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Anderson v. State (05/28/2004) ap-1936
Anderson v. State (05/28/2004) ap-1936
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JEFFREY W. ANDERSON, )
) Court of Appeals No. A-
8421 Appellant, )
Trial Court No. 1JU-S02-211 CR
)
v. ) O P I N I O
N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1936 May
28, 2004]
)
Appeal from the Superior Court, First Judi
cial District, Juneau, Larry R. Weeks, Judge.
Appearances: Margi A. Mock, Assistant Public
Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Timothy
W. Terrell, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
MANNHEIMER, Judge, concurring.
This case requires us to decide whether a search of a
prisoner complied with the Alaska Constitution as construed by
our supreme court over twenty years ago in Zehrung v. State.1
Even though we conclude that the search violated Zehrung, we
affirm Jeffrey W. Andersons conviction because the superior court
found that the evidence would have been discovered inevitably,
and the superior courts findings are supported by the record.
Background facts and proceedings
We first considered this case in Anderson v. State,
Alaska App. Memorandum Opinion and Judgment No. 4796 (November
26, 2003) 2003 WL 22800672, and remanded the case to the superior
court for additional findings regarding the search of Anderson by
a correctional officer at the Lemon Creek Correctional Center
(Lemon Creek).
On December 30, 2001, Juneau Police Officer Joel Hinz
saw Anderson driving a van. Officer Hinz knew from a recent
contact that Anderson did not have a drivers license. Officer
Hinz called dispatch and learned that Anderson still did not have
a drivers license and that there was an outstanding bench warrant
for Andersons arrest for failure to appear. Bail on the bench
warrant was set at $1,000.
Officer Hinz stopped Andersons vehicle and arrested
Anderson on the outstanding bench warrant and also arrested him
for the drivers license offense. Officer Hinz searched Anderson
but did not find any weapons or contraband. Officer Hinz told
Anderson that his bail was $1,000 on the bench warrant.
Officer Hinz drove Anderson to Lemon Creek. When they
arrived at Lemon Creek, Correctional Officer Leigh Bauer
accompanied Officer Hinz and Anderson into the sally port, the
area of the facility where a person is taken before being placed
in a holding cell.
Officer Bauer searched Anderson and found, among other
things, a knife and a tupperware type plastic container, which
was approximately 2 1/2 inches across and 3/4 inch thick, and
which had a white top and a clear plastic bottom. She handed it
to Officer Hinz, who saw inside the container a white powdery
substance and a red straw, approximately one and one-half inches
long, with a spoon-like end. (Alaska State Crime Lab tests later
reported that the confiscated plastic container contained trace
amounts of methamphetamine.)
Officer Bauer placed Anderson in the holding cell.
Officer Hinz again told Anderson the amount of his bail, and for
the first time asked Anderson if he could post bail. Officer
Hinz did not recall Anderson responding to this question. Once
Anderson was placed in the holding cell, he was given the
opportunity to make a phone call. However, Anderson did not post
bail until January 3, 2002, four days after his arrest.
The grand jury indicted Anderson on one count of fourth-
degree misconduct involving a controlled substance.2 Anderson
moved to suppress evidence on the grounds that the initial search
by the correctional officer was illegal. Anderson argued that
the search was illegal because he was not given a reasonable
opportunity to post bail before the search was conducted. The
superior court denied Andersons motion, ruling that the search
was permissible because it was merely a weapons search, not an
inventory search. Anderson entered a Cooksey3 plea preserving
his right to appeal the denial of the suppression motion.
On appeal, we remanded the case to the superior court
for additional findings regarding the search and the issue of
inevitable discovery.
On remand, Superior Court Judge Larry R. Weeks found
that Officer Bauer was not conducting a weapons search when she
discovered the evidence. He found that she was collecting
Andersons possessions because he would not be allowed to take
them into the facility. Although Judge Weeks questioned the
validity of the search under Zehrung, he found that Officer Bauer
did not knowingly or intentionally violate Andersons rights.
Discussion
Anderson argues that the trial court erred in refusing
to suppress the methamphetamine found on his person because the
search at Lemon Creek was an illegal pre-incarceration inventory
search. In Zehrung, the Alaska Supreme Court ruled that when a
person is arrested on a minor charge for which bail has been set,
the person must have a reasonable opportunity to raise bail
before being subjected to booking procedures and a pre-
incarceration inventory search.4
In Gray v. State,5 we further defined the States
ability to search an arrestee under the rule established in
Zehrung.6 Gray was arrested on an outstanding $500 misdemeanor
warrant.7 After an initial search for weapons by the arresting
officer, Gray was transported to Matanuska Pretrial Correctional
Facility.8 There, a correctional officer asked whether Gray had
money for bail, and Gray replied that he hoped that a friend was
bringing it.9 Before Gray had an opportunity to arrange for
bail, the correctional officer searched Gray and removed all
articles from his pockets.10
While the State characterized the search Gray underwent
as a patdown, we ruled that the routine emptying of an arrestees
pockets ... cannot be justified merely by labeling the procedure
a patdown.11 We defined a patdown as an external probing of
clothes and articles for signs of possible weapons.12 We
concluded that the scope of a patdown is exceeded when the search
extends beyond the exterior of a persons clothing or possessions
and intrudes into pockets and closed containers.13 In a patdown,
an officer can intrude beyond the outer clothing of a suspect
only if the initial exploration discloses potential weapons.14
We also rejected the argument that the policy of
removing all articles from arrestees pockets was necessary to
prevent contraband from entering the prison. We emphasized that
in order to justify a pre-incarceration inventory search of a
person arrested for an offense with a pre-set bail, the State
must demonstrate individualized exigency requiring the search.15
Since the State could not demonstrate this exigency, but searched
Gray merely by institutional policy, we ruled that the State had
failed to justify the search.16
Andersons bail on the misdemeanor warrant in this case
was $1,000 and the bail for the license offense was $50.
Although the total bail required is slightly more than double the
bail in Gray, we conclude that Zehrung should apply to this case
as well. Officer Bauer testified that the policy at
Lemon Creek is to do a thorough search in the sally port before
we let [a prisoner] into the facility. She said that [w]e got
into the sally port. I conducted the search and I pulled the
items out of his pockets and handed them over. She also
testified that [o]nce [Andersons] pockets were emptied then I did
a pat search of his person.
We recognized in Gray that a patdown search for weapons
is permissible when a prisoner is brought to the jail for a
minor offense for which bail has been set on the bail schedule or
on the warrant, but that the search for weapons can only be an
external probing of clothing and articles for signs of possible
weapons. The search can proceed beyond that initial patdown only
if the patdown discloses potential weapons.17
The Department of Corrections has promulgated
regulations governing a search on admission to a corrections
facility. 22 AAC 05.010(a) provides that [f]acility staff
members shall frisk a prisoner and hand-carried items for weapons
or other contraband immediately upon entrance to the facility.
The Department of Corrections defines contraband broadly.18
Almost any item felt on a prisoner in a patdown search could
satisfy the Departments definition of contraband and be subject
to seizure under a search that followed these regulations. But
the State neither argues that Officer Bauer followed this
procedure, nor that the procedure described in the regulation
complies with Zehrung.
Officer Bauer immediately emptied Andersons pockets
following the procedure she testified was used at Lemon Creek.
Judge Weeks found that Officer Bauer emptied Andersons pockets
because Anderson would not be allowed to take the items in his
pockets into the institution not because it was a weapons
search. Thus, Officer Bauers search could not be justified as a
search for weapons as we discussed in Gray.
The State argues that even if Officer Bauer erred by
performing a pre-incarceration inventory search, we should
nevertheless affirm the denial of Andersons motion to suppress
because the methamphetamine is admissible under the inevitable
discovery doctrine.19 The State asserts that under the
Departments regulations, Anderson would have been subject to a
full search because he did not post bail within an hour.20
Anderson claims that the State raises this argument for
the first time on appeal. However, the State raised the
inevitable discovery argument in its opposition to Andersons
motion to suppress.
The Alaska Supreme Court has defined the inevitable
discovery doctrine as follows: if the prosecution can show, by
clear and convincing evidence, that illegally obtained evidence
would have been discovered through predictable investigative
processes, such evidence need not be suppressed as long as the
police have not knowingly or intentionally violated the rights of
the accused in obtaining that evidence.21
Judge Weeks found that the State showed by clear and
convincing evidence that the methamphetamine would have been
discovered inevitably. He further found that Officer Bauer, who
testified that she was following Lemon Creek procedure, did not
intentionally or knowingly violate Andersons rights. Judge
Weekss findings are supported by evidence in the record, and he
found that Andersons failure to post bail was not influenced by
the discovery of the contraband.
Because Anderson was under arrest on misdemeanor
charges with bail specified on the warrant or on the bail
schedule, the search of Anderson should have complied with
Zehrung, but did not. Even though the search violated Zehrung,
the evidence found on Anderson would have been discovered
inevitably. Accordingly, we must affirm Andersons conviction.
Conclusion
The judgment of the superior court is AFFIRMED.
MANNHEIMER, Judge, concurring.
Two questions are potentially presented in this case.
First, did the search of Andersons person by corrections
officials at the Lemon Creek Correctional Facility violate the
search and seizure clause of the Alaska Constitution (Article I,
Section 14) as construed by our supreme court in Zehrung v.
State, 569 P.2d 189 (Alaska 1977), as modified on rehrg., 573
P.2d 858 (1978)? Second, if the search was illegal, did this
illegal search actually harm Anderson, given the fact that
Anderson failed to post bail and remained in jail for the next
four days?
The answer to the second question is no; Anderson was
not harmed by the search. We therefore need not resolve the
first question (the legality of the search).
Anderson was arrested for driving without a valid
drivers license; at the same time, he was arrested on a bench
warrant that had been issued when he failed to appear in court.
Andersons total bail was $1050 ($1000 for the bench warrant, and
$50 for the driving offense).
When Anderson was brought to the Lemon Creek
Correctional Facility, before he had a chance to post this bail,
corrections officials removed and examined the entire contents of
his pockets. The corrections officer who performed this search
testified that this was a standard procedure at Lemon Creek.
Twenty-five years ago, in Zehrung, the Alaska Supreme
Court declared that it is illegal to subject a prisoner arrested
for a minor offense to this type of inventory search until it is
clear that the prisoner will be unable to post bail and, as a
consequence, will in fact be placed among the general jail
population. Id. at 194-95. The testimony presented in Andersons
case suggests that, even though Zehrung has been the law of this
state for a quarter of a century, the Department of Corrections
routinely violates Zehrung (at least at the Lemon Creek
Correctional Facility) by conducting thorough searches of newly
arrived arrestees without giving them the opportunity to post
bail.
However, the superior court concluded that the drugs
found in Andersons possession would inevitably have been
discovered because, as it turned out, Anderson could not post
bail and thus, within a short time, the Department of
Corrections became authorized to conduct the same thorough-going
search of his person and possessions.
It is uncontested that Anderson did not post bail and
that he remained in jail for another four days. But obviously,
if the discovery of the drugs had led immediately to a new felony
drug charge against Anderson, or even to increased bail on
Andersons existing charges (failure to appear and driving without
a valid license), this would tend to defeat the States argument
that Anderson would inevitably have been unable to post bail and
secure his release before corrections officers conducted the full
inventory search allowed under Zehrung.
Indeed, if Anderson had testified that the discovery of
the drugs affected his motivation to try to round up the bail
money (by convincing him that it would be pointless to try to
post the $1050, given the fact that the authorities could easily
get the court to set a much higher bail by filing a felony drug
charge), we would question the superior courts finding of
inevitability.
But Anderson never suggested that his failure to post
bail stemmed from anything other than his inability to secure the
needed $1050. Moreover, the superior court expressly found that
the discovery of the drugs did not affect Andersons ability to
post bail. This being so, I agree with the superior court that,
even if the Lemon Creek staff violated Andersons constitutional
rights by thoroughly searching his person upon his initial
arrival at the jail, Anderson would inevitably have been
subjected to the same type of search a short time later. For
this reason, I conclude that any violation of Zehrung did not
prejudice Anderson, and he was not entitled to suppression of the
drugs.
_______________________________
1 569 P.2d 189 (Alaska 1977), modified, 573 P.2d 858 (Alaska
1978).
2 AS 11.71.040(a)(3)(A) (possession of methamphetamine).
3 See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska
1974).
4 Zehrung, 569 P.2d at 195.
5 798 P.2d 346 (Alaska App. 1990).
6 Id. at 349-51.
7 Id. at 347.
8 Id.
9 Id. at 348.
10 Id.
11 Id. at 350.
12 Id. at 350 (citing 3 W. LaFave, Search and Seizure
9.4(b) (1987)).
13 Id. at 350.
14 Id.
15 Id. at 351.
16 Id. at 353.
17 Id. at 350.
18 22 AAC 05.660(b) provides:
(b) In this chapter, ... contraband means any of the
following items that have not been specifically approved,
authorized, or prescribed by the proper authorities for a
prisoner to obtain, make, or possess:
(1) weapons, including firearms, explosives, knives,
hacksaw blades, tear gas, dangerous chemical agents, or any
tool or other object that may be used as a weapon, from
which a weapon may be fashioned, or that is intended to be
perceived as a weapon;
(2) controlled substances, the possession of which is
punishable by either criminal or civil penalties, and any
other type of medication;
(3) alcohol, including wine, distilled spirits, home brew,
and any other type of alcoholic substance;
(4) cameras, sound or video recorders, or any electronic or
mechanical receiving or transmitting equipment;
(5) any article, including keys, tools, electronic or
mechanical devices, and identification information, intended
to be used as a means of facilitating an escape; and
(6) any other article, including money, toiletries, books,
food, mail, and pictures, that is introduced, taken, or
conveyed into a facility, or made, obtained, or possessed in
a facility in a manner intended to frustrate or evade
detection.
19 See Smith v. State, 948 P.2d 473, 478-81 (Alaska 1997).
20 22 AAC 05.010(b) & (c) provide:
(b) A full and complete search of the prisoner and his or her
personal effects must be made to complete the admission
process. The purpose of the search is to account for property,
seize contraband, or ascertain the prisoners true identity.
The staff member shall require the prisoner to undress as part
of the search upon admission. Absent exigent circumstances, a
staff member of the same sex shall conduct a search of the
person. A search may be deferred while a prisoner is
incapacitated.
(c) Notwithstanding (b) of this section, the search may not
take place if the prisoner is able to post bail or otherwise
arrange release within one hour after entrance into the
facility.
21 Smith, 948 P.2d at 481.
