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THE COURT OF APPEALS OF THE STATE OF ALASKA
KENT BROWN, )
) Court of Appeals No. A-3120
Appellant, ) Trial Court No. 3KN-S89-91CR
)
v. ) O P I N I
O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1122 - April 12, 1991]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
James A. Hanson, Judge.
Appearances: Margaret E. Moran, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Shelley
K. Chaffin, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Douglas B. Baily, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, District Court Judge.*
BRYNER, Chief Judge.
Kent Brown appeals his conviction of promoting
contraband in the first degree, AS 11.56.375(a)(3). He pled no
contest on June 1, 1989, reserving his right to appeal the denial
of his motion to suppress pursuant to Cooksey v. State, 524 P.2d
1251 (Alaska 1974). We affirm.
On January 4, 1989, Brown was in custody at Wildwood
Pretrial Facility awaiting sentencing on an unrelated charge.
That day he had a contact visit with Wendy J. Medcoff, during
which Correctional Officer Willard Drew saw Medcoff pass an
object to Brown. Brown swallowed the object. Drew terminated
the visit, placed Brown in a dry cell -- one without water -- and
told him he could either pass the object or take Ipecac to
regurgitate it. Brown took the Ipecac. Twenty minutes later, he
regurgitated an opaque orange balloon containing an unknown
substance. Drew seized the balloon and turned it over to the
Alaska State Troopers, who opened it without a warrant and
examined its contents. A field test determined that the balloon
contained .83 grams of marijuana.
After being charged with promoting contraband, Brown
filed a motion to suppress, claiming that the warrantless search
of the balloon was invalid. Superior Court Judge James A. Hanson
denied the motion, ruling that, as a prisoner, Brown had no
expectation of privacy and that, in any event, probable cause
existed to conduct the search without a warrant. On appeal,
Brown argues that the warrantless search of the balloon violated
his right to be free of unreasonable searches under the United
States and Alaska Constitutions.1
Brown challenges Judge Hanson's finding that, as a
prisoner, he had no reasonable right to expect privacy. He
further asserts that the warrantless opening of the balloon was
not justified by any exigency and did not fall within any
recognized exception to the warrant requirement. In advancing
these arguments, Brown relies on Reeves v. State, 599 P.2d 727
(Alaska 1979), which he believes to be dispositive. In that
case, Reeves was arrested for driving while intoxicated and
failure to appear. He was subjected to a routine, pre-
incarceration inventory search, which yielded an opaque, tightly
wrapped balloon. The officer conducting the search opened the
balloon and discovered contraband. The Alaska Supreme Court held
that the warrantless inspection of the contents of the balloon
was unlawful.
Brown contends that, like Reeves, he had a reasonable
expectation of privacy in the contents of the balloon. Brown
also contends that Reeves establishes that a warrantless opening
of a balloon is impermissible.
We need not reach the merits of Brown's privacy
argument. Even assuming that, as an inmate at the Wildwood
Correctional Facility, Brown retained his right to privacy, we
conclude that the warrantless seizure and opening of the balloon
in this case was justified under the plain view exception to the
warrant requirement.
Several years after the Alaska Supreme Court decided
Reeves, the United States Supreme Court relied on the plain view
exception to uphold the warrantless seizure and search of a
balloon that contained contraband. Texas v. Brown, 460 U.S. 730
(1983). The Court reasoned that, when used in this manner, a
balloon can reasonably have no purpose other than the concealment
of contra-band. As Justice Stevens explained in his concurring
opinion:
[T]he balloon could be one of those rare
single-purpose containers which "by their
very nature cannot support any reasonable
expec- tation of privacy because their
contents can be inferred from their outward
appearance."
Id. at 750-51 (citations omitted). For this reason, Brown held
that, upon seizing the balloon, officers were entitled to open it
and inspect its contents.
Professor LaFave provides an alternative rationale to
support the same conclusion. After making the point that, under
the plain view exception, the contraband nature of an article
must be immediately apparent before the article is seized, LaFave
explains:
[T]he minimal additional intrusion which
results from an inspection or examination of
an object in plain view is reasonable if the
officer was first aware of some facts and
circumstances which justify a reasonable
suspicion (not probable cause, in the tradi-
tional sense) that the object is or contains
a fruit, instrumentality, or evidence of
crime.
2 W. LaFave Search and Seizure 6.7(b) at 717 (1987).
Brown nevertheless points out that Alaska's
constitution has been construed to afford greater protection
against warrantless searches than the federal constitution. He
thus maintains that Reeves should govern his case even if a
different result would be reached under the United States
Constitution.
However, Alaska case law does not differ markedly from
the views expressed by Brown and Professor LaFave. Even before
the United States Supreme Court's decision in Brown, the Alaska
Supreme Court addressed facts similar to Brown's case in Schraff
v. State, 544 P.2d 834 (1975). In Schraff, an officer searching
the defendant's wallet for identification noticed a folded foil
packet. Based upon his experience, the officer believed that the
packet contained contraband. The officer seized the packet,
opened it, and discovered cocaine. On appeal, the Alaska Supreme
Court held that, if the officer had the right to search the
wallet, his seizure and opening of the foil packet was justified
under the plain view doctrine.
Although Schraff and Reeves may, at first glance,
appear to be inconsistent, further scrutiny reveals that they are
not. Schraff, decided under the plain view exception, involved
an officer who had reasonable grounds to believe that the foil
packet he seized and searched contained contraband. Reeves, in
contrast, involved a pre-incarceration inventory and not a plain
view seizure. The state in Reeves presented nothing to establish
that the officer who seized and searched the balloon had any
basis for believing that it contained contraband. The court in
Reeves emphasized that, "at no point did [the officer] testify
that he had cause to believe the balloon contained contraband
prior to opening it and observing its contents." Reeves, 599
P.2d at 740.
Basing its decision on the narrow facts of the case
before it, the court in Reeves indicated that the balloon could
have been seized and searched without a warrant if the state had
shown that its contraband nature was "immediately apparent." In
reaching this conclusion, the court expressly refused to
distinguish between transparent and opaque balloons:
A distinction based on the transparency
or opacity of a container in which contraband
is seized has a certain appeal in the context
of a legal doctrine termed the "plain view"
doctrine. However, it is not difficult to
conceive of situations in which an opaque
container (such as a box labeled as
containing illegal drugs) might be more
apparently and probably incriminating than a
substance in plain view (such as a clear jar
of white powder in a suspect's kitchen). The
require-ment of probable cause does not rest
solely on this distinction of appearance but
contem- plates the full range of information
in which an officer's conduct in seizing the
object seen is based.
Id. at 740 n.36.
In the present case, ample evidence was presented to
establish that the contraband nature of the balloon seized from
Brown was immediately apparent to the officer who seized it.
Drew saw Brown swallow an object that had just been handed to him
during a contact visit at a correctional facility. Under the
circum- stances, Drew immediately recognized that the object
Brown swallowed probably contained contraband. This likelihood
was reinforced when the object was retrieved and proved to be a
balloon. Both Drew and the Alaska State Trooper who ultimately
opened the balloon testified that, based upon their training and
experience, they were aware that balloons of the type Brown
swallowed are commonly used to carry illegal drugs. Accordingly,
under both Schraff and Reeves, it appears that the plain view
exception to the warrant requirement justified the seizure and
opening of the balloon in this case.
The conviction is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV, section
16 of the Alaska Constitution.
1. Brown does not challenge the validity of the procedure
resulting in seizure of the balloon. He contests only the
warrantless search of its contents.
