Zehrung v. State
| Decision Date | 29 September 1977 |
| Docket Number | No. 2823,2823 |
| Citation | 569 P.2d 189 |
| Parties | Timothy ZEHRUNG, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Barbara J. Miracle, Asst. Public Defender, and Brian Shortell, Public Defender, Anchorage, for appellant.
Glen C. Anderson and Ivan Lawner, Asst. Dist. Attys., Anchorage, Dean J. Guaneli, Asst. Atty. Gen., Daniel W. Hickey, Deputy Atty. Gen., and Avrum M. Gross, Atty. Gen., Juneau, for appellee.
Before BOOCHEVER, Chief Justice, RABINOWITZ, CONNOR and BURKE, Justices, and DIMOND, Justice Pro Tem.
Timothy Zehrung entered a plea of nolo contendere to the charge of rape following a denial by the Superior Court of his motion to suppress certain credit cards found in his wallet during an inventory search at the Anchorage jail. At the time of plea, Zehrung expressly reserved his right to appeal the suppression issue. 1 He was sentenced to ten years imprisonment with seven years suspended. Zehrung's only point on appeal is that the Superior Court erred in refusing to suppress the two credit cards.
While driving his employer's truck, Zehrung was stopped in Anchorage by a state trooper because the truck was emitting excessive smoke. In conducting a routine investigation of the matter, the trooper discovered that there were two bench warrants out for Zehrung, one because he had failed to appear on a misdemeanor 2 and one because he had failed to pay a $25.00 fine for possession of marijuana. The trooper arrested Zehrung and took him to the city jail.
Since Zehrung claimed that the discovery of the credit cards in his wallet at the jail was the result of an illegal search and seizure, it was necessary for the Superior Court, as part of the suppression hearing, to ascertain the specific steps involved in the "booking" procedures at the jail. The testimony showed these procedures to be as follows:
An arrestee is first brought to the jail's remand desk by the arresting officer. A corrections officer asks the arrestee to empty his pockets and then frisks the arrestee. The officer checks the arrestee's wallet for money and contraband. If either is found, the officer removes them and inventories them. The officer does not ordinarily inventory other items of value located in the arrestee's wallet. Rather, all of the arrestee's property, including his wallet with money and contraband removed, is placed in a numbered canvas bag and passed to a processing officer, who does the actual booking within the secured part of the jail. The remand stage of an arrestee's processing is done immediately upon arrival at the jail. The only delays are due to other arrestees being remanded to custody.
Half an hour to six hours after remand, an arrestee is actually booked and his property is inventoried. The contents of the bag containing the arrestee's property are emptied on a table, and the processing officer, in the arrestee's presence, compiles a written inventory of the property. The contents remaining in the arrestee's wallet after removal of money and contraband are not inventoried unless the arrestee requests such an inventory. After the inventory, the arrestee's property is placed in a steel locker. However, if an arrestee makes bail, his property is returned to him after he has been fully processed. Current procedure at the jail does require complete processing of an arrestee, including inventory of his property, even if the arrestee is able to post bail at the time he arrives at the jail.
Upon his arrival at the jail, Zehrung was put in a holding cell in the remand area of the jail. He was held there for a short time while another arrestee was being remanded to custody.
Zehrung was then brought to the remand desk. He gave his personal belongings to Franklin Ellington, the corrections officer who conducted the remand stage of his processing. When checking Zehrung's wallet for money and contraband, Ellington found a small two-sided white paper packet containing two credit cards. 3 The packet was not sealed. Ellington removed it from Zehrung's wallet and removed the two credit cards from the packet. When he saw that the credit cards were not in Zehrung's name, Ellington gave the cards to the arresting officer.
After Zehrung's release on bail, the arresting officer contacted the owner of the credit cards found in Zehrung's wallet. At that time, he learned that the cards had been taken during an alleged rape and robbery. This eventually led to Zehrung's indictment on the rape charge, to which he entered a plea of nolo contendere.
A search conducted without a warrant is per se unreasonable 4 unless the search fits within one of the "few specifically established and well-delineated exceptions" to the warrant requirement. 5 The burden of proof is on the state to prove by a preponderance of the evidence that the exigencies of the situation make conduct of the search without a warrant imperative. 6
Although there is authority indicating that property inventories by law enforcement officials are not searches within the meaning of the Fourth Amendment, 7 the state concedes for purposes of this case that the inventory of Zehrung's property was a search. In so doing, the state properly cites the decision of this court in Schraff v. State, 544 P.2d 834, 839 (Alaska 1975), in which we concluded that when a law enforcement officer riffles through a wallet for contents unobservable from outside the wallet, a search has been conducted. The state further concedes that there was no search warrant in this case and that, therefore, the search must fit within one of the exceptions to the warrant requirement in order to be justified.
In Schraff, supra at 840-41, we recognized that inventory searches by law enforcement personnel may fit within an exception to the warrant requirement. The state argues that the search of Zehrung at the Anchorage jail fits within this exception. On the other hand, Zehrung argues that any preincarceration inventory of his effects was improper because his employer had made bail for him before he was booked.
A number of courts have held that a preincarceration inventory is not proper if the arrestee, upon posting collateral, has a right to release without any incarceration. 8 In People v. Dixon, 392 Mich. 691, 222 N.W.2d 749 (1974), the Michigan Supreme Court invalidated a stationhouse search because the arrestee had a right to immediate release upon posting bail. While arrestees in Anchorage can obtain release by posting a predetermined bail, the procedure is not as formal as the statutory scheme discussed in Dixon.
The decision in Dixon was based in part on the arrestee's clear statutory right to release without incarceration. The Michigan court imposed on the arresting officer a duty to inform an arrestee of his right to release:
We are persuaded, however, that the sense of the statute and its purpose of avoiding unnecessary incarceration of minor offenders can only be served by imposing on the arresting officer . . . the duty to inform the person about to be jailed of the statutory protection . . . . 222 N.W.2d at 754.
Further, the court ruled that evidence obtained in derogation of the arrestee's statutory right to release on bail must be suppressed. 9
No such clear statutory right to release on bail without even temporary incarceration exists in Alaska. Nevertheless, the nonstatutory rationale of Dixon is still applicable. The court in Dixon stated that because the justifications for a preincarceration inventory 10 do not exist if the arrestee is not to be incarcerated, no inventory search can be conducted in such cases. 11 We agree.
We recognize that such a decision necessitates invalidating a standard procedure at the jail. The current practice at the jail is to conduct an inventory search of all arrestees, whether or not a particular arrestee is capable of posting bail at the time he or she arrives at the jail. 12 Nevertheless, we hold that a warrantless jailhouse inventory is without justification when an arrestee is not going to be incarcerated, and it is therefore constitutionally impermissible.
The Superior Court, however, found that Zehrung did not have the capacity to make bail until after he had been moved to the secured part of the jail, which was after the credit cards had been discovered. But the testimony and other evidence on this aspect of the case leaves substantial doubt as to the accuracy of this finding.
Zehrung testified at the suppression hearing that it took 15 to 20 minutes for him to be transported from the place of arrest at Boniface and Northern Lights to the jail at Sixth and C. 13 The booking record kept by the jail indicates that Zehrung arrived at the jail at 6:35 a. m. This means that Zehrung was arrested shortly after 6:00 a.m. Zehrung also testified that when he arrived at the jail, there was one other arrestee ahead of him for processing. Zehrung was placed in an unsecured holding cell while the other person was being remanded to custody.
One of Zehrung's co-workers, a person named Ronnie, had been riding with Zehrung at the time the trooper stopped him. Clarence Morton, Zehrung's employer, testified that he received a telephone call from Ronnie between 6:00 and 6:30 that morning. 14 Ronnie told Morton that Zehrung had been arrested and taken to the jail at 6th and C and that the bail for Zehrung had been set at $125.00.
After talking to Ronnie, Morton immediately called the jail to verify the amount of Zehrung's bail and to tell the jail staff that he would be right down to pay the bail. Morton, who wanted to secure Zehrung's release before booking if possible in order that his caravan of trucks could continue without delay to Fairbanks, 15 next drove directly to the jail. He testified that he had to wait quite a long time after telling correctional officers that he wanted to bail Zehrung out before any one took his bail money. Based on the number of events which took place that morning, the...
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