Reeves v. State, 3161

CourtSupreme Court of Alaska (US)
Citation599 P.2d 727
Docket NumberNo. 3161,3161
PartiesHoward C. REEVES, Appellant, v. STATE of Alaska, Appellee.
Decision Date14 September 1979

Robert Adelman, Anchorage, of counsel, Barbara J. Miracle, Sue Ellen Tatter, Asst. Public Defenders, Brian Shortell, Public Defender, Anchorage, for appellant.

Thomas B. Turnbull, III, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellee.




Howard Reeves was arrested in Anchorage on March 10, 1976, by Anchorage Police Officer C. M. Hayman for driving while under the influence of intoxicating liquor, a violation of Anchorage Municipal Code 9.28.020. 1 In the process of making this arrest, Officer Hayman discovered that there was a bench warrant outstanding for Reeves because of his failure to appear in connection with a traffic violation. The officer transported Reeves to the police station for the purpose of administering a breathalyzer test to him. The results of the test were positive. 2 Officer Hayman then took Reeves to the state jail annex at 6th and C streets in Anchorage. The officer filled out a booking slip and then left the jail.

During the process of booking Reeves into the jail, Correctional Officer J. L. Martin first asked Reeves to empty his pockets and then conducted a "pat-down" search of his person. The correctional officer felt a small object in the right-hand, snap-down pocket of Reeves' leather jacket and removed that object from the pocket. The object thus removed from Reeves' pocket was an opaque, bluish-green or turquoise toy balloon which was tightly wrapped in a configuration approximately one-half inch in width.

The correctional officer unwrapped the balloon and in it discovered a small quantity of a brownish-colored powdery substance. He handed the unrolled balloon to the jail desk officer. The correctional officers then called Police Officer Hayman at the police station and "advised (him) that they had found something that they wanted (him) to look at that they considered suspicious."

Officer Hayman returned to the jail and examined the balloon and its contents. He then took the balloon to the police station where he conducted a field test of a small quantity of its powdered contents. The field test indicated that opium derivatives were present. A sample of this substance was sent to a laboratory for analysis and that analysis confirmed the presence of the opium derivative heroin. Reeves was subsequently indicted for possession of a narcotic drug in violation of AS 17.10.010. 3

The law enforcement officials involved did not obtain or apply for a warrant to search Reeves or the balloon discovered on his person at any time during this sequence of events. Based on this fact, Reeves moved to suppress this evidence against him on the ground that it was "the product of an unlawful search and seizure in violation of the United States and Alaska Constitutions." The motion was denied by the superior court after an evidentiary hearing and argument from the parties.

Thereafter, Reeves entered a plea of nolo contendere to the charge of possession of the narcotic drug heroin. In entering this plea, Reeves expressly reserved the right to appeal the search and seizure issue raised in the superior court. 4 Reeves was given a sentence of three years, "with all suspended except that imposed pursuant to the parole revocation by the Federal District Court which time will be served concurrently with the Federal Sentence," and placed on formal probation. 5

One of Reeves' arguments on appeal is that the search of his person at the Anchorage jail was constitutionally impermissible because it was undertaken before he was given a reasonable opportunity to post bail. However, Reeves did not make this argument to the superior court in support of his motion to suppress. Nor did he challenge the basic authority of the correctional officer to search his person either in his motion or in reserving the issue raised by that motion for appeal. Instead, the sole issue raised in the superior court and expressly reserved for appeal was whether the scope of the search conducted by the correctional officer and the police officer here was broader than that allowed by a pre-incarceration inventory search exception to the warrant requirement. 6

A plea of guilty or nolo contendere is a waiver of all non-jurisdictional defects and forecloses appellate review to that extent. We may not review an issue not properly reserved for appeal when entering such a plea. 7 Since Reeves expressly conceded the validity of a limited inventory search by the correctional officer here when reserving his rights on appeal, we do not address the merits of his arguments made on appeal challenging the validity of that search because it was effected before he was given a reasonable opportunity to raise bail. 8 Accordingly, we do not reach the question whether the requirements articulated in our decision in Zehrung v. State, 569 P.2d 189 (Alaska 1977), Modified on rehearing, 573 P.2d 858 (Alaska 1978) should apply retroactively to the search challenged here. 9

The state argues that we should review this search as one incident to arrest. However, in this case the arresting police officer had completed the arrest and returned to the police station from the jail when the challenged search was conducted by a correctional officer. Correctional Officer Martin testified that the search was effected as a routine pre-incarceration or "booking" inventory search. It is clear on this record that the search was undertaken as one incident to incarceration rather than one incident to arrest 10 and it must be reviewed as such. 11

While we have several times in our past opinions taken notice of the issue as to the constitutional validity and scope of pre-incarceration or "booking" inventory procedures, to date we have not been presented with a case which required the resolution of this issue. 12 However, this question must be resolved here in order to determine the validity of the correctional officer's seizure and search of the balloon found on Howard Reeves' person during a routine pre-incarceration inventory. 13

At the outset, there can be no doubt that a pre-incarceration inventory procedure such as that followed in this case is a "search" in the sense that the term is employed in article I, section 14 of the Alaska Constitution. 14 The governmental intrusion inherent in a pre-incarceration inventory search of an arrestee's person is no less an intrusion because it is routine in nature. Nor does the fact that such an inventory is conducted at least in part for the purpose of securing and protecting the arrestee's property alter the fact of intrusion. 15

It is not at all certain that the fourth amendment to the United States Constitution, as presently construed, places any significant limitations on the scope of an inventory search conducted pursuant to a custodial arrest. 16 In United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427, 440-41 (1973), the United States Supreme Court held:

A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment.

While Robinson, in contrast to the present case, was addressing the scope of the search incident-to-arrest exception to the warrant requirement, we think a fair implication of its reasoning is that "an individual lawfully subjected to a custodial arrest retains no significant Fourth Amendment interest in the privacy of his person." 17

We reject this limited conception of the privacy interest retained by an arrestee in the context of a pre-incarceration inventory search as we have rejected it in connection with searches incident to arrest. As we held in Zehrung v. State, 569 P.2d 189, 199 (Alaska 1977):

That an (arrested) individual has an actual expectation of privacy in items carried on the person is obviously true. We also hold that the expectation of privacy is one which Alaskan society would recognize as reasonable. 18

As we have frequently noted, the Alaska constitutional guarantee against unreasonable searches and seizures is broader in scope than fourth amendment guarantees under the United States Constitution, at least in part because of the more extensive right of privacy guaranteed Alaskan citizens by article I, section 22 of our state constitution. 19 Thus, it is within the framework of Alaska's constitutional guarantees that we must analyze and delineate the permissible scope of pre-incarceration inventory searches in order to determine the validity of the search of Reeves' person undertaken at the Anchorage jail following his arrest.

We begin our discussion by reiterating that "a search without a warrant is per se unreasonable unless it clearly falls within one of the narrowly defined exceptions to the warrant requirement." 20 Each exception must, in turn, be defined in terms of the reasonable and justifiable governmental purpose which it furthers. 21 Finally, inherent in the concept of "narrowly defined exceptions" is the requirement that a search conducted pursuant to such an exception must be no broader or more intrusive than necessary to fairly effect the governmental purpose which serves as its justification. 22

There are two valid justifications for allowing a pre-incarceration inventory search exception to the warrant requirement. The first is the institutional interest in prohibiting the introduction of weapons, illegal...

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