Schraff v. State

car had been removed from the ditch and Mannheimer, David Atty., Asst. Dist. placed parking in the 49’er lot. Club’s Chandler, Catherine Atty., A. Dist. Fair- then two men had entered the club to banks, Gorsuch, Gen., Atty. Norman C. Ju- up.” complaints “sober No had been neau, appellee. lodged against by anyone them at the time Before RABINOWITZ, J., C. and Trooper Ahlfors entered the bar. BOOCHEVER, CONNOR and JJ. trooper allegedly told the bartender not to allow the two men drive until OPINION sober, proceeded were and then he CONNOR, Justice. parking lot to their vehicle.” “secure brings appeal point R. Schraff At this somewhat facts become James seeking reversal of pos- hazy. conviction for more Constitution, I, 1. The Fourth Amendment the United The Alaska Article Sec. provides: States Constitution states : right people “The of the to be secure people persons, property, “The to be secure in their houses and other persons, houses, papers, effects, papers, effects, against their unreasonable against seizures, seizures, unreasonable searches and searches and shall not be violated. violated, issue, upon probable shall not be and no Warrants No warrants shall but issue, upon probable sup- cause, supported affirmation, cause, shall but oath or ported by affirmation, particu- particularly describing place Oath or larly describing place searched, searched, persons things to be and the or persons things and the to be seized.” seized.” responded brief, allegedly I.D.” when some Schraff state’s According to the phrase, problem.” he no- with nebulous “No vehicle Trooper reached Alfhors the igni- still in keys were that the ticed produce any But himself did not in to reached he that when It is said tion. Instead, time. identification Jones quantity of keys noticed he remove pocket and reached into back time, the At the floor. marijuana on Investigator handed Schraff’s wallet contacted asserts, Trooper Alhfors state proceed- took the wallet and Lewis. Lewis Lewis of Investigator Charles narcotics go alleged through ed to reason Troopers. State Alaska finding an identification card. Investigator Lewis However, under oath flipped through Lewis testified he discovering the mari- after testified that cellophane slots until he found a card with Trooper Ahlfors then floor, juana on complete At he point identification. approximate- “bag containing discovered directly plastic panel clear noticed the suspected marijuana ly of 20 ounces a “folded across from the identification Only at that of vehicle.” back seat packet.” aluminum foil testified, did Investigator Lewis point, experience past testified that his Lewis Trooper contact him.2 Ahlfors packet opaque him this lead to believe that any Trooper Ahlfors called event He therefore seized contained narcotics. approxi- Investigator Lewis narcotics packet and the wallet removed Lewis re- mately a.m. At time 2:00 panel open up. proceeded and to it Inside personal call, he his own ceived powder he discovered white which was car, evening. driving home for subsequently to At determined be cocaine. point asked and to Club, he Schraff Investi- Upon arriving at the 49’er Jones accompany policeheadquarters. him to and gator also noticed Schraff Lewis Jones state. He seemingly “intoxicated” indicted for subsequently Schraff was Trooper and then fo- with Ahlfors talked possession He of then moved to cocaine. and on Schraff investigation cused his suppress was seized the evidence which con- There were no alcoholic alone. Hepp from his Judge wallet. Everett W. Jones no smell near the men and of tainers two Superior of the Fairbanks Court denied vicinity. alcohol in their guilty Schraff's motion found him and possession ruling this of cocaine. From Investigator first talked with Lewis conviction, appeals. and Schraff appeared “he more because to Jones coherent of he was inves- two.” Since II. act, tigating possible Lewis ad- criminal Appellant challenges legality Schraff rights. his then interro- vised He Jones and his Officer Lewis’ search seizure of ownership gated concerning Jones wallet, packet foil and the contained there- marijuana and found car therein. He contends that this conduct violated in. this, After went Investigator Lewis over right his be free from to “unreasonable” appellant ap- to Schraff Schraff. Because under searches and seizures the United peared incapable comprehending his le- States and Alaska Constitutions. gal rights, gave Lewis him no Miranda appellant specifically, More raises the warnings. Lewis then asked Schraff following questions: three or three identification two times. presented respond. Under the facts did Offi- (1) At time Schraff did any right cer Lewis have search and up allegedly to came to and Schraff Jones appellant’s seize wallet ? appellant Jim, said to show him “Come charges marijuana relating au- found It unknown us whether either Schraff tomobile. or Jones was ever tried convicted on right Thus, assuming have a Lewis’ officer did conduct can If the (2) wallet, necessary seizure, regarded as a search his Miranda state such falls give must establish that conduct to first him commencing require- the within an the warrant warnings before ment. search ? question A has presented regarding Offi- been raised facts did Under the

(3) quantum proof must to seize the state cer produce packet proof. discov- meet which he its burden of the foil Supreme United States Court has not ad wallet? ered inside Schraff’s point regard dressed this searches III. However, in Lego seizures. Twom 477, 487-89, ey, and Search the Seizure A. Was of L.Ed.2d the court ruled that Wallet Lawful? Schraffs government prove must the voluntari as and frustrations difficulties ness of preponderance confessions analysis of “search sociated with the evidence.4 Nev seizure” law often have been noted.3 The Ninth Circuit “prepon- has used the ertheless, “polar appears to be a there derance” test govern- cases where the guidance in star” which offers some sought ment to justify searches and sei- field. In Katz v. United zures grounds on other than consent. See 357, 347, 507, 576 88 S.Ct. 19 L.Ed.2d Marshall, United States v. 1169, 488 F.2d (1967), that warrantless stated Court (9th 1186 1973); United States v. “per unless searches are se unreasonable” Cales, 1215, 493 (9th F.2d 1216 Cir. 1974). exception recognized fit within a present case, the state does not requirement. starting the warrant This claim that Schraff consented to the search. point New Coolidge was reiterated in v. Indeed, undisputed facts it make abun 454-55, Hampshire, 443, 403 U.S. 91 S.Ct. dantly appellant clear that was in no condi 2022, 29 564 are L.Ed.2d we “freely tion to and voluntarily” consent to squarely adopting mode record that anything. See Schneckloth Bustamonte, v. analysis. Erickson 507 P.2d v. 218, 222-24, 412 U.S. 2041, 36 L. 508,514 1973). Ed.2d (1973). Since the consent ex dispute There is no that Officer Lewis’ ception to the warrant rule unargued is perusal appellant’s wallet was conducted inappropriate, we conclude that without a search warrant. Warrantless state by must convince a preponderance us per searches unreasonable, are se “subject of the evidence that its conduct satisfies only to a specifically few established and exception some to the warrant requirement. exceptions.” Katz, supra, well-delineated principles With mind, these proceed we 357, 389 U.S. at at 514. These ex- S.Ct. an analysis of the case at bar. ceptions “jealously carefully been (1) Was there a search of Schraff’s drawn,” States, Jones v. United 357 U.S. wallet ? 493, 499, S.Ct. L.Ed.2d 1514 (1958), and upon the burden falls state At the outset it must be determined prove that “the exigencies situa- perusal whether Lewis’ tion imperative.” made the course Cool- wallet a If it Schraff’s search at all. idge Hampshire, 443, 455, v. New 403 U.S. not, then course constitutional 91 S.Ct. 2022, (1971). L.Ed.2d 564 claims would abate. See, g., F.Supp. Caldwell, e. Lowe v. analysis Lego de- For an extensive (S.D.Ga.1973). Watson, States 469 F.2d cision see United 1972). near a motor vehicle at the time of Weltz following search. At

(Alaska 1967), reiterated the least one court has held we that a licensing used for a search: statute cannot be definition of purpose is, of finding who a defendant out prying implies “A a into hidden been, where he has going. or where he is places concealed words, In other licensing statute cannot object for has searched been obtaining used as a means for informa- intentionally put way. hidden out of tion or licensing evidence related to the not ordinarily said that it has been While requirement. Harr, People Ill.App.2d sight, searching is a function of it is (1968). N.E.2d Under generally looking that the mere held case, facts of this reliance on state’s open to view is not a which is totally misplaced. AS 28.15.090is ‘search’.” [Footnote omitted.] through person’s Certainly riffling wallet argues The state also that since wal- are contents which unobservable from actually let was taken from Schraff fits this outside the wallet definition of Jones, private citizen, the state commit- search. ted no seizure and did not hence violate preclude state offers two theories to rights.6 constitutional having handling Lewis’ It established is well of the wallet under an apply to the Fourth Amendment does theory persua- warrant rule. Neither act private without acts individuals who sive. Burdeau government involvement. First, urges that, pursuant the state McDowell, 256 U.S. 28.15.090, to AS the officer had if a federal But 65 L.Ed. 1048 demand Schraff’s identification. The stat search, then the agent participates in the provides: ute court. in federal evidence cannot be used “Every licensee shall have his operator’s 28, 47 S. Byars v. United possession license immediate at all Likewise, if (1927). Ct. L.Ed. times when operating a motor vehicle search, no agent participates a state display upon shall it the demand of brought. Elkins prosecution can be federal any peace uniformed officer or autho- States, United representative rized department of the Since Offi 4 L.Ed.2d 1669 who identifies himself as (em- such.” phasis in this added) clearly participated cer Lewis case federal search, no it is certain that unequivocal establishing The record is these facts. brought under could have been that even operating was not or authority as ‘mu- defined was Daygee State, Common 5. P.2d See also gen- by persons property (Alaska 1973). use of the tual having joint erally control for or access contend, nor state does not would the purposes, reasonable’ that it is so most support facts assertion that had the Jones searching that believe the to officers the authority consent for Schraff. In United to authority person giving the had the consent (7th 1974) Sells, States v. F.2d 912 so. Id. at n. to do the noted: and, too, question 4o Matlock, a factual Consent “In United States appearance question au- is the 39 L.Ed.2d 242 give thority government to it.” that Court said when by seeks to a warrantless search reveal, and common showing voluntary consent, not The record does it do so any suggest, had by showing ‘permission does Jones sense not to search was joint of, possessed party access Schraff’s use or mutual a third obtained from who authority consent could not Jones wallet. Hence common over or other sufficient sought relationship premises or effect Schraff. inspected.’ Id. at 993. viewpoint this is Turning by quietly can be avoided delegating Alaska’s sue, physical germane. In Mc two cases are motions of the search to private party. Galliard v. A search cannot be (Alaska general 1970), purely private we cited with favor viewed as a if it action Corngold was encouraged by Ninth Circuit case or govern- ordered 1966). ment 367 F.2d showing officers. There be a must any opinion suggests that the courts government The latter involvement of of- are form concerned substance ficers did not influence the actions aof private government party. or determining whether Coolidge v. Hamp- New shire, truly private carrying supra. party was out challenged Corngold conduct. The deci sion that where a holds conducted presented The facts indicate offi- [the benefit, solely government’s for the was not only there object before the cer] participates in when the state’s officer accomplished was but very be- conduct, then the conduct be re cannot ginning. The intent to find out garded strictly private act. as parcels contained contraband materi- case Bell v. recent 519 P. al. It was who actually [the officer] 1974), 2d reflects this line determined marijuana. the contents reasoning. In the Bell case the officer His direct role requires matter participated” neither “initiated or in an it governmental be viewed as a airport employee’s search of the defend- Issod, supra search.” at 1113-14. Indeed, possessions. police ant’s were We conclude that prox- Officer Lewis’ present not even at the time of the search. imity participation in this search re- facts, any showing Under those and absent futes claim that this “private was a prior communications between the search.” private party, and the we affirmed the (2) Did the wallet fit within a search.7 recognized exception to the warrant present The facts in the case are not rule? nearly benign only to the state. Not Having established that Lewis’ present was Officer Lewis at the time of wallet regarding consti- conduct Schraff’s search, but by he initiated it requesting seizure, tuted a warrantless search and wallet, and then participated in burden falls on the state establish by riffling through the wallet. Obvious- preponderance the evidence that ly strictly gov- conduct for the Jones’ recognized search within a fits already ernment’s benefit. He had been requirement. The to the warrant number given warnings certainly his Miranda exceptions may vary somewhat of these de- he did not need or want to determine performs pending upon which court Schraff’s identification. analysis,8 categories following can but the Finally, the case of v. United States Is be identified: sod, F.Supp. 370 1110 (E.D.Wis.1974), of property. (i) A search of abandoned fers a precise clear and holding this for States, Abel v. United 362 U.S.

type pattern. of fact There the stat 217, 683, L.Ed.2d 80 S.Ct. 4 668 ed: (1960); requirements “The the Fourth against (ii) pursuit A in hot Amendment search unlawful searches Hay v. fleeing felon. Warden significance seizures have small result, Por a similar see Compare 508, 7. Erickson v. 507 P.2d v. United States Cir. (Alaska Echols, 1973) (four), 1973), xvith Wheeler F.2d 37 cert. de 514-15 477 nied, Goodman, F.Supp. 1356, (W. 825, 128,-38 v. 414 94 330 U.S. S.Ct. L.Ed.2d D.N.C.1971) (eight). (1973). 58 1642, 294, categories. The case den, U.S. 87 S.Ct. is not as certain 387 with regard (1967); categories. to last three L.Ed.2d 782 18 cause, search, to probable (iii) A Because stupefied of Schraff’s con of a known avoid destruction dition at the search, possi time of the it is seizable item. Johnson v. argue ble to that Officer Lewis’ conduct 367, 10, States, 333 U.S. S.Ct. 68 designed provide to informa crucial (1948); 92 L.Ed. 436 tion in the emergency rendition of aid. urges A vehicle. The state (iv) exception search of movable this “emergency” v. U.S. Carroll United 267 its brief. 132, 280, S.Ct. 69 L.Ed. 543 appears “emergency” exception to (1925); with the originated modern times “inventory” Cooper

(v) An search. Barone, 330 F.2d case of United States v. 58, California, S. v. 386 U.S. denied, 1964), cert. (2nd 788, (1967); Ct. 17 L.Ed.2d 730 1940, L.Ed.2d 1053 S.Ct. police heard (1964). case the voluntary pursuant (vi) A search Upon coming building. from a screams v. Busta consent. Schneckloth money entering it found counterfeit monte, 93 S.Ct U.S. plain upheld view. Second Circuit 2041,36 (1973); L.Ed.2d 854 stating: search “stop Terry (viii) A and frisk search. “emergency States aid”. United and in- police to enter “The Barone, (2nd 330 F.2d 543 emergency in an without vestigate 1964), cert. denied 377 U.S. accompanying intent either 84 S.Ct. 12 L.Ed.2d 1053 very nature of inherent arrest (1964); officers, peace de- as their duties gener- See rives from common law.

(viii) “stop Terry A and frisk search”. Case, (1822).” Ohio, ally Read v. Conn. U.S. 88 S.Ct. Barone, supra, at 545. 20 L.Ed.2d (1968); A search (ix) incident to an arrest. recognized the Alaska we have California, Chimel the warrant rule. “emergency” 23 L.Ed.2d 600, 602 In Stevens 1968), cert. denied 393 U.S. (1969), the 662, 21 L.Ed.2d apparent It the search seems a warrant room without entered possibly said to cannot Schraff’s wallet a shoot report response to a children above.9 categories fit six within the first upheld This court ing therein. Indeed, brief not seek the state’s does in the existence the officers’ belief because these falling within justify the search alleged in- categories quick vehicle search ventory A review of first six failing justification purposes why applicable. of them none are reveals raising By simply (a) search warrant. to secure not abandoned The wallet pass intending exception, are we in fact. question at this time. (b) in that was not while The wallet discovered already (f)It contend- fleeing noted that pursuit been has a hot of criminal. im- pre- ing search is attempting the (c) consented to Schraff to not mental plausible intoxicated of his because of vent the destruction known contraband. Bustamonte, simply attempting v. Rather, In Schneckloth state. deter- he was to L.Ed. U.S. mine Schraff's identification. (1973), con- that the reiterated (d) 2d 854 not a search of a vehicle. This was voluntary con- search, that “inventory” and stated (e) sent must an This was not drugged re- meet not does duct while in as neither nor were cus- Jones quirement. tody arrest at time. Further- or under the more, in the is not clear Alaska And, key suitcases, they a to emergency found the which of an was reasonable.10 opened then the a revealing “loot” from in case we have noted a non-criminal customary robbery. Appellant bank of was convicted have a generally police officers robbery appealed, challenging the duty the and welfare protect to lives search. large. Lee v. citizens at However, 1971). 1209-10 (Alaska upheld The Sixth Circuit the conviction subterfuge duty used as a

this not be stating: “ individual’s constitutional invading an . . . . . . the deem [W]e case, this rights. evaluating the facts in In problem critical whether the offi- consider we it instructive to have found opened who . . cers . briefcase jurisdictions. cases from other so, [appellant’s] taken from car did asserted, they rendering as a matter Dunavan, F.2d In United States emergency seizure, person aid to a appel- passersby 1973), found (6th Cir. explanation or whether of their car, had set fire to lant in a which disabled Dunavan, pretext.” search was a supra foaming at it. He was ground below at 203. They re- unable to talk. mouth and rummaged car and moved him from the The court went govern- on to add that the it, seeking identify They through him. to ment had showing objec- the burden of card, locked security found a social two tive reasonableness officers’ con- cash, briefcases, agree- in a car rental $961 duct. name, keys a appellant’s ment in to States, U.S.App. Vauss United police. They motel then called the room. court, (1966), D.C. 370 F.2d 250 in police they per arrived and because opinion, curiam appellant’s affirmed die,” “thought to [appellant] going conviction for violating narcotics laws. There, went to to his hotel room for identification appellant was found uncon hospital. they give hotel to the At the on scious by police. street When analysis emergency report People 10. An extended ex- is correct. could well die ception by emergencies police Warren was offered Chief Justice to tried act with the appellate Burger, sitting judi- he was as an when calm deliberation with associated ' Wayne judge process. apparently D.C. Circuit. on the cial Even dead U.S.App.D.C. by police response. often are saved swift cert, (1963), denied, myriad F.2d 205 A of circumstances could fall police ‘exigent 11 L.Ed.2d 86 within the terms circumstances’ , coming g., uncovered a criminal abortion when . e. smoke out a window apartment forcefully door, an gunfire entered under a or sound they thought house, there was an wom- unconscious threats from the inside to shoot Pope through police, an. See also the door at reasonable (Alaska 1970). grounds injured seriously to an believe or Judge Burger being wrote: ill is held within. required entry “[A] warrant to break down . . . That an such would be an burning door enter to rescue home intrusion is but undoubted here we reach occupants extinguish prevent fire, balancing or interests and needs. When shooting bring emergency policemen, public a injured person. toor aid to an firemen other or officers protect The need to or are confronted evidence which would preserve injury jus- prudent avoid life or serious lead a reasonable see official to protect property, what tification for would be otherwise a need to act they life or illegal exigency emergency. absent or are authorized act [without a war- reported information, Fires or dead bodies are rant] even if ulti- by mately Wayne no cranks where fires or are to bodies found erroneous.” v. United Acting response reports State, supra found. at 212. police may bodies,’ “emergency ‘dead ‘bodies’ find the The entire doctrine” is reviewed shock, drunks, Emergency to be common diabetics in Mascolo Doctrine patients. Requirement Exception distressed the busi- to the cardiac But Warrant Under policemen act, Amendment, ness of is to and firemen the Fourth 22 Buffalo LJEtev. speculate not to or meditate on whether him, they unconscious, an was they called brought could not rouse police to the ambulance, station and then searched him two unidentified men. po- The prepare hospital a lice identification order to searched the defendant for identifica- tion and report. cellophane revealed information regarding The search next of bags powder proved kin. The Jersey appeals of white which to be New court af- firmed the prior narcotics. search but noted that the search nothing indicated that the de- opinion The states: fendant had any broken laws and he was “A found in search of one an uncon- “obviously injured.” sick or legally permissi- scious is condition both Miller, (Mo. 486 S.W.2d 435 State v. necessary. highly ble and There is a police a on call check 1972), the went positive if the need to see pat restroom. A “downed” in a man carrying some indication of medical his- unconscious man revealed search tory, rapid discovery syringes. When the bag pills full of life; save his there is also need to police regained defendant consciousness the identify persons found in order no- so problems. medical asked he had tify Vauss, supra or friends.” relatives not, he did the defendant said When at 252. police him. His conviction was arrested Gonzales, In People Cal.App.2d upheld. Cal.Rptr. (1960), police Jordan, Finally, in 79 Wash.2d State suffering found the defendant from severe at hotel a maid (1971), 487 P.2d 617 knife They wounds “in shock.” guest had who became concerned about searched him for identification and found many bed for hours. not moved from his marijuana. appeals The California They found the man police. called She stating: affirmed his conviction an unconscious and called ambulance. mere “Reasonableness is not a matter of police man had “needle then that the noted practical theory abstract but a question Upon searching him on tracks” his arm. determined each case identification, drugs were found. light of its own circumstances.” Gon- being reasonable affirmed as zales, supra at 923. under the circumstances. Smith, Ill.2d 265 N. People legal cases background With responded to a (1970), E.2d mind, now examine principles we can concerning a man who was radio call whether the present to determine case they hallway. On arrival “down” in a up- should be wallet of Schraff’s inco disoriented and found defendant held. herent, his but there was no alcohol ques he failed to answer breath. When the 49’er Club came to Officer Lewis identification, regarding tions Trooper Ahlfors. response to a call identification and found searched him for agent. He narcotics Officer Lewis was pocket. marijuana in his back The Illinois investigation help Ahlfors in an came to Supreme affirmed conviction Court mari- conducting pertaining to Ahlfors was stating: in a juana allegedly had found trooper “ vehicle. human preservation . . . [T]he privacy paramount life Hence, say that came is fair protected and seizure laws by the search investigation relat- to the club to conduct . . .” guarantees and constitutional to know wanted ing to He narcotics. Smith, supra because, as part identification in it, “possible defend- put was a 190, he N.J.Super. Agent, In State act.” Officer possible criminal defendant, ant who A.2d 846 the nar- eluding detection, that this was how prompted Lewis admitted crime his drug squad gained information about cotics search of Schraff’s wallet. other cases, users. the officers only claimed their motivation was that of rendering aid to at he found he arrived bar When injured person. In view of these distinc- very debilitated state. Schraff tions, we conclude that Officer Lewis’ con- holding floor appellant “sitting on the duct did not fall “emergency” within the stomach”, unintelligible making his sounds. exception to the warrant rule. Officer was advised Schraff Lewis had run their vehicle into and places Since state also some reliance Jones “sleep ditch and had come into the bar to on Terry Ohio, coordination, it lacked off.” Schraff seeking L.Ed.2d 889 in to eyes shot, glazed and blood and he conduct, were its a consideration of the speak. had no smell “stop unable to Schraff and frisk” to the war- him and there no alco- alcohol were on rant necessary. rule is again, Here how- beverages holic near him. ever, the facts support do not the state’s claim.

At time asked Officer legion holding cases are for his identification. that sus- When picion stop must exist in why person asked in court he wanted the identifi- order to cation, place, first Lewis stated: the officer must rea- Officer sonably person believe that is armed “Because of the fact that either Mr. dangerous permissi- before frisk may or have been a Mr. Schraff Jones Ohio, ble. See Terry supra; United possible defendant a criminal act. Davis, States v. 482 F.2d Cir. Mr. in such a condition that Schraff was 1973); Davis, United States v. F.2d normally find a that’s when we (9th Cir. 1971); Wilson, United States v. state, under the influence and we 465 F.2d 1290 (7th 1972); subsequently going don’t know if he’s to Foust, States v. 328 (7th 461 F.2d need medical attention or would be a 1972); Garcia, United States v. 358 F. this, problem anything later or like Supp. 1042, 1046 (D.C.Tex.1973). identify procedure and it’s routine Thus, assuming them.” Officer Lewis had a right stop question appellant, in the case us are When facts before does not follow that he had the compared “emergency” with the cases cited him, frisk personal property. to take his above, readily ap- several distinctions are Coates, United States v. U.S.App.D.C. First, parent. Lewis came Officer 495 F.2d 165 (1964). The Su- purpose conducting scene for the a nar- preme Court noted in Terry that even a cases, investigation. cotics In the other cursory search is “a upon serious intrusion seemingly emergency the officers had aid sanctity person, in- only objective going as their great indignity flict strong arouse re- Second, scene at all. Schraff was not to- sentment, and is not light- undertaken tally accompanied unconscious and he was ly.” Terry, supra, companion who was re- somewhat at 1877. sponsive. cases, In the other way getting necessary had no other in- Officer- Lewis testified that he did formation about think defendant without was armed and he did not Jones conducting find a Finally, need to search. frisk Schraff. Under these circumstances, motives, Lewis admitted that several in- and in view of the vast Terry, Sibron, though exhaustive, perhaps dated, Beyond, Peters and 11. For an Mich. analysis “stop LaFave, and frisk” law see L.Kev. 39 “Street Encounters" and the Constitution: apprehen- inquired requiring when he of the bartender as quantity of case law there, jus- they doing to what weapons before a frisk can were sion of tified, they gotten has not bartender advised that had the state established warrant their and that "stop and frisk” to the vehicle stuck ditch the owner had seen it and had seen to rule.12 subjects it that the were removed and strenuously urges Finally, the state placed they inside the bar where could justified under the search sleep Trooper it off. And Ahlfors “search incident to arrest” doctrine. It said that he had told the bartender concerning contends that the information that that was fine and asked him not car, marijuana coupled in the with to allow them to drive the vehicle until defendant, gave debilitated state of Of such time they were And sober. probable ficer Lewis cause to arrest then he asked which vehicle it was defendant and to search him incident driving, were and the bar- thereto. tender Trooper described the vehicle. Our decision in Peter v. 531 P.2d Ahlfors went out to check out to (Alaska 1975), establishes narrow secured, make sure it was and ob- boundaries for searches incident custodi- served the open window was and the al detainment for drunkenness. Schraff’s keys in ignition. He advised me debilitated in condition had not resulted that as he reached to remove the complaints any of conduct of a criminal keys from ignition, that he ob- nature, and Officer Lewis testified that he appeared marijuana served what to be felt no weap- need to search Schraff for on the floorboards, and that . Therefore, stuporous ons. state Counsel: you And then he called ? justification offers no whatever for the Lewis: That’s correct. place. search which took Trooper Officer Lewis testified that Ahl- Trooper turn appar- We next to Ahlfors’ fors only contacted him after discovery ent he discovered marijuana in the vehicle. bag containing marijuana 20 ounces of discovery If the was in the course of a event, back search, seat lawful vehicle. the evidence so obtained it is may uncontested that Ahlfors told given have probable rise to cause to marijuana he had discovered arrest and a search incident thereto. vehicle However, allegedly in which Schraff had evidentiary development riding. been the circumstances and surrounding details inadequate event is to enable us to disapprove do Trooper We Ahl-

make a reasoned determination regarding Indeed, fors’ efforts to secure the vehicle. propriety of his actions at the automo- may duty officer have had a to do that bile. very thing. Lee v.

Trooper 1971). Ahlfors’ search of the car was described Officer Lewis at the trial: been ade- have not questions certain But example, the state explored. For quately me . advised Lewis: . . [Ahlfors] in the middle making explained how has not time that he had been at that Ahlfors, winter, who was Trooper night, 49er Club bar check routine keys, able ap- looking car ostensibly 2 individuals who had observed alleged quantity identify recognize and uncon- peared passed out unat- of an floorboard marijuana And on the the club. scious on the floor of strangers” dealing sup police procedure’ given unrestrained Some courts into See, intrusions port interrogations.” it does not is involved so-called “field “stop suitcases, Loyd Douglas, F.Supp. pockets g., even e. Hostet (D.C.Iowa 1970). United States in order. frisk” was least one But “ (D.C.Del.1969). ter, F.Supp. merely ‘common has held that because States, (1960); Nor do we know what Taglavore tended automobile. v. United Trooper probe into F.2d prompted (9 Finally, Ahlfors to 267 n. 3 1961). pre- Even if the arrest seat of the automobile. not be used as a mere the back justifiable,13 the infor- text these searches were search. Henderson v. United justify associating 12 F.2d 1926); mation which would F.Supp. Lassoff, Schraff with the car is unclear. United States v. 953 (E.D.Ky.1957). suggest The facts available to us that a Therefore, possibly may vehicular search if the trial court unlawful determines provided probable on have whatever cause for remand that the circumstances sur- rounding discovery marijuana had at the time he arrest Officer Lewis Therefore, provided probable automobile seized wallet. under cause for the Schraff’s Schraff, arrest of the “tainted evidence” doctrine announced the search of the wallet States, may be Wong Sun v. United 371 U.S. considered a search incident to ar- 471, 407, 441 rest. The trial 83 S.Ct. 9 L.Ed.2d court also determine should might arrest and incident thereto be whether search the search and arrest were sub- stantially contemporaneous. invalid. Because the crucial nature of issue, supe- we remand the case to the briefly We now turn remaining to the is- rior hearing propri- court for a full on the presented appeal. sues on this ety inspection of the vehicular conducted B. Did Lewis Need to Give Schraff by Trooper Ahlfors. Warning "Miranda” He was Before If on remand finds that the Wallet? Entitled to His Search marijuana was not “tainted evidence” and Schraff contends that he was enti probable that further it can serve cause warnings tled to Miranda before search subsequent for the arrest one other matter lawfully of his wallet could be conducted. requires still treatment here. This con- Appellant’s claim of merit. error without cerns the to search a person arrest, opinion Miranda effecting proba- before an was concerned with Fifth ble prior exists Sixth rights cause arrest Amendment the context held that a “custodial” interrogations. search. We have Arizona, Miranda arrest, v. may precede 436, incident to arrest 384 U.S. 86 S.Ct. 1602, State, 16 L.Ed.2d (Alas- Goss v. 390 P.2d 223-224 Assuming arguendo that 1964), ka required but have a substantial Lewis’ demand for Schraff’s contemporaneity identification was made in of search arrest.14 a “custodial” context, Goss, no interrogation preceded we found a search which of Schraff was made at an Thus, arrest to 49’er be lawful where the search oc- Club. Miranda warnings probable curred would seem wholly after cause for the arrest unnec- essary. arisen, had arrest followed almost

immediately thereafter. Even if focus the constitu we on goes saying,

It proscription against without tional unreasonable course, that seizures, such search must be incident searches asserted need York, to the unpersuasive. arrest. Sibron v. New warnings for Miranda It 40, 63, U.S. 20 L.Ed.2d S.Ct. 917 is established that well “testimonial” (1968). Additionally, may an arrest may “communicative” evidence be seized justified by subsequent what during and sei an otherwise lawful search discloses. Murray, Rios v. United zure. See States v. United 253, 261-62, 1973) (address L.Ed.2d 1688 F.2d Layland State, (Alaska 13. Officer Lewis admitted that the car search 14. In v. 535 P.2d 1043 1975), occurring have been unlawful. an arrest over three months after the search held not to be substan- tially contemporaneous. Bennett, (1971).16 F.2d S.Ct. v. 29 L.Ed.2d 564 See book) ; States also, State, This Bell (letter). 519 P.2d (2nd 1969) (Alaska 1974). any Fifth Amendment claims lays to rest might regarding assert appellant We also must consider Officer Lewis’ only theory wallet. Thus search of his “search”, opening, packet. e. i. of the foil warning might logi- Miranda which the previously given We substantial the claim that cally asserted rests with weight ato law enforcement officer’s ex- “consent to necessary an effective it is pertise identifying contraband sub- 15 However, has not as- the state search.” Bell stances. Cf. aon justified that the search was serted (Alaska 1974); Daygee theory, and in view of consent 1973).17 condition, such assertion debilitated case, Lewis, present In the would be difficult to sustain. Schneckloth investigator, trained narcotics testified Bustamonte, 218, 224, packet the foil was identical to so-called We conclude (1973). 36 L.Ed.2d 854 “slips” carry variety which are used to a appellant’s regard in this that claim drugs. of illicit He was certain that the wholly lacking merit. packet “slip”, was a and he had never seen “slip” carrying was not used for Right Have the Did C. Lewis Officer dangerous drugs. narcotics and He there- Packet Open the Foil to Seize packet fore concluded that the foil un- Found In Wallet? Schraffs doubtedly drugs. contained illicit may have Lewis Officer Since addition, packet firmly the was not wallet, Schraff’s right to examine had a police custody within at the that it time give required to was not since he Instead, per- was seized.18 was on the to prerequisite warnings as a constitutional bar, public son of a man who was ac- Lewis whether decide must right, we companied friend, relatively coherent foil the and search seize right to had the seemingly who had access to an automo- wallet. in Schraff’s he found packet which Thus, situation, exigency bile. the of the coupled experi- when with Officer Lewis’ had a that Officer believe We testimony regarding unequivocal ence and in the through the wallet right to search recognition his the contraband nature of right to seize had the place, he first packet, convinces that both the foil us a lawful observed which he evidence packet of the were law- search and seizure into intrusion If position of intrusion. ful, that, remand, provided the state can jus- can wallet privacy of establish the intrusion into .Schraff’s at point tified, regarding the particularly to as a wallet was conducted search incident view, the into packet came which the foil a lawful arrest. un- be lawful packet would seizure of the proceedings accordance Remanded for See Cool- “plain doctrine. view” der opinion herein. with the 403 U.S. Hampshire, idge v. New marijuana house, Note, inside. question noticed analysis outside see 15. For an into Reappraisal no lawful intrusion had been Since there A Consent Searches: After plain outset, Miranda view doc- Arizona, the house 67 Colum.L.Rev. Sleziak, the seizure of the con- State, (1967). trine could open (Alaska 1969), traband. de- for future we left question a Miranda of whether cision the Wheeler, 17. also States See United prerequisite warning a valid consent is a U.S.App.D.C. 204, F.2d 1228 to search. Compare Erickson v. 507 P.2d Spietz, Compare: P.2d 521 In State v. (Alaska 1973). McCoy v. also See (Alaska 1975), suppression (Rabino- (Alaska 1971) affirmed the we part). witz, Connor, dissenting standing officers, J. and J. when of evidence seized ERWIN, participate. J., quently independent valid did not basis. United Bugarin-Casas, States v. (9th 484 F.2d 853 BOOCHEVER, RA- Justice, with whom denied, Cir. 1973), cert. WITZ, Justice, concur- joins, Chief BINO S.Ct. 38 L.Ed.2d 762 (1973); Green v. ring. F.2d 1967). Similarly, emergency in- doctrine agree I facts of While provide could independent ground a valid bring the wallet stant case do not contested for a regardless of a officer’s emer- within strict limits of the original purpose. doctrine,1 disagree the rea- gency with I soning majority in its treatment of Finally, it reading seems narrow a the fourth amendment’s emergency exception require that a majority finds requirement. The warrant person be alone and unconscious before he inapplicable emergency that the doctrine can be searched identification instant (1) case because Officer case, emergency. medical In the instant purpose coming Lewis’ scene Schraff, conscious, though totally un- drug investigation; sever- (2) to conduct a communicate; able to companion, motives, detection, including al crime though responsive”, appeared “somewhat prompted the and (3) wallet search drugged heavily Lewis to be or in- totally unconscious was not and was toxicated, reasonably and Lewis could companion. responsive a somewhat concluded that was not reliable Jones source identifying Schraff. Had state established that'Officer Lewis, upon observing Schraff at the 49er The test I applying would use in the Club, reasonably that it neces- believed emergency exception in the instant case for medical sary identify him immediate in and other situations is whether a rea- treatment, emergency under the search police officer, sonable acting under the to- precluded because doctrine should not tality of they ap- circumstances as gone had the club conduct a peared time, to him at the would believe investigation. To disallow the emer- drug that emergency medical (an existed im- gency exception in such a circumstance minent and substantial threat to life or might prevent police well officer from health) and that a search of the sick or in- fulfilling customary duty protecting his person jured for immediate identification large. and at the lives welfare citizens was necessary. excep- I would disallow 1206, (Alas- Lee v. tion in solely the instant case for the rea- 1971). ka son that Officer Lewis’ at 49er conduct testimony Club and do not re- police purpose is not trial officer’s initial

A immediacy veal the in urgency and identi- necessarily controlling indepen if a valid fying Schraff medical treatment which arrest becomes ground dent for a search or trig- the courts held to be essential contact apparent to the officer on first ger emergency doctrine. prem suspicious person, with a vehicle or States, 273 F.2d ises. Williams RABINOWITZ, (concur- Chief Justice 781, 1959); (9th Donahue Unit 794 part, in in ring dissenting part). 94, 1932). ed 56 F.2d agreement am in initial I with the court’s reso- Even cases where officer’s invalid, appeal of all purpose was held to be searches lution issues raised this intensity upheld exception there is a subse of the of the have been where emergency Louisiana, 30, 35, a show see also Vale v. doctrine is based on 399 U.S. necessity is, 409, ing imminent true 26 L.Ed.2d —that life, ; (1970) Jeffers, health or United. threat States v. substantial People Smith, property. Cal.3d S.Ct. L.Ed. (1972) ; Cal.Rptr. 893, P.2d * * * particularly, More I am of dence person. search issue. the arrested that, assuming Lew- From this the view even follows that officers is had the to examine Schraff’s wal- and seize not only things let, opening physically of the folded alu- person arrested, the officer’s on the but packet constituted an unreason- those minum foil within his physical immediate I, 14 of able search under Article Section control.2

the Alaska Constitution. In my dissent in expressed McCoy, I precise opinion permissible issue of the in- that provide these rationales tensity practical of warrantless searches incident to theoretical justification previously in departure arrest was before this court require- the constitutional McCoy ment that pursuant searches be conducted 1971). McCoy Further, There contended once to warrants. I stated that these packet justifications foil had been removed from his same provide relevant crite- person, officer was not endan- ria for permissible delineation of the de- weapons gered by any might have gree of intensity of a warrantless search packet person been concealed the foil incident ato lawful arrest. evidence therein safe from destruction. Applying thoughts, these I concluded in McCoy In these circumstances asserted McCoy that packet, order to look inside the once the possibility of the ar- officer should have first obtained a search escape restee’s prevented, the officer’s accurately stating warrant. After insured, safety danger of con- argument raises the most trouble- “[t]his cealment and destruction of evidence of presented appeal, questions some in this the crime for which the arrest is made provoked disagree- and has considerable eliminated, then longer there no exists Court,” members among ment any necessity, or exigency, justifying majority McCoy held that the war- continuation of the warrantless search of McCoy’s packet was sus- rantless of the arrestee. ... coming tainable as within the lawfully order to search the interior of requirement the warrant for searches of packet contents, the small and seize its person incident ato lawful arrest. dangers once the of concealment or de- appropriate

I deem this an occasion to longer struction no were relevant consid- briefly expressed erations, reiterate the in views I upon po- it was incumbent my dissenting opinion in There I McCoy. persuade lice a neutral and detached analysis stressed judge Frankfurter’s of to issue a search warrant author- Justice exception underlying rationales which izing packet the search of the for evi- permits search of the of ar- forgery.3 (footnote dence of of crime restee incident In arrest. omitted) Justice exception view Frankfurter’s this was rec- am Following my analysis, I led McCoy ognized : Officer Lewis to the conclusion that once possession of gained and control arresting protect the order to in [F]irst, packet, the aluminum foil wallet and the prisoner of deprive the and officer * * * destruction, of danger or concealment and, of escape

potential means the case.4 dropped its contents out of evi- destruction secondly, to avoid custody it was police at time within 1. 491 P.2d at 131. ' ap- were at bar there In the case seized.” Rabinowitz, 56, 2. States v. 339 U.S. police tavern parently officers two 653, 430, 437, 72, 94 L.Ed. 663-64 fairly cope attempting coherent with one (1950) (citations omitted). (Jones) the com- individual but i>assive 3. appellant. 491 P.2d at 141. incapacitated pletely inebriated any majority’s indication accept is devoid The record I statement cannot any represented firmly sort packet or Sehraff either Jones . was not “. . 850

Thus, necessity exigency no remained to of. A search of the container is neces- opening pack- sary of the justify Lewis’ to disclose its contents.7 having first obtained a search et without particular Of significance here is the warrant.5 rejection in Erickson of “constructive” plain also be made of the ma- seemingly employed by Mention should view which is “plain jority’s majority treatment of the view” in by doc- the instant case virtue expertise upon expertise trine and the of the officer who drug its reliance Lewis’ justification In Erickson conducted search. for both the seizure and v. 508, 1973) (Alaska packet. P.2d 514-15 the search Again looking State, “ omitted), Traynor Erickson, (footnotes we said . in this court Justice repeatedly quoted approval that a following passage court has cautioned per opinion People Marshall, search without a warrant is se unrea- from his v. 51, clearly Cal.Rptr. 585, 588, unless it falls within

sonable one of Cal.2d 665, narrowly exceptions defined to the (Cal.1968). Tray- There Justice requirement. ‘[A]ny warrant . . . nor wrote: requirement, new to the warrant the difference This contention overlooks no matter how reasonable terms of its contra- probable cause to believe between ”6 purpose, is viewed with caution.’ Of found, justifies the band will be which importance to the case at bar is the discus- warrant, obser- issuance of a search plain sion of view found in Erickson. plain sight, vation of contraband holding that the contents of a locked suit- justifies without war- seizure view, plain case not in were we alluded to offi- strongly convinced However rant. Traynor’s statement that Justice reveal search will may be that a cers belief, impossible for the con- inherently contraband, whether based their [i]t source, opaque container other of a closed of smell or tents on the sense the size of plain regardless a search without view not does material it made or the the container warrant.8 present denied, physical officers threat to the cert. State, ; (1969) 431 P. Weltz L.Ed.2d tavern. 1967) ; packet (Alaska my view, Ellison v. case in the instant 2d 1963). fully (Alaska secured less P.2d Spietz, in State the evidence than was Marshall, People quoting P.2d 1975), Daygee P.2d 521 Cal.Rptr. 69 Cal.2d (Alaska 1973). 514 P.2d 1159 Supreme majority 5. In Court 1975 a 521, Spietz, P.2d 523 essentially position 8. In State v. endorsed the California effecting 1975), police, (Alaska an People MeCoy v. See taken dissent. porch through open arrest, 297, Longwill, 943, Cal.Rptr. door on saw 14 Cal.3d marijuana People Norman, (1975) ; inside of defendant’s home v. P.2d sup- superior affirming 929, Cal.Rptr. 109, In court’s home. 538 P.2d 237 Cal.3d plain pression order, Brisendine, view alone (1975) ; People we said that v. 13 Cal.3d justify enough warrantless Cal.Rptr. is never 531 P.2d Spietz this court seizure of evidence. requirements for invocation of identified the support prior following plain of the text deci as follows: view doctrine McCoy legally justifiable; this court v. sions of were cited: intrusion has to State, (Alaska ; discovery inadvertent; 1971) plain 491 P.2d must be view Bargas State, exigent 489 P.2d circumstances and there must 1971) ; Ferguson plain view 488 P.2d seizure of the (Alaska 1971) ; Rubey later, City than 1035-37 Fairbanks, moment rather evidence at (Alaska 1969) ; pursuant ato warrant. (Alaska), Sleziak v. foregoing, On I further the basis expertise

conclude that Officer Lewis’ can- legal justification

not furnish for the war-

rantless search which was carried out here. packet

Nor can the search of the be sus- plain prior

tained under this court’s view

decisions.9 REVENUE,

DEPARTMENT OF State of Alaska, Appellant, Jacquelyn

Samuel W. GIBSON Gibson behalf themselves and all others similarly situated, Appellees.

No. 2477.

Supreme Alaska. Court of

Dec. Doyle,

Anthony Atty. Gen., D. M. Asst. Anchorage, Gross, Atty. Gen., Avrum M. Juneau, appellant. colleagues, par approval

9. Since of our two are not Court’s extensive warrantless ticipating appeal, in this I leave for a more searches the arrestee. appropriate only Supreme occasion discussion these cases restrictions Gustafson Florida, L. U.S. drew Court engage patently Ed.2d 456 and United States v. Robin abusive conduct which son, S.Ct. 38 L.Ed.2d shocks conscience offends Due (1973). As of this date this has Process. Supreme not decided whether to follow the

Case Details

Case Name: Schraff v. State

Court Name: Alaska Supreme Court

Date Published: Dec 22, 1975

Citation: 544 P.2d 834

Docket Number: 2263

Court Abbreviation: Alaska