Zehrung v. State
| Decision Date | 27 January 1978 |
| Docket Number | No. 2823,2823 |
| Citation | 573 P.2d 858 |
| Parties | Timothy ZEHRUNG, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Before BOOCHEVER, C. J., RABINOWITZ, CONNOR and BURKE, JJ., and DIMOND, J. Pro Tem.
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 state 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 proceeding 3 on a case-by-case basis.
Our opinion is modified to the extent indicated herein. 4
MATTHEWS, J., not participating.
In my opinion our original holding in this case was overly broad. Specifically, I now disagree with the view that one in the position of Zehrung "should be allowed a reasonable opportunity to attempt to raise bail before being subjected to the remand and booking procedures and the incident inventory search." Zehrung v. State, 569 P.2d 189, 195 (Alaska 1977). 1 While I still adhere to the basic holding, that when the accused in such cases is able to post the required bail he should be released, and that beyond that point there is no justification for an inventory search, 2 I think it is unreasonable to require jail personnel to delay the ordinary booking process, and incident inventory search, in order to allow the prisoner time to "get in touch with a relative, an employer, a friend, or an attorney, who could come to the stationhouse" to post bail. Id. Thus, I would modify the opinion in this case and hold as follows:
1. Where the prisoner is able to post the required bail he should be immediately released; provided, however, that detention for such...
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