Erickson v. State

Decision Date05 March 1973
Docket NumberNos. 1521,1542,s. 1521
PartiesHoward Charles ERICKSON and Malcolm Allen Ericson, Appellants, v. STATE of Alaska, Appellee. Malcolm Allen ERICSON, Appellant, v. STATE of Alaska, Appellee.
CourtAlaska Supreme Court

Herbert D. Soll, Public Defender, Anchorage, Dick L. Madson, Asst. Public Defender, Patrick E. Murphy, Fairbanks, for appellants.

John E. Havelock, Atty. Gen., Juneau, Monroe N. Clayton, Dist. Atty., James M. Hackett, lyle R. Carlson, Asst. Dist. Attys., Fairbanks, for appellee.

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

OPINION

ERWIN, Justice.

I

Appellants Howard Charles Erickson and Malcolm Allen Ericson were convicted in the superior court under an indictment charging them with possession of marijuana and LSD for the purpose of sale. In addition, Allen Ericson was separately convicted in the district court under a criminal complaint charging simple possession of marijuana; the misdemeanor conviction was affirmed on appeal to the superior court. 1 A claim of unlawful search and seizure provides the single basis for challenge to the validity of the convictions in this consolidated appeal.

II

On the evening of Friday, April 3, 1970 Mr. and Mrs. David Baldwin were having dinner with Miss Mary Lynn Kennedy, a neighbor. At approximately 8:30 that evening appellant Allen Ericson arrived seeking Miss Kennedy's roommate, who was away however. The Baldwins invited Allen to join them. During the course of conversation, Allen stated that he had come to Fairbanks from Seattle to sell marijuana. Allen also used the Baldwins' telephone to call an unidentified person in Seattle, informing the latter that there were 'plenty of jobs' in Fairbanks; after the call, Allen explained that the reference to employment opportunities was a prearranged signal for the other person to come to Fairbanks with drugs.

At approximately midnight that same evening Mr. Baldwin contacted the Fairbanks police department and related the above events to Detective Gustafson. The officer requested that Mr. Baldwin obtain a physical description of the person coming from Seattle and an estimate of the quantity of drugs being brought. 2

Mr. Baldwin saw appellant Howard Erickson for the first time Sunday morning, April 5, 1970, in Miss Kennedy's apartment. At that time Allen and Howard were placing portions of three brick-like substances composed of brownish-green straw material into small baggies. The three bricks were in an open suitcase. Later that day, Mr. Baldwin called Detective Gustafson and related his earlier observations of appellants' packaging activities. Mr. Baldwin then agreed to come to the police station in order to execute an affidavit for a search warrant for Miss Kennedy's apartment.

Before departing, Mr. and Mrs. Baldwin informed Miss Kennedy that the police knew about the drugs and were going to search her apartment. Despite their assurance that she would not be arrested, Miss Kennedy became extremely upset and ran outdoors. The Baldwins followed in order to calm her, and Miss Kennedy returned to her apartment. Fearing that she would destroy or conceal the drugs, Mr. Baldwin followed Miss Kennedy. He observed Miss Kennedy take the suitcase outside and deposit it in a small ditch behind their building, covering it with snow and sticks. Mr. Baldwin, again fearing destruction or concealment of the drugs when Allen and Howard returned, retrieved the suitcase and delivered it to the police station at approximately 7:00 p. m.

The locked suitcase was subsequently pried open by Detective Gustafson, without authorization of a search warrant, in the presence of two other police officers, a district attorney, and a district court judge. 3 After a field test of the substance found inside the suitcase indicated marijuana, 4 appellants were arrested. A subsequent strip search of Allen yielded a small quantity of marijuana on his person which provided the basis for the misdemeanor charge.

At the preliminary hearing on the felony charges the district court judge denied a motion to suppress. The judge first reasoned that no fourth amendment search and seizure occurred prior to the forcible opening of the suitcase at the police station because neither Miss Kennedy nor Mr. Baldwin were acting as agents of the police. Nor was the forcible opening at the police station considered a prohibited search, since:

Baldwin knew what was in it-or thought he did. He thought correctly, so that when he authorized the opening of the bag after he-at the police station, he was not authorizing a search, he'd already made the search, he was just authorizing (indiscernible) saying, sure you look at it too, I already have.

The thought seems to be that abundant probable cause negates the need for a search warrant. The judge concluded the oral ruling with an 'empty formality' discussion:

. . . I don't think the constitution or rule 37 . . . are intended to be directed to empty formalities . . .. There was nobody's house and/or grounds to be entered into, there was no need to-to talk to anyone else, there was no need to show the right for authority or to preserve peace at the time the-the suitcase was opened to look at its contents. . . . So far as the privacy is concerned . . . defendant's themselves had already voluntarily surrendered that by showing the contents of the suitcase to both Baldwin and Miss Kennedy. To prepare a warrant would have been empty formality, made to work at a typewriter . . .. 5

The judge who presided at the felony trial denied a second motion to suppress on the sole ground that 'city police officers did not take any part or contrivance in the observance or the acquisition of the suitcase involved. . . .'

A suppression motion made to the district court trying the misdemeanor charge was denied, 6 the judge stating simply, 'The court finds the search and seizure of the subject suitcase was not unreasonable within the meaning of the constitution of the United States or the constitution of the State of Alaska. . . .'

In the appeal of the misdemeanor conviction to the superior court, the suitcase search was again found to be constitutional. The judge first noted that the initial seizure of the suitcase was without the knowledge or contrivance of the police and therefore constitutionally permissible. Secondly, he did not consider the warrantless opening of the suitcase by the police to have been impermissible:

Once taken, it did not constitute a constitutionally protected area. Further, the police action in opening the suitcase once it was at the police station was not such as to fall within that area for which the courts have devised prophylactic legislation against abusive police tactics.

The main issue presented in this consolidated appeal is whether the warrantless search of the suitcase violated appellants' constitutional rights to be free from unreasonable searches and seizures. In addition, a subsidiary issue is posed by Allen Ericson's appeal from his misdemeanor conviction: assuming the suitcase search to be unlawful, did that illegality taint the subsequent arrest and, thereby, the marijuana found during the search incident to that arrest?

III

The fourth amendment to the federal constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article I, § 14 of the Alaska Constitution provides a similar guarantee.

An initial issue raised by appellants in this case is whether an unlawful seizure of the suitcase occurred when Mr. Baldwin removed it from the ditch and transported it to the police station. However, it is unnecessary to decide the seizure issue since, as will appear below, the warrantless search of the locked suitcase by the police was unlawful.

A fourth amendment search clearly occurred when Officer Gustafson forcibly opened the suitcase. 7 The contraband was not in plain view so as to obviate a search. 8 For, as Justice Traynor stated: 9

It is inherently impossible for the contents of a closed opaque container to be in plain view regardless of the size of the container or the material it is made of. A search of the container is necessary to disclose its contents.

Nor did statements by Mr. Baldwin that he had seen marijuana in the suitcase serve to place its contents in 'constructive' plain view. Justice Traynor rejected just such an argument in a case where police opened a bag without a warrant from which an informant stated marijuana had previously been given him:

This contention overlooks the difference between probable cause to believe contraband will be found, which justifies the issuance of a search warrant, and observation of contraband in plain sight, which justifies seizure without a warrant. However strongly convinced officers may be that a search will reveal contraband, their belief, whether based on the sense of smell or other source, does not justify a search without a warrant. 10

Finally, since the police were laboring under no uncertainty as to the ownership of the suitcase, it would also be specious to argue that they were not conducting a 'search' but rather were attempting to determine the ownership of lost property. 11

The facts of this case indicate that such a search was unwarranted. For a number of years, this court and the Supreme Court of the United States have been attempting to establish guidelines for search and seizure. 12 Because it is clear from the record that some confusion still exists, we will attempt to broadly summarize the law of search warrants so as to obviate as far as humanly possible any future misunderstanding.

Although opinions of the Supreme Court of the United States, which we are bound to follow, in the area of search...

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