Jackson v. State

791 P.2d 1023, 1990 Alas. App. LEXIS 43, 1990 WL 61624
CourtCourt of Appeals of Alaska
DecidedMay 11, 1990
DocketA-2987
StatusPublished
Cited by20 cases

This text of 791 P.2d 1023 (Jackson 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
Jackson v. State, 791 P.2d 1023, 1990 Alas. App. LEXIS 43, 1990 WL 61624 (Ala. Ct. App. 1990).

Opinions

OPINION

PER CURIAM.

Sterling M. Jackson pled no contest and was convicted of one count of misconduct involving a controlled substance in the fourth degree, cocaine, a class C felony, AS 11.71.040(a)(3)(A). Jackson reserved the right to appeal the trial court’s denial of his [1024]*1024motion to to suppress. See Cooksey v. State, 524 P.2d 1251 (Alaska 1974). We reverse.

Anchorage Police Officer Matthew Dahl was on routine patrol near 27th and Arctic in Anchorage on September 24, 1988, at 8:05 a.m. Officer Dahl observed Jackson walking along Arctic. Upon recognizing Jackson, Officer Dahl ran a warrant cheek and was informed that Jackson had an outstanding failure to appear warrant. Officer Dahl did not know at the time of the arrest the underlying charges for the warrant which were shoplifting and driving while license suspended. Officer Dahl exited his car, arrested and handcuffed Jackson. Officer Dahl then searched Jackson for weapons.

Officer Dahl located a wallet approximately three inches by two inches by one-half inch in Jackson’s left-breast pocket. He stated he had found razor blades, stiletto-type knives, and small sheath knives that would fit in a wallet this size. After removing the wallet, he opened it looking for the type of weapons described. In the middle of the wallet, he discovered a small baggie of white powder. The white powder was tested and was found to be .17 grams of cocaine. Officer Dahl kept the baggie and returned the wallet to Jackson. Officer Dahl testified that he does this type of search for anyone he is going to transport, not only for his safety but for the safety of other law enforcement personnel down the line.

Officer Dahl also testified that he had stopped Jackson five to ten times on prior occasions and arrested him on about half of those occasions. He indicated that Jackson had never had any concealed weapons on his person. Officer Dahl stated he believed those arrests to be for shoplifting, but did have some knowledge of Jackson’s history with drugs.

Superior Court Judge Karl S. Johnstone found that the state had proven by a preponderance of the evidence that the search of Jackson was incident to a lawful warrant arrest and was solely for the purpose of locating weapons. Judge Johnstone indicated that razor blades or a small stiletto or sheath knife were weapons that could be located in a wallet of the size described by Officer Dahl. Based on these findings, Judge Johnstone denied Jackson’s motion to suppress.

DISCUSSION

In this case, Officer Dahl relied on a warrant to arrest Jackson, but had no search warrant. He conducted a warrant-less search of Jackson’s person and discovered contraband. The fourth amendment to the United States Constitution and article 1, section 14 of the Alaska Constitution bar unreasonable searches and seizures. A warrantless search is per se unreasonable unless it falls within an exception to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Deal v. State, 626 P.2d 1073, 1078 (Alaska 1980).

A search of a person incident to an arrest is a recognized exception to the search warrant requirement. United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 476-77, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 264, 94 S.Ct. 488, 491, 38 L.Ed.2d 456 (1973); Hinkel v. Anchorage, 618 P.2d 1069, 1070 (Alaska 1980), cert. denied, 450 U.S. 1032, 101 S.Ct. 1744, 68 L.Ed.2d 228 (1981); Middleton v. State, 577 P.2d 1050, 1055 (Alaska 1978); Zehrung v. State, 569 P.2d 189, 195 (Alaska 1977), modified on rehearing, 573 P.2d 858 (Alaska 1978); McCoy v. State, 491 P.2d 127, 130-31 (Alaska 1971); Dunn v. State, 653 P.2d 1071, 1079 (Alaska App.1982).

In McCoy, the supreme court placed four restrictions on warrantless searches of the person incident to arrest: that the arrest be valid; that the search be roughly contemporaneous with the arrest; that the arrest not be a pretext for the search; and, that the arrest must either be for a crime, evidence of which could be concealed on a person or the search must be intended for the discovery of a weapon to prevent injury to the officer or the arrestee’s effectuating his or her escape. 491 P.2d at 138. In this case, Jackson concedes that the arrest was valid, that the search was roughly contemporaneous with the arrest, and that the [1025]*1025arrest was not a pretext for the search. The state concedes that the arrest was not for a crime, evidence of which could be concealed on a person. Rather, it is argued, it was a weapons search.

Officer Dahl testified, and the trial court found his testimony credible, that the search was to discover small weapons such as a razor blade or a small knife, and that such a weapon could be concealed in a wallet the size of Jackson’s. Such a search would appear permissible “unless the container fie., the wallet] is too small to contain a weapon.” Hinkel, 618 P.2d at 1070. Jackson vigorously argues that his wallet was too small to contain the kind of weapon for which searches incident to an arrest are permitted.

The Alaska cases cited all involved searches for conventional weapons such as guns, large knives, and clubs. In order to resolve this case, it is necessary to consider the scope of a search for unconventional or atypical weapons incident to an arrest under Alaska law. While there is dicta in prior cases addressing this issue, it is one of first impression. It is important to note at the outset that Jackson was subjected to a full custodial arrest, which we define as one where the arrestee is taken into custody and transported to a police facility for booking. See Robinson, 414 U.S. at 222 n. 2, 94 S.Ct. at 470 n. 2. This is not a case of an investigatory stop followed by a frisk for weapons permitted by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In Robinson, the United States Supreme Court dealt with a search of a person arrested for a minor offense, evidence of which would not be found on his person. 414 U.S. at 236, 94 S.Ct. at 477. The officer also indicated that he was not searching for weapons nor did he suspect that the respondent was armed. Id. The arresting officer found contraband in a cigarette package removed from the arres-tee’s pocket. After reviewing past authorities, the Supreme Court permitted a virtually unlimited search for weapons once a person is validly taken into custody. The Court said:

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Bluebook (online)
791 P.2d 1023, 1990 Alas. App. LEXIS 43, 1990 WL 61624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-state-alaskactapp-1990.