Zehrung v. State

573 P.2d 858, 1978 Alas. LEXIS 588

• Court: Alaska Supreme Court
• Decided: January 27, 1978
• Docket: 2823
• Status: Published

Opinions

OPINION ON REHEARING

Before BOOCHEVER, C. J., RABINOW-ITZ, CONNOR and BURKE, JJ., and DIMOND, J. Pro Tern.

PER CURIAM.

In our principal decision in this case, we held that one who is arrested and brought to jail for a minor offense for which bail has already been set in a bail schedule should be given a reasonable opportunity to post bail before being booked and searched.¹ In its petition for rehearing, the state contends that this holding is overly broad and should be narrowed.² Specifically, the state alleges that, while that holding may be feasible for large institutions such as in Anchorage, Juneau and Fairbanks, which have adequate holding cells in an unsecured area of the facility, the smaller state institutions have no such holding capacity. The stalje contends that in the smaller jails, it may be necessary to hold prisoners in the security area along with all other prisoners, presenting a problem of introduction of contraband substances. In some communities, it is alleged that as a result of the opinion, a single patrolman would be required to watch the prisoner, rather than returning to his duties, while awaiting someone to come to the jail to post bail; or the prisoner would have to be placed in a cell with other prisoners.

It may well be that exigencies may arise warranting a more thorough search for contraband under unusual circumstances. It is impossible to rule on the myriad of conceivable circumstances. The rule set forth in our original opinion in Zehrung should normally be followed unless exigencies demand a different course of action. Whether circumstances justify a variance will depend on the particular facts involved and must be determined in an adversary proceeding³ on a case-by-case basis.

Our opinion is modified to the extent indicated herein.⁴

MATTHEWS, J., not participating.

1 . Our original opinion authorized a search for weapons and evidence of the particular crime for which the person was arrested.

2 . In oral argument on the petition, the state’s attorney said that the state did not criticize the basic holdings of the court.

3 . Counsel for Zehrung indicated that he has no interest in whether the Zehrung rule is restricted under varying situations. Accordingly, a remand would not only involye hypothetical situations but would be nonadversary.

4 .The right to fingerprint and photograph a prisoner was not raised in either the original appeal or the petition for rehearing. We there- ■ fore do not pass on those issues.