Daygee v. State

• Decision Date: 12 October 1973
• Docket Number: No. 1408,1408
• Citation: 514 P.2d 1159
• Parties: David DAYGEE, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 1159

514 P.2d 1159

David DAYGEE, Appellant, v. STATE of Alaska, Appellee.

No. 1408.

Supreme Court of Alaska.

Oct. 12, 1973.

Robert H. Wagstaff, of Friedman, Wagstaff, Ravin & Rubinstein, Achorage, for appellant.

John E. Havelock, Atty. Gen., Juneau, Seaborn J. Buckalew, Jr., Dist. Atty Charles M. Merriner, Asst. Dist. Atty., and Stephen G. Dunning, Asst. Dist. Atty., Anchorage, for appellee.

Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER, and FITZGERALD, JJ.

OPINION

ERWIN, Justice.

On March 10, 1970, appellant David Daygee was indicted by the Anchorage Grand Jury for possession for the purpose of sale of 15 pounds of marijuana and 4,000 tablets of LSD.

After jury trial, appellant was found guilty of possession of marijuana for the purpose of sale, but no verdict was returned concerning the amphetamines. ¹

On March 4, 1970, at approximately 10:00 o'clock at night, Alaska State Trooper Rowe was proceeding east on Tudor Road in Anchorage. He passed a 1969 Mustang on Boniface near the stop sign at the intersection of Boniface and Tudor. Trooper Rowe's suspicions were aroused by the strange angle of the parked car and he watched the car in his rear view mirror as he continued east on Tudor between a half-mile and a mile. He then stepped suddenly on his brakes to observe the effect on appellant. According to Rowe the Mustang sped around the corner heading west on Tudor. He then turned around and pursued the car, reaching speeds of 130 mph before he caught up with the Mustang in the vicinity of Wright Street. Trooper Rowe stated that he stopped the car for speeding; however, he did not clock the other car, and at the time he caught up with the Mustang, it was going 35 mph. The speed limit on Tudor is 50 mph and changes to 35 mph in the area where appellant was stopped, but in the trooper's opinion, the car had previously been exceeding the speed limit. As soon as he turned on his red light, appellant's car pulled over to the side of the road. Trooper Rowe approached the Mustang on foot. When he reached the car, he observed an open quart bottle of beer on the front seat floor before the passenger Steven Staats. In addition he smelled a particular odor which he described as burning marijuana.

The officer directed the beam of his flashlight on the back seat of the car. There he saw two grocery bags, one directly on the floor of the car, the other on the seat in an open cardboard box. On top of the one on the seat was a clear plastic bag containing a dark material. He asked both Mr. Daygee and Mr. Staats what the clear bag was. They both answered that they didn't know and when he asked if it belonged to either of them, they replied, 'no'. He asked them to hand him the clear bag and Mr. Staats picked it up, passing it to Daygee, who in turn handed it to the trooper. After observing the dark material closely through the plastic bag, the trooper was of the opinion that the bag contained marijuana.

At that point the officer ordered the two men out of the car and searched them. He found a warm pipe which smelled of marijuana and contained the residue of burnt marijuana in Mr. Staats' back trousers pocket. The pocket also contained a pouch of marijuana.

Another police car soon arrived in response to Officer Rowe's radio call for assistance. Rowe subsequently informed both men that they were under arrest and placed one of the men in his car and the other in the newly-arrived police vehicle. Rowe then returned to appellant's vehicle and in his words 'inventoried' it because the car was about to be impounded by a private towing service. Trooper Rowe removed the two grocery bags, together with the box in which one of the bags was sitting, from the car and placed them in his own vehicle. In so doing he noticed several small scales which were in the box beside the grocery bag. He also noticed bricks of an unknown substance wrapped in opaque paper which were inside the grocery bags. All these items were placed in the trunk of the patrol car where they remained until the time the officer finished the shift. When his shift was over the items were placed on the floor next to the desk of the patrol sergeant preparatory to placing in the evidence locker.

The packages were subsequently opened by one of the police personnel on advice of the fire marshal that there was danger of fire because the packages felt warm to the touch. The packages contained bricks of marijuana.

The principal question on appeal concerns the legality of the search and seizure of the contraband contained in appellant's automobile. There are two incidents in this case which call for search and seizure analysis. ² The first involves stopping the vehicle and seizure of the clear plastic bag of marijuana; the second incident concerns the police officer's seizure of the plastic bag containing marijuana bricks, several weighing scales, and paper bags from the back seat of the automobile. Each of these incidents will be discussed in turn.

SEIZURE OF THE PLASTIC BAG OF MARIJUANA.

After stopping appellant's car for speeding, Officer Rowe approached the car on foot. He then shone his flashlight into the interior of the car where he observed a clear plastic bag which contained a leafy substance with seeds in it. The officer subsequently demanded that appellant hand him the bag. We hold that the officer's sighting and demand for the bag of marijuana was not an illegal search and seizure, as the bag was in the officer's plain view. A search implies an invasion of privacy, a prying into that which is meant to be concealed. It is no search to observe that which is in the plain view of an officer who is rightfully in a position to have that view. ³ That the officer's view in this case was aided by a flashlight is irrelevant. The flashlight beam merely illuminated that which would have been visible in the light of day. ⁴ Nor does the seizure of the marijuana which the officer saw violate the seizure restriction of the fourth amendment. An officer may seize evidence which is legitimately in his plain sight. ⁵ It is not necessary that the contraband be positively identified before it is seized. ⁶ The officer, who had extensive training in detecting marijuana, testified that he recognized the smell of marijuana burning and the substance in the bag looked like marijuana, which he had seen previously. The officer thus had cause to believe a misdemeanor was committed in his presence other than the traffic event. ⁷ The seizure of this item was therefore valid.

THE SEIZURE OF THE TWO GROCERY BAGS AND THE CARDBOARD BOX.

After Officer Rowe arrested Daygee and Staats and removed them to the police vehicles, he called a wrecker to come for the car. He then returned to the car and removed all valuables from the passenger area to his own police vehicle for safekeeping prior to the impoundment. Among the articles removed from the car were two grocery bags and a cardboard box containing 15 pounds of marijuana bricks wrapped in rough paper, several postal scales and five or six rolls of plastic baggies.

The validity of automobile searches without a warrant was conceded until recently by most authorities because of the 1925 decision of Carroll v. United States ⁸ upholding such searches under the theory that an emergency situation existed by virtue of the mobile character of the vehicle. In the Carroll case, the court held that the police could stop a car on the highway and search it without a warrant if they had probable cause to believe the car was transporting contraband. The reason for this exception to the search warrant requirement was the mobility of the automobile, which makes it impracticable to obtain a search warrant, since the car and its illegal contents could be well out of the jurisdiction before the warrant could be served.

The Carroll case and the mobile vehicle cases which immediately followed are typical of the prohibition era. ⁹ Under the Volstead Act, transporting contraband liquor was a misdemeanor.

The next significant vehicle search case came almost 35 years later in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). There state officers arrested the defendants, who were sitting in a parked automobile, on a vagrancy charge. The defendants were taken to the station house and their car was removed to a garage where it was searched. The defendants were later convicted of conspiring to rob a bank, largely on evidence found in the warrantless automobile search. The court reversed the conviction, stating that the search was not incident to the arrest since it occurred at another time and place. The court also stated that, assuming the propriety of the state's assertion that the police had probable cause to search the car because they reasonably believed it was stolen, the search was still not justified by the Carroll exception to the search warrant requirement because the automobile in this case was in fact immobilized. Since the defendants were under arrest at the police station and the car was in police custody at a garage, there was no danger that evidence contained in the car could be destroyed or that the car could be removed from the jurisdiction.

Six years later in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the court retrenched on Preston, while purporting to distinguish it, and extended the Carroll rule far beyond its original rationale. In Chambers, defendants were arrested in their vehicle after robbing a gas station. While they were being booked at the station house, their vehicle was searched and the evidence found therein was subsequently used against them. Although Preston expressly stated that even if the police had probable cause to search the vehicle, they had to obtain a warrant once the exigent circumstances of mobility were removed, the court in Chambers distinguished Preston as a situation where there was no probable cause to search. In Chambers, the court upheld...