Anderson v. State

91 P.3d 984, 2004 Alas. App. LEXIS 106, 2004 WL 1191067
CourtCourt of Appeals of Alaska
DecidedMay 28, 2004
DocketA-8421
StatusPublished
Cited by1 cases

This text of 91 P.3d 984 (Anderson v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. State, 91 P.3d 984, 2004 Alas. App. LEXIS 106, 2004 WL 1191067 (Ala. Ct. App. 2004).

Opinions

OPINION

STEWART, Judge.

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. Anderson’s conviction because the superi- or court found that the evidence would have been discovered inevitably, and the superior court’s 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 driver’s license. Officer Hinz called dispatch and learned that Anderson still did not have a driver’s license and that there was an outstanding bench warrant for Anderson’s arrest for failure to appear. Bail on the bench warrant was set at $1,000.

Officer Hinz stopped Anderson’s vehicle and arrested Anderson on the outstanding bench warrant and also arrested him for the driver’s 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 [986]*986“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 Anderson’s 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 Anderson’s 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 Anderson’s 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 State’s ability to search an arrestee under the rule established in Zehrung.6 Gray was arrested on an outstanding $500 misdemean- or 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 arrestee’s 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 [987]*987weapons.12 -We concluded that the scope bf a “patdown” is exceeded when the search “extends beyond the exterior of a person’s 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

Anderson’s 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 Zeh-rung 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 [Anderson’s] pockets were emptied then I did a pat search of his person.”

We recognized in Gray

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Related

Anderson v. State
91 P.3d 984 (Court of Appeals of Alaska, 2004)

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Bluebook (online)
91 P.3d 984, 2004 Alas. App. LEXIS 106, 2004 WL 1191067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-state-alaskactapp-2004.