*1 155(c)(8), had a and that Hamilton criminal repeated
history of instances conduct laws, punisha-
viоlative of criminal whether misdemeanors, as similar in
ble felonies to the offense for which he
nature 12.55.155(c)(21). sentenced. AS aggravating
These factors were on based
hearsay evidence that Hamilton had com- prior sexual Hamil-
mitted two assaults. sentencing hearing
ton testified at the alleged he
denied that had committed these appears
prior assaults. Mi- placed great weight on
chalski the evidence prior
that Hamilton committed the as-
saults; twenty sentenced Hamilton to
years years suspended. with five Under circumstances, I quarrel
these no majority’s requiring more than hearsay presented
sentencing to show that commit- Hamilton prior
ted two assaults. am not confi-
dent, however, every case where the
defendant denies a material matter we require
should the state either to call a testify sentencing hearing
witness prove unavailability a witness using hearsay statements. I would
prefer case-by- resolve this issue important
case basis. It is for the trial have much reliable information sentencing when a defendant.
I am concerned that the rule which the may unduly
court announces in this case
restrict that information in other cases. RICKS, Appellant, Thomas Holland, Marcia E. Asst. Defend- Public er, Fairbanks, Fabe, and Dana Public De- Alaska, Appеllee.
STATE
fender, Anchorage,
appellant.
No. A-2377.
Woelber,
Gen.,
Tonja J.
Atty.
Asst.
Of-
Special
Appeals,
fice of
Prosecutions and
Appeals
Court of
of Alaska.
Schaible,
Anchorage,
Berg
Atty.
and Grace
April
Gen., Juneau,
appellee.
C.J.,
BRYNER,
Before
and COATS
SINGLETON,
JJ.
*2
subsequently charged
Ricks was
a
OPINION
sev-
VII, alleging
en-count indictment. Count
BRYNER,
Judge.
Chief
involving a
misconduct
controlled sub-
convicted, following
was
a
Thomas Ricks
degree,
stance
the fourth
was based on
trial,
four
of misconduct
jury
counts
possession
methamphet-
the
Ricks’
involving a controlled substance
the
pocket.
in his jacket
amines found
Ricks
degree
one count of misconduct
and
third
evidence,
suppress
arguing
moved to
involving
the
a controlled substance
that the warrantless search of his
degree.
appeal,
On
Ricks chal-
fourth
amounted to a violation of
constitution-
only
of his convictions: with
lenges
one
protection
right
against
al
to
unreasonable
respect to the count of misconduct involv-
and seizures.
ing
substance in the fourth
a controlled
evidentiary hearing on
sup-
An
Ricks’
superior
degree,
Ricks contends
Superior
pression motion was held before
sup-
denying
erred in
motion
Judge
At
Court
Richard D. Saveli.
press
We reverse.
evidence.
hearing,
sought
state
establish that
not disputed.
The relevant facts are
On
search of
was
22, 1987,
Troopers,
April
Alaska State
justified as
Ricks’
a search incident to
ar-
informant,
working through an undercover
evidentiary
At the conclusion of the
rest.
purchase drugs
arrangements
made
hearing, Judge
po-
Saveli found that when
in Delta
the Buffalo
from Ricks
Junction at
Bar
lice entered the Buffalo
and arrested
Bar,
employed as a bar-
where Ricks was
Ricks, “Mr.
Ricks was at least ten
fif-
troopers
tender.
secured a warrant
jacket,
feet
teen
was
еlectronically.
In
the transaction
record
him,
at no time after
not accessible to
and
informant,
addition to the
three undercover
[Bjecause
it
that was
accessible....
officers were stationed inside the bar dur-
that,
subsequent
and the ...
actions of all
ing the sale. Three additional officers re-
involved,
persons
there was no risk of
mained outside and monitored the transac-
destruction.”
tion.
Judge
Despite
finding,
Saveli went
initially met
Ricks
undercover
“it
on to conclude that
doesn’t matter
Ricks
informant at the bar.
then obtained
immediate
whether the
was
drugs
pocket
of his
some
presence and control of the defendant
hanging on coat
near the
which was
rack
commenced.”
when
search was
the infor-
and delivered
“prop-
Judge Saveli’s
mant.
Ricks
immediately associated with”
erty
upon
com-
As the informant left
bar
clothing
it
be-
because was
article
sale,
pletion
officers stationed
had had
longing to him and because he
Ricks was behind the bar.
outside entered.
Rely-
shortly
his arrest.
access to
Ricks,
immediately
officers
arrested
Two
court’s decision
primarily on this
away
him
from the bar to the back
moved
State, 1079-82
Dunn
saloon,
weap-
him for
and seаrched
(Alaska
ruled
App.1982),
Saveli
drugs.
ons
secured
and
other officers
immediately associated with
property
kept
patrons
on the
premises
watch
subjected
person, the
could be
people.
nine or ten
the bar—about
to Ricks’
search incident
a warrantless
after the
Approximately fifteen minutes
though
not in his imme-
even
it was
arrest
still
held at
while Ricks was
control when the
physical presence or
diate
saloon,
an officer retrieved
back
occurred:
jacket from the coat rack and asked
reasons,
the court
For those narrow
if it
his.
Ricks said thаt
When
motion,
hopes
but
going
deny
his,
officer searched its
that it
based
findings make it clear
pockets
quantity
of metham-
found
dilemma,
horns of a
strictly on the
phetamines.
ruling
makes—makes the
on the
narrow
ducted.
Id.
See also
item,
127, 132 (Alaska
1971).
basis that
as the
Thus,
describes,
immediately
law
asso-
warrantless search incident to arrest will
personal
normally
him.
ciated with
An article of
be limited to
arrest
ed and the
property
area within his
associated with
physical
McCoy,
him. It
under his
control.
immediate control
P.2d at
*3
132.
prior
entry
police, and,
to the
of the
therefore, could have
the
contained
evi-
State,
Dunn v.
P.2d at
653
1079-80.
permitted
dence which is
and associated
acknowledge
We went on to
in Dunn
It, clearly,
with the arrest.
was not un-
that the search
to
exception
incident
arrest
point
der his immediate control from that
However,
is flexible.
On
state does not
may
Thus,
incident to arrest
be conducted.
superior
the
court’s factual determination
in pointing out
flexibility,
the need for
we
that Ricks’
in
was not
his immediate
specifically
State,
cited
v.
presence or control at the
his
time of
ar-
1971),
(Alaska
proposition
for the
Instead,
urges
uphold
rest.
us to
exigencies
while the
justifying
dual
finding
the court’s
the
could be
searches incident to arrest limit the physi-
subjected
prop-
to a warrantless search as
cal
may
area in which a search
be conduct-
erty
associated with Ricks’
ed, they
necessarily
do not
limit the time
person.
however,
In our
the state’s
and circumstances in which the warrantless
argument
misinterpretation
is based on a
may
State,
search
be conducted.
v.
Dunn
our
in
of
v.
Dunn
State.
As we
excep-
out in
the
Dunn involved the
of
requirement
bag
tion
paper
warrant
pocket
found
jacket shortly
incident
is founded on
defendant's
after his arrest.
exigencies
placed
inherent
The
had been
arrest situa-
next to the seat
tion: the
personal
riding
need
assure the
van that the defendant
safe-
ty
arresting
when arrested.
officеrs and
need to
At the time the
searched,
prevent
seized and
the defendant from
defendant had al-
destroying evi-
ready been arrested and
exigencies
scope
dence. These
removed from the
limit the
van. He was held in
well
exception
away
restraints
the area within
imme-
passenger compartment,
the van’s
physical
diate
control of the defendant at
exigency
appeal,
and no
existed. On
the time of the arrest:
argued
of exigency
lack
A warrantless search incident to a law
search was commenced
permitted
ful arrest
assure the safe
rendеred the search incident to arrest ex-
ty
arresting
officers and to
avoid
.
ception inapplicable.
by
destruction of evidence
See, e.g.,
accused.
Chimel v.
Relying on
as on
McCoy, as well
Califor
nia,
U.S.
L.Ed.
subsequent
Supreme
Alaska
Court’s
deci-
(1969).
policies justi
2d 685
These dual
Anchorage,
sion in
exception
fying
(Alaska 1980),
re
argument,
warrant
rejected
we
quirement
emphasizing
search incident to arrest
exigencies governing
scope
serve
limit
also
of the war- a search incident to arrest must be viewed
properly
rantless search that can
be con
as of the time of thе
rather than as
from Dunn relied
specific language
Dunn
opened.
item is
time the
Thus,
case,
by
superior
we did
while
653 P.2d at
exigency
confusing,
at the time
does
admittedly potentially
lack of
find the
controlling:
Dunn,
to be
contrary
was commenced
In
warrant a
conclusion.
said,
part:
we
relevant
virtually no distinction be-
perceive
We
placement
of his
Dunn’s
tween
emerges
rule
leg
placement
left
next
govern
disposition
that must
law and
chair, as
of a
the back
over
may
of this case
be restated
follows:
instances,
McCoy. both
occurred
lawful,
upon
non-pretextual arrest of
clothing
in-
personal
articles
crime,
for a
evidence of
an individual
volved,
they were
the immediate
be concealed on the
which could
arrestee at the time
person,
clothing
arrestee’s
...
significant
not think it
We do
arrest.
which,
clothing,
akin to
are
and articles
being placed under arrest
Dunn
*4
immediately associated
rear of the van when
at the
may
at the
arrestee
be searched
The
and searched.
actually
seized
arrest,
time of the
or within a reasonable
are,
closely
respect,
in this
circumstances
long
period
As
the search
thereafter.
in
to those of Hinkel.
analogous
As
limits,
per-
is confined within these
Hinkel,
in
exigencies of the search
open
inspect
and
missible for officers
refer-
determined with
must be
any
of
closed containers
the contents
initially
Dunn
to the time that
ence
unless,
circumstances,
found,
under
into
to be
ordered from
van
taken
reasonably
be
that
could
believed
in
long
as the
As
custody.
weapon
yield a
the container would
Dunn’s immediate control
as he sat
the ar-
evidence of
crime
which
van,
important
it is not
that
Shelton’s
rest
made.
first
contents were
and its
Dunn,
P.2d at 1082.
custody
and
Dunn was
searched after
is
understand the context
important
gained
jack-
access to the
to “articles ...
in which Dunn’s reference
et.
person of
immediately associated with the
Dunn,
(emphasis
1082-83
add-
P.2d at
arrestee,”
have al-
was made. As we
ed).
observed,
relied
Dunn we
ready
clear, nothing in
passage makes
As this
McCoy Hinkel reject
contention
and
suggest
Dunn
was meant
must be
incident to arrest
can
exception
to arrest
search incident
existing
the time
by exigency
properly
applied
be
articles outside
commenced;
emphasized
is
we
the search
of
immediate reach
the defendаnt
viewed
exigencies must instead be
Dunn,
of the defendant’s arrest.
time
Dunn, of the arrest.
at the time
of
McCoy, Hinkel
all
searches
involved
point,
P.2d at 1080.
connection with
in the
by
worn
or were
articles
of
a line
necessary to address
we found it
of
defen-
physical
immediate
cases in
conflicting Alaska
potentially
of the arrest. Far
dant at
time
of certain
searches
which warrantless
scope of a warrantless
suggesting that the
had been
to arrest
incident
tainers seized
may
extended
incident to arrest
be
held invalid:
of a
immedi-
beyond the limits
defendant’s
apparent
between the
tension
There
sup-
control,
decisions all
physical
these
ate
Supreme
follow the
line
cases that
of
port
physical proximity
conclusion that
ruling
other cases
Court’s
conse-
time of the arrest —with
at the
of closed
which
safety
risk
destruc-
of
quent threat to
containers seized
which
requirement upon
defendant’s
the basic
tion—is
time
proximity at the
exception
to arrest
search incident
For ex-
found invalid.
arrest predicated.
ample,
sion motion. therefore be a weapon source for a on Count or for Ricks’ conviction VII was based that he destroy. evidence could evidence seized from his the con- Judge I understand say Saveli to viction must REVERSED. fact, a matter of the coat was within Ricks' preceding seconds
SINGLETON, J.,
abrupt entry
armed officers’
dissents.
into the
pointed
but that the
guns
officers
their
SINGLETON, Judge, dissenting.
and,
effect,
at Ricks
him in place
froze
so
get
that he
I
Having carefully
reviewed the record
Judge
would hold that
Saveli’s conclusion
case,
I believe that the
search Ricks’
was available to Ricks in the
First,
jacket was
two reasons.
preceding
seconds
his confrontation with
I am
prop-
convinced
the officers satisfies the immediate control
erly searched incident to his arrest. Sec-
requirement.
appears
Sa-
ond,
independent
itself is
evi-
gloss
veli’s
finding
on this
constituted a
eyewitness
dence of crime because
testimo-
misperception
legal
rules. See New
ny
established
Ricks obtained
Belton,
York v.
454, 457-60,
101
selling
preparatory
them
2860, 2862-64,
S.Ct.
(1981);
69
768
L.Ed.2d
to the confidential
Under
informant.
Chimel,
763,
2040;
395
U.S.
89 S.Ct. at
circumstances,
could have been
State,
Uptegraft
v.
5,
621 P.2d
9-10 & n. 13
seized and searched
if Ricks
even
(Alaska 1980); Hinkel,
this case is (9th Cir.1986). devoid 784 F.2d also 1431 See State v. inventory that an search of 412, Ricks' would (1986). Badgett, 160 200 Conn. 512 A.2d in fact have conducted been had the In order 1. to better understand the factual as- been searched at scene of the arrest. The dissent, sumptions helpful in this to look at state in effect asks us to that assume such A, diagram defendant’s a exhibit Buffalo searches are inevitable. In our Ricks, showing respective proof positions Bar has failed to respect its meet burden of with bar, machine, cooler, discovery cigarette to the inevitable doctrine.
1371
defen-
A number
confined to the
of factors lead me
must be
to arrest
“the area from which
or
dant’s
clusion that
matter of
[he]
as a
there
law
was a
evidentiary
weapons or
might obtain
significant
that
risk
Ricks could have
Chimel,
766,
89 S.Ct.
395 U.S. at
items.”
reached his
had he been motivated to
incident to a lawful
2041. A search
at
despite
guns.
so
do
the officers’ drawn
limited to the area where
must be
First,
placed
in restraint.
may
not be con-
arrest occurred.
Second, at
of the
the time
initial confronta-
place
“remote in time or
ducted somewhere
tion, Ricks
was behind
bar.
It does not
764,
Id.
at
89
at
the arrest.”
S.Ct.
appear that
any
arresting
officers
States,
(quoting Preston v.
United
2040
positioned in
a way
they
were
such
that
367,
881, 883,
364,
11
rack,
were between him and the coat
(1964)).
may
The area which
L.Ed.2d
Third,
virtually
at the end of the bar.
encompasses any place within
searched
question
pockets
the evidence in
was in the
reach,
“lunge,
grasp.”
or
defendant’s
jacket, readily
anyone
accessible to
LeBlanc,
590, 595
State v.
347 A.2d
See
holding
Finally, six officers
Howell
(Me.1975)
(quoting
attempting
people—
to control
eleven
(1974)). It
318 A.2d
is
Md.
patrons
All
likelihood, Ricks
ten
the bar.
risk,
probability or
not the
defendant,
motivated,
finding
if so
these reasons militаte
favor of a
that
which is determinative of
reach
item
that
was within Ricks’ immediate
person’s con-
area within the arrested
LaFave,
supra,
control. See W.
6.3(c),
§
imme-
trol. An item is within
arrestee’s
at 630-31.
significant
there is no
diate
unless
Although
question
in Ricks’ case is
confederates
risk that the arrestee
Hinkel,
closer
much
than that
it seems
gain
weapon or
“might
possession of a
supports
me that
also
Chimel, evidence.”
U.S.
destructible
ex-
Saveli’s conclusion
Alaska law
Thus,
it is the risk
89 S.Ct. at
cepts,
purposes
of search incident to an
conduct,
likeli-
not the
of the defendant’s
items
associated
hood,
of control.
which determines
area
re-
of the defendant from the
Uptegraft, (upholding
a
quirement
they be
his immedi-
within
though “it
incident to arrest even
is
ate control at
of the search.
[only]
speculate
that there was
Hinkel,
Hink-
Reading
1071.2
618 P.2d at
suspects
one
a small likelihood that
me
McCoy
el
together,
seems to
car
leap
have
able to
into the
supreme
saying
is
weapon.”)
court
obtain
majority’s suggestion
copy of
access at the
coat
I have attached a
2. The
rack.
dissenting opin-
exhibit as an
to this
addendum
moment of arrest validates a search conducted
may
drawing
time,
is not
scale and
disap-
ion. This
exaggerate
exigencies
all
at a later
after
photo-
the distances involved.
supreme
peared,
problematical.
court
quali-
poor
graphs
introduced
evidence are
specifically say this
does not
in either
Nevertheless, they appear
ty.
indicate that
Hinkel, although
in Dunn. The
we intimated it
end
bar to the
the distance from the
supreme
specifical-
only case which the
very
cigarette
the dia-
short. On
machine
exigencies
ly
at the time of an arrest
held that
gram,
position,
behind
is marked
search,
exigencies
justify
after the
later
parallel lines
"1" and the coat rack is shown as
disappeared,
However,
Daygee,
4. The view. An officers to leave bar without fear that taking drugs undercover officer observed Ricks might Ricks’ confederates recover the at a out of for sale to the informer. Thus time. later warranting independent evidence discussed, justifications its seizure. As