*1 Petitioner, Alaska, STATE Respondent. Lynn STUMP,
Mary No. 2663. Supreme of Alaska. Court 22, 1976.
March Gross, Gen.,
Avrum M. Atty. Juneau, Balfe, Joseph Atty., D. Stephen Dist. Dunning, G. Atty., Asst. Dist. Anchorage, petitioner. Shortell, Brian Defender, Public Barbara Miracle, Defender, Asst. Public J. Peter Intern, F. Mysing, Legal Anchor- age, respondent. BOOCHEVER,
Before Justice, Chief CONNOR, BURKE, Justices, ERWIN DIMOND, Pro Tern. OPINION
ERWIN, Justice. granted We réview of this case to decide whether an order sup- the trial court pressing proper evidence was under the circumstances.
Respondent Mary Lynn Stump was possession indicted for of cocaine.1 Her pre-trial suppress granted2 motion to petitioned State of Alaska for rev iew.3 Since the order of the trial court sought the matter possession prohibits to be reviewed involves AS 17.12.010 superior non-final order or depressant, hallucinogenic, decision of the stimu- sale of a Browder, court.” State v. drug. lant Davenport, See State v. 37(c). 2. Alaska R.Crim.P. discretionary can our state invoke “[T]he jurisdiction in criminal review cases where *2 Also, had in. terminating- prosec package come whether likely result a co-worker controlling ques had informed a Krossa involves ution4 before, days re- law,5 ap a few by this court review of tion cipients shipped had which book propriate. placed unusually value to high had appeal, the factual purposes of this For an address Francisco. San vary in ma- do side of either summaries suspect These to facts caused Krossa early hours regard. In terial might package that the contents of the Investigator Harter of April of described, opened be and he as therefore Troopers awakened was State the Alaska inspection. for found that Krossa directing from his office telephone call aby package indeed contain T-shirts. Gedminas, the As- contact him to Victor addition, however, plas- he discovered two of Airlines Manager Western sistant powder-like taped tic of a substance Anchorage International Air- at Freight of the inside shirts. Krossa Gedminas, called port. When suspected that the substance was either a Western Airlines informed that was cocaine heroin. With the Krossa, had discovered employee, William T-shirt, taped still to the of inside Kros- powder in a white T- some repackaged sa goods original in their shirts. leaving box, open. the end duties, his Krossa occa- course of Investigator subsequently When shipped by sionally opened packages West- airport, met with at was order Airlines in to determine that ern paper shown a brown which their contents were described on thereupon had one end cut off. Krossa accompanying bills. Prior in- air removed the contents the box show- bar, case Krossa had volvement ed Harter the T-shirt which contained the drugs in a package never found unlawful plastic bags. point At that Harter reached inspected. Although he had on occa- inside the T-shirt and removed the which discovered other items were sion bags. powder Some the white reacted shipped air, supposed to be positively to a field test for cocaine. past dealings no with officers The trial court found that the search regard with to these items. On the day was conjunc- conducted in question, attention Krossa’s was to a drawn tion or at with direction package wrapped in 'brown .paper addressed no exception prohibition respondent, Mary Dick York in care of against warrantless searches and Stump. been shipped from San applicable was under the circumstances. accompanied Francisco and an air Hence, judge the trial concluded that stating bill its contents as “T-shirts.” The search was unlawful and the evidence sub- collecting payment unusual, method ject suppression. and, arrival, the day of its Krossa re- separate There are components two ceived between four and eight telephone of the search6 analyzed calls from a must man and a be woman inquiring R.App.P. 23(c)(1) 6.The fourth amendment Alaska the United States allows the fil- petition Constitution of a review when an order “ affects substantial to be secure in persons, houses, papers, proceeding their effect and effects terminates or action prevents judgment final searches and therein violated, and no Warrants cause, sup- ported by particu- R.App.P. 23(d) permits filing Oath or Alaska larly describing petition controlling of a to be review question be seized. law is involved. (1921), rule on the order to search other federal au- Krossa; Hence, inspection by the initial (1) thorities. issue: Krossa did Stump’s inspection by the later not violate (2) rights.9 war Investigator Harter. Since no search Turning to the inspection, obtained, burden the State rant was has we note after Krossa discovered the *3 proving question that the search in met powder,10 police. he called the He then requirements.7 repackaged goods the in their original box inspection begin with the We with the initial end cut off.11 When Investigator arrived, At the Harter Mr. Krossa the Krossa. removed a T-shirt search, acting the in a the box12 and time of showed Harter the plastic capacity, agent purely private bag13 containing not as an powder. the Har- ter bag the There was then took police. no evidence the powder. tested cooperated positively he had reacted for cocaine.
past any previous or had them contact with persuaded We inspection this pertaining drug detection.8 As this stands any footing than the different in Bell court stated inspection. first There is no indication it was done at the direction of police, nor private acting citizen not attempt was there an by the officer open conjunction with or at the direction the original package. Investigator Harter does not violate con- was handed a T-shirt from a opened prohibitions against stitutional unreason- by Krossa, powder and the contained able search and seizure. pointed bags was out to No him. police search had up occurred until McDowell, Id. citing at Burdeau v. time. There was no “prying into hidden 465, 475, 574, 576, U.S. L.Ed. 11. 14" X The box was 14" and was Constitution, pro- X2%" I, The Alaska Art. Sec. paper. in brown vides : in their to be secure testimony 12. The exact was a : follows persons, property, papers, houses other Okay, Q. contents were effects, against box? No not be violated. put apparently A. them back He — upon probable warrants got in after had checked them before I cause, by oath or there. particularly describing to be Okay. again And he took Q. them out to be and the your observation? seized. Yes, A. ma’am. Okay. And the —he Q. had not removed Coolidge Hampshire, New inside the items from the T-shirt? 29 L.Ed.2d they taped No, A. were still to the inside (1971) ; of the T-shirt. Okay. And he removed Q. them from the situa 8. Thus we are not confronted with T-shirt? Corngold v. United tion involved A. I did. (9th 1966), government 367 F.2d Cir. where removed them from the T-shirt? Q. You agents participated in a search initiated You took them out of the box? also cargo by employees. of air TWA just A. asked me that. You you him, sorry. I’m legal- respondent Q. Was it We note that concedes box, (Re- them from A. He removed showed ity of the initial intrusion Krossa. plastic bag taped back me the spondent’s Brief at bag from the shirt. shirt. removed According Krossa, were (Tr. 29-30). “cellophane,” opaque, see and he could Actually powder. smaller “cello- brownish-gray there were two contained larger bag phane” 15) inside a which formed (Tr. covering. an outer 14 by is concealed” tion Harter directed remove
places
that which
Krossa to
contents,
officer,
the contraband was
it is
and thus
think
evident
Hence,
inspec
that but
police,
for the
view.
subsequent
permissible15
contents
would not
tion was
justifiable.16
removed Krossa at
that time.
my opinion,
surrounding
circumstances
trial court dated Au-
The decision of the
indicate
“acting
in con
reversed,
gust
and this case
junction
police,”
with or
the direction of the
proceedings in con-
remanded for further
e.,
acting
agent
i.
he was
as an
2
opinion.
formity with this
private
as a
citizen
when he
pack
removed the contents of the
RABINOWITZ, J.,
participating.
age presence.
Officer Harter’s
*4
State,3
court, citing
this
v.
Tern,
Schraff
(dissent-
DIMOND,
Pro
State,4
Welts v.
following
reiterated the
ing).
definition of the term “search”:
agree
I cannot
the
with
A
implies
prying
search
into hidden
in
My disagreement
this case.
on the
places for
that
is
concealed
search issue centers on the conclusion that
object
that
the
searched for has been
police
“no
search
.
occurred” when
intentionally put
hidden
way.
out of
the T-shirts were removed
pack-
from the
While it
ordinarily
has been said that
age the second time.
searching
sight,
gen-
is a function of
it is
Investigator
When
Harter arrived at the
erally held that the
looking
mere
that
airport, he was shown a
box
open
which is
to view is not a “search.”
paper
brown
with
end
cut off. There
(footnote omitted)
was no
in sight.
contraband
William
Krossa, an
employee,
airline
Prior to the
inspection,
pow-
informed
second
Har-
the
ter
dery
that inside one of the T-shirts
substance was
in the
concealed from Hart-
view;
plastic bag
was a
er’s
containing
as
as
concerned,
far
he was
the
two
plastic bags
powder.1
Therefore,
place.
of white
substance was in
a hidden
then removed
inspected
the contents from
con-
box.
While the
time,
record
devoid
tents for
any
is
indica
he was conduct-
State,
(Alas-
conjectural
seizing
hypothesis
Brown v.
372 P.2d
before
1962).
ka
as
item
contraband.
Here, also,
shipment,
manner of
con-
Blanton,
(5th
15. See U. S. v.
Zll contraband, and seizures would be the basis for searches which warrant, in the fourth amendment to the federal securing and clear convinc- a I, contra- constitution and art. sec. 14 of the' evidence that what saw was Alaska drug people would have Constitution. band—an illicit —which of Alaska drug a added to our constitution his seizure of without sec. justified Supreme of art. I States As the United warrant. pointed has out:
Court right people The is privacy Amendment, point of the Fourth The infringed. 'be shall not grapsed by zealous of- often is not legislature The implement sec- ficers, denies law enforce- is not that it tion. support of the usual inferences ment the evi- men draw from which reasonable This addition to our constitution has requir- protection consists in Its may dence. removing effect whatever doubt by a be drawn precious that those inferences regarding have existed nature instead magistrate neutral and detached right privacy. individual’s It has in the judged by effect, the officer being my opinion, requiring that ferreting enterprise competitive often in the area of searches and example, out crime.15 the law must construed most liberally favor of the individual of the constitutional The foundation strictly against most government, guarantees against unreasonable order to effectuate the constitutional man- right privacy.16 This date that the privacy peo- important that it deemed so ple shall infringed.18 not be discretion of unwise to leave in- privacy need be police whether one’s in this case has the the law. vaded order to enforce believe, effect, ultimate a creating interposed has been magistrate judge or presumption support that evidence person in order between the magistrate’s judge’s disinterested deter- objective might weigh an mind justi- mination to issue will also warrant person’s privacy. intruding need for fy making a seizure officer privacy invaded, a may be Before certainly without a warrant. This would seizure, permitting up- a search and based very explicit pro- reduce the cause and privacy to a nul- tections by a oath or must be issued magistrate judge.17 lity, person neutral and detached would leave one’s *7 property secure the discretion privacy is One’s prohibitions officers.19 alone the constitutional 793, 610, 2 Chapman States, n. 18. See Smith v. 799 v. United 365 U.S. 828, (dissenting 776, 1973) 614-15, 778-779, of Chief 5 L.Ed. S.Ct. 81 States, Rabinowitz). (1961) ; Johnson v. United 333 832 369, 10, 367, 13-14, 92 L.Ed. 68 S.Ct. U.S. Chapman States, 365 U.S. 19. See v. United Marshall, People (1948) ; 436, 69 v. 440 828, 776, 779, 610, 615, L.Ed.2d 5 81 S.Ct. 665, (1968). 51, 442 P.2d Cal.2d (1961) ; v. Johnson 369, 367, 92 L.Ed. Fresneda People Marshall, (1948) ; (1968). Cal.2d California, Chimel 395 U.S. 23 L.Ed.2d