Daygee v. State

CONNOR, Justice,

with whom RABIN-OWITZ, Chief Justice, joins, dissenting:

We agree that the seizure of the plastic bag of marijuana was valid. We disagree that there was a valid seizure of the two grocery bags, the cardboard box, and the contents of those items. The difference between our views concerning the permissible scope of search and those expressed in the majority opinion is not great, but it is nevertheless measurable.

Searches incident to a lawful arrest are, of course, excepted from the constitutional requirement that a search warrant must be obtained. Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969). But the scope of such searches is limited by the underlying purposes for which they are permitted. These searches are allowed, first, to remove any weapons which might be used to resist arrest or make an escape and, second, to prevent the concealment or destruction of evidence by the arrested person. 395 U.S. at 762-763 , 89 S.Ct. 2034 .

In the case at bar the police officer ordered the two occupants out of their vehicle. He then searched them. Thereafter he informed them that they were under arrest. They were each placed in separate police vehicles. The police officer then returned to the detained vehicle and took possession of the grocery bags and the cardboard box.

At this point there was, in our opinion, no exigency which justified the seizure of those items under the rationale of Chimel v. California, supra. The seizure was not related to protecting the officer against weapons which might be used against him. Nor was there then any danger that the evidence contained in the vehicle might be destroyed. The vehicle was shortly to be impounded. It was entirely practicable to secure a warrant to carry out a search of the vehicle.

We are persuaded that the correct procedure to follow in cases of this type is that advocated by Mr. Justice Harlan in Chambers v. Maroney, 399 U.S. 42, 61-65 , 90 S. Ct. 1975 , 26 L.Ed.2d 419 (1970) (separate opinion, concurring in part, dissenting in part). If the police have probable cause to search a detained vehicle, they should seize it, postponing any search until they have obtained a warrant satisfying the constitutional requirements. This procedure would reconcile the claims of both individual privacy and effective law enforcement.

This procedure would relieve law enforcement officers of the burden of making difficult distinctions between vehicles exhibiting sufficient mobility to justify warrantless search and vehicles exhibiting insufficient mobility. Standardizing the warrant requirement by assimilating automobile searches to house searches would tend to avoid the confusion that now exists because proper procedure is difficult to determine at the scene of the arrest. More uniform procedures could then be employed by the law enforcement authorities.

“[T]he law of search and seizure should be written with a view to those whose conduct it is meant to control. Subtle distinctions, which even lawyers find hard of application, should be avoided.” 1 When an arrest is effected on the high-

way, the typical police practice is to take the car to a police station, garage, or other place of impoundment, to clear the highway of obstacles and to “protect” the arrestee’s property. 2 Thus, limited seizure imposes no great or unusual burden on the police.

Not only is limited seizure a workable rule for governing police conduct, it is a well-precedented police practice. In many situations, the police make an arrest in a home or are called to the scene of a crime where they have had no advance warning *1170 of the need to obtain a search warrant. Routine police practice on these occasions is to secure the house or structure until a warrant may be obtained.

A limited seizure would permit an independent magistrate rather than the police to decide whether there is sufficient evidence to justify an invasion of a person’s privacy. As the Supreme Court stated in McDonald v. United States, 335 U.S. 451, 455-456 , 69 S.Ct. 191, 193 , 93 L.Ed. 153 (1948):

“We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals.”

Any arrestee who prefers to have his car searched and released immediately may exercise his option to consent to the search of the car. 3

Finally, a significant advantage that emerges from the limited seizure procedure is a reduction of the danger of pretextual searches. Permitting warrantless automobile searches presents a serious temptation for the well-intentioned but overzealous police officer to initiate search on less than probable cause. 4 Unfortunately, the courts seldom have an opportunity to review the non-productive illegal search. Typically, the citizen whose privacy has suffered invasion just goes his way, with perhaps a diminished respect for the legal system. 5

It is our opinion that the search and seizure of the box and grocery bags from the back seat of Daygee’s automobile was constitutionally invalid under Article I, Section 14, of the Alaska Constitution. Therefore, the subsequent search of the bags at the police station, with the resulting discovery of the marijuana bricks, plastic bags, weighing scales, and amphetamines, was tainted by the illegal invasion of appellant’s automobile. 6 Since the evidence obtained in the course of the search was admitted in Daygee’s trial, we would reverse the conviction. 7

We agree, -however, with the disposition of the other issues treated in the majority opinion.

. Ferguson v. State, 488 P.2d 1032, 1035 (Alaska 1971).

. 17 U.C.L.A. L.Rev. 639, 640 (1970).

. Chambers v. Maroney, supra, at 64 , 90 S.Ct. 1975 .

. See Justice Jackson’s dissent to Brinegar v. United States, 338 U.S. 160, 183 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949).

. Id., at 181 , 69 S.Ct. 1302 .

. Wong Sun v. United States, 371 U.S. 471, 484-485 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963); Silverthorn Lumber Co. v. United States, 251 U.S. 385 , 40 S.Ct. 182 , 64 L.Ed. 319 (1920).

. Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971); Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961).