire re- enough engulf warrant virtual, literal, to a observa- amounts quirement. “equivalent to the its contents—an itself.” Tex- plain view [the contraband] at

as v. S.Ct. exists, equivalency all rea-

1548. If such con- expectation

sonable

Case Details

Case Name: Newhall v. State

Court Name: Court of Appeals of Alaska

Date Published: Dec 31, 1992

Citation: 843 P.2d 1254

Docket Number: A-4194

Court Abbreviation: Alaska Ct. App.