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THE COURT OF APPEALS OF THE STATE OF ALASKA
NINA J. NEWHALL AND )
PATRICK R. NEWHALL, )
) Court of Appeals No. A-4194
Appellants, ) Trial Court Nos. 2NO-S90-255/256CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1273 - December 31, 1992]
)
Appeal from the Superior Court of the State
of Alaska, Second Judicial District, Nome,
Charles R. Tunley, Judge.
Appearances: John E. McConnaughy, Anchorage, for
Appellant Nina J. Newhall. H. Conner Thomas,
Larson, Timbers & Van Winkle, Nome, for Appellant
Patrick R. Newhall. Eric A. Johnson, Assistant
Attorney General, Office of Special Prosecutions
and Appeals, Anchorage, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
BRYNER, Chief Judge, Concurring.
Nina and Patrick Newhall were convicted, based upon
their pleas of no contest, of misconduct involving a controlled
substance in the fourth degree, a class C felony. AS
11.71.040(a)(2). In entering their pleas, the Newhalls reserved
the right to appeal Superior Court Judge Charles Tunley's denial
of their suppression motion. Cooksey v. State, 524 P.2d 1251
(Alaska 1974). We remand.
Judge Tunley made the following findings of fact in
denying the Newhalls' motion to suppress. On June 4, 1990,
Alaska State Trooper Donald Kitchenmaster appeared before
Magistrate Bradley Gater. Trooper Kitchenmaster applied for a
warrant to search a box which he had brought with him to the
magistrate. The box was six inches by ten inches by seven
inches. Trooper Kitchenmaster told the magistrate that on June
3, 1990, personnel from the Alaska Airlines Gold Streak
Department in Anchorage, Alaska, telephoned Alaska State Trooper
Roy Minatra to report a suspicious package. The personnel
informed Trooper Minatra that they had received a package, the
box, which was identified in the invoice as containing two pounds
of parts, but that the package did not appear to contain parts
because the package made an unusual sound when it was moved or
picked up. The personnel stated that they had sent the package
by Gold Streak from Anchorage to defendant Kulowiye in Savoonga,
Alaska, on June 3, 1990.
Trooper Kitchenmaster testified that as a result of
receiving this information he went to the Alaska Airlines
terminal in Nome, Alaska, and asked an employee there whether she
had received a Gold Streak package. The employee checked and
told the trooper that she had received a box. Trooper
Kitchenmaster told the employee that the box possibly contained
contraband. The employee told the trooper that the box did not
feel like it contained parts, and stated, "Why don't I x-ray the
package." Trooper Kitchenmaster responded that "it might be a
good idea." The employee put the box in an x-ray screening
device and Trooper Kitchenmaster saw what he thought looked like
a liquor bottle.
Based on this testimony by Trooper Kitchenmaster, the
magistrate found probable cause to believe that the box contained
alcohol being sent into Savoonga in violation of the local option
law, and issued a search warrant which authorized the trooper to
search for alcohol. The magistrate explicitly stated that he
found probable cause without considering any of the x-ray
evidence.
Trooper Kitchenmaster then opened the box. Inside the
box were two smaller packages, each wrapped in newspaper.
Trooper Kitchenmaster opened the package in which, with the x-ray
screening device, he had observed a bottle. He found a bottle
which contained 375 milliliters of Canadian Club whiskey.
According to trial court:
He then opened the second package in the
box, such also being wrapped in newspaper,
being light, soft and compressible. Inside
this package were two other packages wrapped
in Saran Wrap. Trooper Kitchenmaster
observed a green substance that he assumed
was marijuana. . . . When opening the second
package, Trooper Kitchenmaster testified that
he knew it did not contain alcohol, assuming
from the weight and feel thereof that it
contained drugs of some sort.
. . . .
Trooper Kitchenmaster assumed this
second package contained drugs of some type.
I find this a stronger conclusion than the
probable cause requirement discussed in
Reeves [Reeves v. State, 599 P.2d 727, 739
n.34 (Alaska 1979).] The package was sent at
a considerable cost, i.e. $31.00. It clearly
did not contain that noted on the invoice,
i.e., parts. Only a small bottle of alcohol
was found pursuant to the warrant. Trooper
Kitchenmaster could manipulate the second
package pursuant to the warrant to determine
whether it contained alcohol. The weight was
light and the package was soft. Trooper
Kitchenmaster had been a trooper of 20 years
experience and had been involved in over a
half dozen cases involving drugs being
shipped. Contraband was found in the
package, i.e., alcohol. Based thereon I find
and conclude that in the present case, ample
evidence was presented to establish that the
contraband nature of the second package
seized from the box was immediately apparent
to the officer who seized it, Trooper
Kitchenmaster.
Trooper Kichenmaster opened the package, finding marijuana.
Judge Tunley upheld the search.
The warrant in this case only authorized the police to
search for alcohol. Since Trooper Kitchenmaster knew that the
second package did not contain alcohol, the warrant did not
provide him with any authority to search that package. 2 W.
LaFave, Search and Seizure, 4.10(d) at 329-30 (2d ed. 1987)
(footnotes omitted). See Anderson v. State, 555 P.2d 251 (Alaska
1976).
In general, the police may not search a package without
a warrant. This is true even though the police have abundant
probable cause to believe that the package contains contraband.
A case illustrating this principle is Erickson v. State, 507 P.2d
508 (Alaska 1973). In that case, a citizen informant brought the
defendant's suitcase to the police station and told the police
that the suitcase contained marijuana. The informant had
actually seen the defendant place the marijuana in the suitcase.
The police opened the suitcase and found the marijuana. The
defendant moved to suppress, but the trial court upheld the
search. On appeal, the supreme court rejected the theory that
"abundant probable cause negates the need for a search warrant."
Id. at 512. The supreme court noted that the informant had no
authority to authorize the police to open the defendant's
suitcase. Although the informant had seen the marijuana in the
suitcase, the supreme court quoted with approval Justice
Trayner's opinion in People v. Marshall:
It is inherently impossible for the contents
of a closed opaque container to be in plain
view regardless of the size of the container
or the material it is made of. A search of
the container is necessary to disclose its
contents.
Erickson, 507 P.2d at 513 (quoting People v. Marshall, 442 P.2d
665, 669 (Cal. 1968)).
The supreme court found that when the police opened the
suitcase, they had conducted a search which was illegal under the
Fourth Amendment to the United States Constitution. Erickson,
507 P.2d at 513. It therefore seems apparent to us that Trooper
Kitchenmaster did not have authority under the warrant to search
the package which contained marijuana and he could not search the
package which contained marijuana merely because he had probable
cause.
Trooper Kitchenmaster could search the second package
only if its contents were in plain view. This is the theory
which Judge Tunley applied in upholding the search, relying on
Reeves v. State, 599 P.2d 727, 739-42 (Alaska 1979). In that
case, a correctional officer who was conducting a
preincarceration inventory search of Reeves discovered a balloon
in Reeves' pocket. Id. at 730. The correctional officer
unwrapped the balloon and discovered a brownish-colored powdery
substance. The correctional officer called the police who took
the balloon, tested it, and found that it contained an illegal
opium derivative. Id. The state argued that the correctional
officer could properly seize the balloon and search its contents
because it was in "plain view." The supreme court stated that it
had "recognized three basic requirements for a valid `plain view'
seizure of evidence: (1) the initial intrusion which afforded the
view must have been lawful; (2) the discovery of the evidence
must have been inadvertent; and (3) the incriminating nature of
the evidence must have been immediately apparent." Id. at 738
(footnote omitted). But see Horton v. California, 496 U.S. 128,
110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). The supreme court found
in Reeves that the question turned on whether "the incriminating
nature of the evidence [was] immediately apparent." Reeves, 599
P.2d at 738-39. The court stated:
[I]t is not a certainty but rather probable
cause which is required to justify a plain
view seizure. Therefore, the question
precisely posed in the context of this case
is whether the correctional officer's seizure
and search of the balloon was based on his
reasonable judgment prior to the seizure that
the balloon contained contraband, and whether
that belief was grounded upon probable cause.
. . .
Thus, while the opaque quality of the
balloon does not preclude a plain view
seizure here, we must determine whether the
correctional officers' seizure was based on
probable cause. In making this
determination, we consider the correctional
officers' testimony at the suppression
hearing as well as the totality of the
circumstances in which this seizure occurred.
The state bears the burden of proof and thus
it must appear by a preponderance of the
evidence that the seizure and search of the
balloon in this case was supported by the
requisite probable cause.
Id. at 739-40 (footnotes omitted).
In Reeves, the majority of the supreme court reviewed
the correctional officer's testimony and concluded that "he
opened the balloon and examined its contents not because he
believed it to be contraband, but simply pursuant to the standard
inventory routine at the jail." Id. at 740 (footnote omitted).1
Judge Tunley also relied on Schraff v. State, 544 P.2d
844, 847 (Alaska 1975). In Schraff, a police officer found a
foil packet in a suspect's wallet. The officer seized the foil
packet and opened it. The supreme court upheld the search. The
court stated:
In the present case, Officer Lewis, a
trained narcotics investigator, testified
that the foil packet was identical to so-
called `slips' which are used to carry a
variety of illicit drugs. He was certain
that the packet was a `slip', and he had
never seen a `slip' that was not used for
carrying narcotics and dangerous drugs. He
therefore concluded that the foil undoubtedly
contained illicit drugs.
In addition, the package was not firmly
within police custody at the time it was
seized. Instead, it was on the person of a
man who was in a public bar, accompanied by a
relatively coherent friend, who seemingly had
access to an automobile. Thus, the exigency
of the situation, when coupled with Officer
Lewis' experience and unequivocal testimony
regarding his recognition of the contraband
nature of the foil packet, convinces us that
both the search and seizure of the packet
were lawful . . . .
Id. at 847 (footnotes omitted).
Under Erickson, we know that the police cannot open a
package even if they have abundant probable cause. We also know
that if the police find a movable container in plain view, and if
they have probable cause to believe that the container contains
contraband, the police may seize the item temporarily until they
obtain a search warrant. Texas v. Brown, 460 U.S. 730, 103 S.Ct.
1535, 75 L.Ed.2d 502 (1983). The difficult question is
determining when the police have sufficient information to look
into an opaque container as the Supreme Court of Alaska
authorized in Schraff.
We believe that the key to this question is found in a
footnote in Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61
L.Ed.2d 235 (1979). In that case, the United States Supreme
Court held that the automobile exception did not authorize the
police to search a suitcase which they found in the trunk of a
taxicab. The Court reasoned that since the police only had
probable cause to search the suitcase, rather than the entire
car, the automobile exception did not apply. The search of the
suitcase without a warrant violated the Fourth Amendment. In the
footnote, the Sanders Court limited its holding as follows:
Not all containers and packages found by
the police during the course of a search will
deserve the full protection of the Fourth
Amendment. Thus, some containers (for
example a kit of burglar tools or a gun case)
by their very nature cannot support any
reasonable expectation of privacy because
their contents can be inferred from their
outward appearance. Similarly, in some cases
the contents of a package will be open to
"plain view," thereby obviating the need for
a warrant.
Sanders, 42 U.S. at 764 n.13.
LaFave discusses this footnote and its application in
other cases at 3 W. LaFave, Search and Seizure, 7.2(d) at 66-74
(2nd ed. 1987). LaFave points out that the test which the
Supreme Court will apply in these cases is uncertain. However,
he concludes that the cases do not support the conclusion that
the police only need probable cause before they can say that the
contents of a container can be inferred from its outward
appearance. Id. at 70-71. In United States v. Williams, 822
F.2d 1174, 1184-85 n.113 (D.C. Cir. 1987), the court pointed out
that:
[The Supreme] Court has repeatedly held that
probable cause to believe that a container in
a vehicle holds contraband -- in effect,
probable cause to seize the container -- will
not justify a warrantless opening thereof.
The Williams court concluded that:
[T]he contents of a package cannot be deemed
in plain view unless [the information
available to the officer] convinces the
officer to a reasonable certainty that the
container holds contraband or evidence of a
crime. This situation is clearly distinguish-
able from one involving a plain view seizure.
Probable cause -- a predictive judgment that
further investigation will yield particular
results -- suffices to exempt the seizure
from Fourth Amendment warrant requirements.
In the present type of situation the
information in 'plain view' must be good
enough to eliminate all need for additional
search activity. This can only occur when
sensory information acquired by the officer
rises to a state of certitude, rather than
mere prediction, in regard to the object of
the investigation. This level of conviction
must be objectively reasonable in light of
the officer's past experience and training,
and capable of verification by a reviewing
court.
Id. at 1184-85 (footnote omitted).
It therefore appears that under the Fourth Amendment to
the United States Constitution a police officer may open a
package under the plain view theory only if the contents of the
container were identifiable to a virtual certainty.2 The police
are required to have more than probable cause to inspect the
contents of the package; the officer can search the package only
when the information which the officer has "rises to a state of
certitude, rather than mere prediction[.]" Williams, 822 F.2d at
1184-85.
In deciding this case, it appears that Judge Tunley
applied the probable cause test which the supreme court set forth
in Reeves.3 To the extent that Reeves permits the police to
seize contraband based on probable cause, the Reeves case is
consistent with federal law. Texas v. Brown, 460 U.S. 730, 103
S.Ct. 1535, 75 L.Ed.2d 502. However, to the extent that Reeves
authorizes the police to search a closed container based on
probable cause it is not consistent with federal law.4
In any event, under federal law the police may not open
a package under the plain view theory based merely on probable
cause. We must apply the federal standard in deciding the
Newhalls' rights under the Fourth Amendment to the United States
Constitution. We accordingly remand this case to Judge Tunley to
apply the federal standard to the facts of this case.5 We retain
jurisdiction.
REMANDED.
BRYNER, C.J., concurring.
Although I agree with, and join in, the court's
decision, I write separately to add three points. First, the
court's opinion relies heavily on Arkansas v. Sanders, 442 U.S.
753, 764 n.13 (1979), and United States v. Williams, 822 F.2d
1174, 1184-85 & n.113 (D.C. Cir. 1987), in formulating the
"federal standard" that we ask the trial court to apply on
remand. The opinion gives only secondary mention to the standard
articulated in the three-justice concurrence in Texas v. Brown,
460 U.S. 730, 747-51 (1983). Although I view all three of these
cases as making essentially the same point in slightly different
language, I find the Texas v. Brown concurrence the most lucid
explanation.
The formulation of the standard in Texas v. Brown seems
particularly compatible with the notion of immediate apparency
that this court recently addressed in Brown v. State, 809 P.2d
421, 423-24 (Alaska App. 1991), and that the Alaska Supreme Court
addressed in Reeves v. State, 599 P.2d 727, 728-40 (Alaska 1979).
Although dicta in the majority opinion in Reeves somewhat blurred
the distinction between plain view seizures and searches, I do
not believe that Reeves is inconsistent with this standard. For
these reasons, I would prefer to rely on the Texas v. Brown
concurrence as describing the standard to be applied on remand.
Second, while the court's opinion simply remands for
application of the "federal standard," I would make it clear that
my decision to follow this standard is based on state
constitutional law, that is, on the Alaska Constitution's
provisions guaranteeing freedom from unreasonable searches and
seizures and the right to privacy. Alaska Const. art. I, 14,
22. Our espousal of the "federal standard" should not, and, in
my view, does not, hinge on its current or future viability under
the federal constitution.
Third, with regard to the proper application of the
"federal standard," I would raise a note of caution against
placing undue emphasis on degree of certainty as the sole
determinant of a proper warrantless search. Although a high
degree of certainty as to the presence of contraband may well be
a prerequisite to a warrantless search of a closed, opaque
container under the plain view doctrine, it is not the only
prerequisite. As the Alaska Supreme Court made clear in Erickson
v. State, 507 P.2d 508, 512 (Alaska 1973), even "abundant
probable cause" does not negate the warrant requirement.
Degree of certainty, or level of probable cause, is not
in and of itself sufficient. The core concern of the warrant
requirement is privacy. As Texas v. Brown, Arkansas v. Sanders,
and United States v. Williams establish, the plain view exception
is founded on the theory that there can be no reasonable expecta
tion of privacy when contraband is in plain view. It is for this
reason that the doctrine allows the warrantless opening of a
properly seized container -- such as a bottle or a plastic bag --
which is transparent and unmistakably reveals its contents to be
contraband. No reasonable person could maintain that any vestige
of privacy remains in the container.
This same rationale must control when the state invokes
the plain view doctrine to justify the warrantless opening of a
container that is opaque, rather than transparent. The pivotal
inquiry must be whether observation of the unopened container
amounts to a virtual, if not literal, observation of its contents
-- an "equivalent to the plain view of [the contraband] itself."
Texas v. Brown, 460 U.S. at 751. If such equivalency exists, all
reasonable expectation of privacy in the contents of the
container ceases, and the plain view doctrine allows its
warrantless opening; if not, a warrant must be obtained, or some
other recognized exception to the warrant requirement shown. For
purposes of the plain view doctrine, it matters little if
observations involve sight, sound, smell, or feel, provided that
they are properly made and do not result from separate violations
of the warrant requirement.
It is crucial to draw the distinction between this
notion of literal transparency, on the one hand, and a mere
increase in the degree of certainty as to the presence of
contraband, on the other. When a closed container, by its nature
and the circum- stances surrounding its use, is capable of
simultaneously holding both legitimate articles and contraband,
even the highest degree of certainty that contraband is present
will not be equivalent to a plain view of its contents. In such
a case the certain presence of contraband cannot in itself
extinguish the owner's continued right to expect privacy as to
other contents, which may be legitimate. A paradigm of this
situation is the suitcase in Erickson, the warrantless opening of
which the Alaska Supreme Court refused to justify under the plain
view doctrine, despite a heightened level of probable cause. 507
P.2d at 513-14.
This distinction between virtual observation of a
container's contents and increased certainty as to the presence
of contraband lies at the heart of Justice Stevens' reference, in
Texas v. Brown, to "single purpose containers which `by their
very nature cannot support any reasonable expectation of privacy
because their contents can be inferred from their outward
appearance.'" 460 U.S. at 750-51 (emphasis added) (quoting
Arkansas v. Sanders, 442 U.S. at 764-65 n.13). I believe we must
honor this distinction if we are to avoid drifting away from the
sound moorings of the plain view doctrine, into the uncharted
waters of "super" probable cause -- waters vast enough to engulf
the entire warrant requirement.
_______________________________
1. Justices Boochever and Matthews dissented. They
agreed with the majority's statement of the requirements for a
plain view seizure and also with the test for determining whether
the incriminating nature of the evidence was immediately
apparent. Justices Boochever and Matthews stated that they would
have remanded the case for a further hearing based upon these
standards. Reeves, 599 P.2d at 743.
2. In Texas v. Brown, three Justices of the Supreme
Court addressed the question of when the police could search a
container under the plain view exception to the warrant
requirement. 460 U.S. at 747-51. The Brown case involved an
officer seizing a green balloon which the officer found in the
interior of Brown's car. Justices Stevens, Brennan, and Marshall
stated that the officer could search the contents of the balloon
only under certain limited circumstances. These Justices stated
that the officer could search the balloon if "the balloon could
be one of those rare single-purpose containers which `by their
very nature cannot support any reasonable expectation of privacy
because their contents can be inferred from their outward
appearance.'" Id. at 750-51. (quoting Sanders, 442 U.S. at 764-65
n.13.) They also stated the test as follows: "[v]iewing it where
he did could have given the officer a degree of certainty that is
equivalent to the plain view of the heroin itself." Brown, 442
U.S. at 751. The court concluded that "there was virtual
certainty that the balloon contained a controlled substance."
Id.
3. We recognize, however, that Judge Tunley did say
that Trooper Kitchenmaster's conclusion was "a stronger
conclusion than the probable cause requirement discussed in
Reeves. . . ."
4. We note that the Reeves case involved the seizure
and search of a balloon which contained drugs. It is possible
that in deciding the case the supreme court was influenced by the
fact that a "balloon could be one of those rare single purposes
containers which by their very nature cannot support any
reasonable expectation of privacy because their contents can be
inferred from their outward appearance." Brown, 460 U.S. at 750-
51 (Stevens, J., concurring). See also Brown v. State, 809 P.2d
421, 423-24 (Alaska App. 1991).
5. In evaluating whether Trooper Kitchenmaster's
information concerning the contents of the package rose "to a
state of certitude," Judge Tunley could properly consider the
circumstances known to the trooper at the time of the search. In
Brown v. State, we held that a correctional officer could
consider the circumstances under which he saw a balloon in
concluding that it was "immediately apparent" to the correctional
officer that the balloon contained drugs. Brown, 809 P.2d at
423.
[A]mple evidence was presented to establish that
the contraband nature of the balloon seized from
Brown was immediately apparent to the officer who
seized it. [Officer] Drew saw [Inmate] Brown
swallow an object that had just been handed to him
[by a visitor] during a contact visit at a
correctional facility. Under the circumstances,
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 . . . 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.
Id. at 423-24. See also United States v. Williams, 822 F.2d
1174, 1184 (D.C. Cir. 1987); 3 W. LaFave, Search and Seizure,
7.2(d) at 71-74.
