Hinkel v. Anchorage

618 P.2d 1069, 1980 Alas. LEXIS 627

• Court: Alaska Supreme Court
• Decided: October 24, 1980
• Docket: 4508
• Status: Published

Opinions

OPINION

Before RABINOWITZ, C. J., and CON-NOR, BOOCHEVER,* BURKE and MATTHEWS, JJ.

MATTHEWS, Justice.

On February 26, 1978, Anchorage police officer William Thompson witnessed an automobile accident involving Ida Marie Hinkel. Hinkel’s vehicle, traveling at a high rate of speed, ran a red light and smashed into a vehicle in the intersection.

Thompson first assisted the driver of the other vehicle. He then turned his attention to Hinkel who was still sitting in her car in the middle of the street. Thompson asked Hinkel to show him her driver’s license and to get out of the car. Both requests were refused. He then advised Hinkel that if she did not cooperate she would be placed under arrest. The officer then opened the right front door of the vehicle and asked her to step out of the car. She again refused. Thompson advised her that she was under arrest, took hold of her and her purse which was next to her on the front seat, and proceeded to pull her out of the vehicle. In the course of the struggle the purse was left in the vehicle. Hinkel was escorted by Thompson to the back seat of his patrol car.

Shortly thereafter a wrecker appeared in response to Thompson’s call. Another policeman, Officer Cox, also arrived and began to assist the wrecker driver. Cox took Hinkel’s purse from the vehicle and brought it to Thompson in the patrol car, remarking that the purse was quite heavy. Thompson opened the purse and discovered that it contained a loaded handgun.

Thompson testified that the purse was taken from Hinkel’s vehicle because it was going to be towed away and that it would have been normal procedure to return the purse to a person under arrest in Hinkel’s position, but not without first searching it.

Hinkel was subsequently charged with carrying a concealed weapon in violation of an Anchorage Municipal ordinance, and with reckless driving. The district court granted her motion to suppress the handgun. The Municipality petitioned for review and the superior court reversed. Hinkel was then convicted of the concealed weapon charge after a jury trial. She has appealed from that conviction, claiming that the search of her purse was unlawful.

A search conducted incident to an arrest is an exception to the general rule that no search is lawful without a warrant.¹ The question for decision in this case is whether the search of Hinkel’s purse falls within that exception.

A container on the person of an ar-restee at the time of the arrest may be seized, opened, and searched as an incident to the arrest, Middleton v. State, 577 P.2d 1050, 1055 (Alaska 1978); McCoy v. State, 491 P.2d 127, 139 (Alaska 1971), unless the container is too small to contain a weapon and the arrest is for a crime, such as reckless driving, for which no evidence could exist in the container. Middleton v. State, 577 P.2d at 1055; Zehrung v. State, 569 P.2d 189, 199-200 (Alaska 1977). This is so even though it is not strictly necessary to open a closed container found on the person of one who is arrested in order to protect the arresting officer from the use of a hidden weapon or to prevent the destruction of evidence. These goals can ordinarily be accomplished simply by seizing the container and removing it from the reach of the arrestee. The most complete discussion of this point is found in McCoy v. State, 491 P.2d 127, 131-39 (Alaska 1971).

In McCoy, the defendant was arrested for attempting to use a forged airline ticket. He was taken to the police station and while in an interrogation room a package was found in his jacket which he had draped over the back of the chair in which he was seated. The package was opened without a warrant and found to contain cocaine. The contention was made that the two reasons justifying searches incident to arrests, protecting the arresting officer and preventing the destruction of evidence, suggested by Mr. Justice Frankfurter in his dissent in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950) and relied on by the majority in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), serve as limitations on searches of the person of the arrestee as well as those of the area within his immediate control. Justice Erwin, writing for this court, considered the argument and rejected it:

Our dissenting brothers suggest that Frankfurter’s twin rationales also supply the analysis for judging the propriety of searches of the arrestee’s person as well as his environs. They reason that after the officer had taken possession of the packet there was no danger that McCoy might remove from it a weapon, an implement of escape, or destructible evidence. Consequently, they argue, the exigency justification of the search evaporated and the warrant requirement attached.

We do not believe that this is a correct interpretation of Chimel. While it is clear from Chimel that the twin rationales suggested by Frankfurter supply the appropriate analytic scheme to define the area “within [the arrestee’s] immediate control,” it by no means follows that they also supply the appropriate analysis for limiting searches of the arrestee’s person .... Chimel was concerned not with searches of the person, but with the wide ranging warrantless searches of dwellings which Rabinowitz had legitimized....

. .. [T]he Court did not intend to limit the intensity of searches of the person incident to a lawful arrest but was concerned instead only with limiting searches of the area surrounding him when he was arrested....

... Searches of the person, on the other hand, have their own inherent physical limitations. Thus, there is less danger that this exception to the warrant requirement will become unrestrained.

491 P.2d at 133-4 (footnotes omitted). The court in McCoy also concluded that the exigencies of the search were to be judged at the time of the arrest rather than at the time that the item is opened:

The exigent circumstances were clearly present when the packet was in McCoy’s possession at the time of arrest; the search once justifiable, does not violate the fourth amendment remedy because the exigency is removed at the time the search is conducted.

491 P.2d at 137 (footnote omitted).

We have most recently reaffirmed McCoy in Middleton v. State, 577 P.2d 1050, 1055 (Alaska 1978). Middleton was arrested for armed robbery of a liquor store, taken to the police station, and placed in an interrogation room. Twenty minutes to a half hour later she was asked to take everything out of her pockets and place them on a table. She placed her billfold there and a policeman took it and searched it. He found a folded piece of paper which he opened and discovered that it contained a sketch of the floor plan of the premises which had been robbed. Middleton argued that this search was unlawful because once the billfold was in the possession of the police there was no justifying exigency, since there was then no danger that its contents could be destroyed. We unanimously rejected this argument on the authority of McCoy. 577 P.2d at 1055.

Certain containers in the possession of one who is arrested and which are located in the immediate area of the arrest may be seized but not searched under the incident to arrest exception. We so held in Metcalfe v. State, 593 P.2d 638, 640 (Alaska 1979). Metcalfe was arrested while carrying a box in his arms. He was taken to the police station where the box was searched. We held that the search of the box could not be upheld under the incident to arrest exception because no exigent circumstances justified it. In so holding we quoted the following from United States v. Chadwick, 433 U.S. 1, 15, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538, 551 (1977):

Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.

593 P.2d at 640.

The question in this case is whether the search of Hinkel’s purse is to be governed by Middleton and McCoy or by Metcalfe. The answer, we believe, is suggested by the language quoted from Chadwick in Met-calfe, set forth above, which pointedly excepts personal property “immediately associated with the person of the arrestee” from the requirement that an exigency must exist to justify a search.

This language must mean that containers found in clothing pockets may be searched. In our view it also suggests that containers such as purses which are often worn on the person and generally serve the same function as clothing pockets are also excepted from the strict exigency requirement. It would be possible, of course, to treat containers found in clothes pockets, such as billfolds, differently from items such as purses which are not carried in pockets but serve the same purpose. However, we can think of no reasons to justify such a distinction. We conclude that Hink-el’s purse was property immediately associated with her person and, therefore, was properly searched incident to her arrest.²

Our conclusion is supported by a recent case of the Court of Appeals for the Seventh Circuit, United States v. Berry, 560 (7th Cir. 1977), vacated on other grounds, 571 F.2d 2 (7th Cir. 1978), cert. denied, 439 U.S. 840, 99 S.Ct. 129, 58 L.Ed.2d 138 (1978). The court noted the distinction made in Chadwick between personal property which is immediately associated with the person of the arrestee and that which is not:

The court appears to be distinguishing-for purposes of whether a warrant is required to search property in police custody that was seized from a suspect at the time of the arrest-between searches of an arrestee’s clothing, as in Edwards, or items that were in his pockets, as in Robinson, from searches of other possessions, such as luggage, that were within his immediate control. Warrantless searches of the former items after they come in police custody can be characterized as searches of the arrestee’s person because they do not involve any greater reduction in the arrestee’s expectations of privacy than that caused by the arrest itself. Warrantless searches of the latter items, however, affect privacy interests other than those reduced by the arrest itself and thus can be conducted only so long as the danger exists that the arres-tee might gain access to the property to seize a weapon or destroy evidence.

560 F.2d at 864. The item seized in Berry was an attache case. The court concluded that it was more like luggage than property immediately associated with the person and indicated that a purse would be within the latter category:

Returning .to the instant case, we believe that the search of the attache case is better characterized as a search of possessions within the arrestee’s immediate control than as a search of his person. First, as a matter of common usage, a briefcase is not an item carried on an individual’s person in the sense that his clothing or items found in his pockets are. Second, as was true of the footlocker in Chadwick, the privacy interest in the attache case here centered on its contents rather than on the container itself. A search of the interior constituted “a far greater intrusion into fourth amendment values” than either Wilson’s arrest or the im-poundment of the case. Finally, unlike a purse that might be characterized as “immediately associated with the person of the arrestee” because it is carried with the person at all times, the attache case here was more like luggage in that Wilson was not carrying it when he left the building, but rather removed it from an auto trunk immediately before his arrest.

Id. 3

As we have indicated there is a line to be drawn between containers which may be searched incident to an arrest and those which may not be, once any danger that the arrestee may gain access to the container to seize a weapon or destroy evidence no longer exists. Such a line is required if Middleton and McCoy on the one hand and Met-calfe on the other are to be reconciled. We think such a reconciliation is possible and adopt the approach suggested by Chadwick to accomplish it.

We recognize, however, that it may legitimately be questioned whether the line drawn is sufficiently perceptible to be observed in practice. Ultimately, of course, experience will give us the answer. We think that the only logical alternative to today’s decision would be to overrule Mid-die ton and McCoy. We could then adopt the rule that no container found on the person of an arrestee could be searched without a warrant so long as the alternative of seizure and removal from the reach of the arrestee were available. If the ar-restee desired the return of the container prior to his release from custody he could consent to its search. While such a rule would not be difficult to follow, we are not persuaded that overruling Middleton and McCoy is necessary or desirable.

AFFIRMED.

1 . Middleton v. State, 577 P.2d 1050 (Alaska 1978); Zehrung v. State, 569 P.2d 189 (Alaska 1977); Schraff v. State, 544 P.2d 834 (Alaska 1975); McCoy v. State, 491 P.2d 127 (Alaska 1971).

2 . This holding is consistent with the limitations expressed in McCoy v. State, 491 P.2d 127, 138 (Alaska 1971) and Zehrung v. State, 569 P.2d 189, 199-200 (Alaska 1977) referred to at page 1070, supra, because the search involved here was for weapons not evidence.

3 . Other authorities supporting our view that a purse is an item immediately associated with the person are: United States v. Moreno, 569 F.2d 1049, 1052 (9th Cir. 1978), cert. denied 435 U.S 972, 98 S.Ct. 1615, 56 L.Ed.2d 64 (1978); United States v. Venizelos, 495 F.Supp. 1277 (S.D.N.Y.1980); Sumlin v. State, 587 S.W.2d 571, 577 (Ark.1979) (en banc); People v. Harris, 164 Cal.Rptr. 296, 303, 105 Cal.App.3d 204 (Cal.App. 1980); People v. Flores, 160 Cal.Rptr. 839, 844, 100 Cal.App.3d 221 (Cal.App.1979); State v. Sabater, 601 P.2d 11, 13-14 (Kan.App.1979), cert. denied 446 U.S. 918, 100 S.Ct. 1851, 64 L.Ed.2d 272 (1980); State v. Thompson, 596 P.2d 174, 179 (Kan.App.1979); Dawson v. State, 40 Md.App. 640, 395 A.2d 160, 167 (1978); State v. Webb, 560 S.W.2d 318 (Mo.1977). Contra United States v. Farrar, 470 F.Supp. 128, 131 (S.D.Miss.1979); People v. Redmond, 73 Ill.App.3d 160, 28 lll.Dec. 774, 780-85, 390 N.E.2d 1364, 1370-75 (1979); Ulesky v. Florida, 379 So.2d 121, 125-26 (Fla.App.1979).