Ricks v. State , 1989 Alas. App. LEXIS 41 ( 1989 )

OPINION

BRYNER, Chief Judge.

Thomas Ricks was convicted, following a jury trial, of four counts of misconduct involving a controlled substance in the third degree and one count of misconduct involving a controlled substance in the fourth degree. On appeal, Ricks challenges only one of his convictions: with respect to the count of misconduct involving a controlled substance in the fourth degree, Ricks contends that the superior court erred in denying his motion to suppress evidence. We reverse.

The relevant facts are not disputed. On April 22, 1987, Alaska State Troopers, working through an undercover informant, made arrangements to purchase drugs from Ricks in Delta Junction at the Buffalo Bar, where Ricks was employed as a bartender. The troopers secured a warrant to record the transaction electronically. In addition to the informant, three undercover officers were stationed inside the bar during the sale. Three additional officers remained outside and monitored the transaction.

Ricks initially met with the undercover informant at the bar. Ricks then obtained some drugs from the pocket of his jacket, which was hanging on a coat rack near the bar, and delivered the drugs to the informant.

As the informant left the bar upon completion of the sale, the officers stationed outside entered. Ricks was behind the bar. Two officers immediately arrested Ricks, moved him away from the bar to the back of the saloon, and searched him for weapons and drugs. The other officers secured the premises and kept watch on the patrons in the bar — about nine or ten people.

Approximately fifteen minutes after the arrest, while Ricks was still being held at the back of the saloon, an officer retrieved Ricks’ jacket from the coat rack and asked Ricks if it was his. When Ricks said that the jacket was his, the officer searched its pockets and found a quantity of metham-phetamines.

Ricks was subsequently charged in a seven-count indictment. Count VII, alleging misconduct involving a controlled substance in the fourth degree, was based on Ricks’ possession of the methamphet-amines found in his jacket pocket. Ricks moved to suppress this evidence, arguing that the warrantless search of his jacket amounted to a violation of his constitutional right to protection against unreasonable searches and seizures.

An evidentiary hearing on Ricks’ suppression motion was held before Superior Court Judge Richard D. Saveli. At the hearing, the state sought to establish that the warrantless search of the jacket was justified as a search incident to Ricks’ arrest. At the conclusion of the evidentiary hearing, Judge Saveli found that when police entered the Buffalo Bar and arrested Ricks, “Mr. Ricks was at least ten to fifteen feet from the jacket, the jacket was not accessible to him, and at no time after that was it accessible.... [Bjecause of that, and the ... subsequent actions of all the persons involved, there was no risk of destruction.”

Despite this finding, Judge Saveli went on to conclude that “it doesn’t matter whether the jacket was in the immediate presence and control of the defendant when the search was commenced.” In Judge Saveli’s view, the jacket was “property immediately associated with” Ricks because it was an article of clothing belonging to him and because he had had access to it shortly before his arrest. Relying primarily on this court’s decision in Dunn v. State, 653 P.2d 1071, 1079-82 (Alaska App.1982), Judge Saveli ruled that, as property immediately associated with Ricks’ person, the jacket could be subjected to a warrantless search incident to Ricks’ arrest even though it was not in his immediate physical presence or control when the arrest occurred:

For those narrow reasons, the court is going to deny the motion, but hopes that the findings make it clear that it is based strictly on the horns of a dilemma, and makes — makes the ruling on the narrow basis that the jacket was an item, as the case law describes, as immediately associated with him. An article of personal property immediately associated with him. It was under his immediate control prior to the entry of the police, and, therefore, could have contained the evidence which is permitted and associated with the arrest. It, clearly, was not under his immediate control from that point forward, and the court thus finds it didn’t have to be at the time of the actual, guns-drawn arrest. And, with that narrow — I hope that is a narrowly defined ruling to guide the parties. The court denies the motion.

On appeal, the state does not challenge the superior court’s factual determination that Ricks’ jacket was not in his immediate presence or control at the time of his arrest. Instead, the state urges us to uphold the court’s finding that the jacket could be subjected to a warrantless search as property immediately associated with Ricks’ person. In our view, however, the state’s argument is based on a misinterpretation of our decision in Dunn v. State.

As we pointed out in Dunn, the exception to the warrant requirement for searches incident to arrest is founded on the exigencies inherent in an arrest situation: the need to assure the personal safety of the arresting officers and the need to prevent the defendant from destroying evidence. These exigencies limit the scope of the exception to the area within the immediate physical control of the defendant at the time of the arrest:

A warrantless search incident to a lawful arrest is permitted to assure the safety of . arresting officers and to avoid the possible destruction of evidence by the accused. See, e.g., Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). These dual policies justifying an exception to the warrant requirement for a search incident to arrest also serve to limit the scope of the war-rantless search that can properly be conducted. Id. See also McCoy v. State, 491 P.2d 127, 132 (Alaska 1971). Thus, a warrantless search incident to arrest will normally be limited to the person arrested and the area within his immediate physical control. McCoy, 491 P.2d at 132.

Dunn v. State, 653 P.2d at 1079-80.

We went on to acknowledge in Dunn that the search incident to arrest exception is flexible. 653 P.2d at 1080. However, our discussion of flexibility referred not to the primary requirement that the search be restricted to “the person arrested and the area within his immediate physical control,” but rather to the time and circumstances under which warrantless searches incident to arrest may be conducted. Thus, in pointing out the need for flexibility, we specifically cited McCoy v. State, 491 P.2d 127, 133 (Alaska 1971), for the proposition that, while the dual exigencies justifying searches incident to arrest limit the physical area in which a search may be conducted, they do not necessarily limit the time and circumstances in which the warrantless search may be conducted. Dunn v. State, 653 P.2d at 1080 n. 4.

Dunn involved the warrantless search of a paper bag found in the pocket of the defendant's jacket shortly after his arrest. The jacket had been placed next to the seat of the van that the defendant was riding in when arrested. At the time the jacket was seized and searched, the defendant had already been arrested and removed from the van. He was held in restraints well away from the van’s passenger compartment, and no exigency existed. On appeal, the defendant argued that the lack of exigency at the time the search was commenced rendered the search incident to arrest exception inapplicable.

Relying on McCoy, as well as on the Alaska Supreme Court’s subsequent decision in Hinkel v. Anchorage, 618 P.2d 1069 (Alaska 1980), we rejected this argument, emphasizing that the exigencies governing a search incident to arrest must be viewed as of the time of the arrest, rather than as of the time the item is opened. Dunn v. State, 653 P.2d at 1080. Thus, we did not find the lack of exigency at the time the search was commenced to be controlling:

We perceive virtually no distinction between Dunn’s placement of his jacket next to his left leg and the placement of a jacket over the back of a chair, as occurred in McCoy. In both instances, articles of personal clothing were involved, and they were in the immediate control of the arrestee at the time of the arrest. We do not think it significant that Dunn was being placed under arrest at the rear of the van when his jacket was actually seized and searched. The circumstances are, in this respect, closely analogous to those of Hinkel. As in Hinkel, the exigencies of the search in this case must be determined with reference to the time that Dunn was initially ordered from the van to be taken into custody. As long as the jacket was in Dunn’s immediate control as he sat in Shelton’s van, it is not important that the jacket and its contents were first searched after Dunn was in custody and could not have gained access to the jacket.

Dunn, 653 P.2d at 1082-83 (emphasis added).

As this passage makes clear, nothing in Dunn was meant to suggest that the search incident to arrest exception can properly be applied to articles outside the immediate reach of the defendant at the time of the defendant’s arrest. Dunn, McCoy, and Hinkel all involved searches of articles that were worn by or were in the immediate physical control of the defendant at the time of the arrest. Far from suggesting that the scope of a warrantless search incident to arrest may be extended beyond the limits of a defendant’s immediate physical control, these decisions all support the conclusion that physical proximity at the time of the arrest — with the consequent threat to safety and risk of destruction — is the basic requirement upon which the search incident to arrest exception is predicated.

The specific language from Dunn relied on by the superior court in this case, while admittedly potentially confusing, does not warrant a contrary conclusion. In Dunn, we said, in relevant part:

The rule that emerges from the case law and that must govern the disposition of this case may be restated as follows: upon the lawful, non-pretextual arrest of an individual for a crime, evidence of which could be concealed on the person ... the arrestee’s person, his clothing and articles which, akin to clothing, are immediately associated with the person of the arrestee may be searched at the time of the arrest, or within a reasonable period thereafter. As long as the search is confined within these limits, it is permissible for officers to open and inspect the contents of any closed containers found, unless, under the circumstances, it could not reasonably be believed that the container would yield a weapon or evidence of the crime for which the arrest was made.

Dunn, 653 P.2d at 1082.

It is important to understand the context in which Dunn’s reference to “articles ... immediately associated with the person of the arrestee,” was made. As we have already observed, in Dunn we relied on McCoy and Hinkel to reject the contention that a search incident to arrest must be justified by exigency existing at the time the search is commenced; we emphasized that the exigencies must instead be viewed at the time of the arrest. See Dunn, 653 P.2d at 1080. In connection with this point, we found it necessary to address a line of potentially conflicting Alaska cases in which warrantless searches of certain containers seized incident to arrest had been held invalid:

There is apparent tension between the line of cases that follow the Supreme Court’s ruling in McCoy and other cases in which warrantless searches of closed containers seized from the defendant’s immediate proximity at the time of his arrest have been found invalid. For example, in Metcalfe v. State, 593 P.2d 638 (Alaska 1979), a closed box was being placed by the defendant in the trunk of a car when he was arrested. The box was seized, transported to the station and searched without a warrant; the search disclosed a large quantity of marijuana.... [T]he Alaska Supreme Court held that the contents of the box should have been suppressed.

Dunn, 653 P.2d at 1081 (emphasis added).

This passage makes it clear that the potentially conflicting cases we discussed in Dunn were all cases involving the seizure of articles within the immediate proximity of the defendant at the time of the arrest. The ensuing discussion in Dunn, which includes our reference to “articles ... immediately associated with the person of the arrestee,” was thus meant to point out that the search incident to arrest exception will not justify the warrantless search of all closed containers found within the immediate proximity of the defendant upon arrest. While the seizure of an article from the immediate proximity of the defendant is a necessary part of the search incident to arrest exception, proximity alone is not sufficient. The article must be one that is “immediately associated with the person of the arrestee,” as were the purse in Hinkel and the jackets in McCoy and Dunn.

In the present case, Ricks’ jacket would certainly have qualified under Dunn, Hinkel, and McCoy as the type of article immediately associated with Ricks’ person that could have been searched had it been in Ricks’ immediate presence at the time of his arrest. As the trial court expressly found, however, when the police entered the Buffalo Bar to arrest Ricks, “Ricks was at least ten to fifteen feet from the jacket, the jacket was not accessible to him, and at no time after that was it accessible.” As the court further found, “there was no risk of destruction.” These findings make it clear that, even when viewed at the time of Ricks’ arrest, the exigencies of the situation did not require a search of Ricks’ jacket. Under the circumstances, the dual policies of assuring safety and preventing destruction of evidence that underlie the search incident to arrest exception cannot justify the warrantless search.

The cases cited by the state on appeal do not point to a different conclusion.¹ None of these cases hold or suggest that an article may be subjected to a warrantless search incident to arrest when it is outside the defendant’s immediate reach at the time of arrest. Of course, apart from the search incident to arrest exception, the police had probable cause to believe that Ricks’ jacket contained contraband. This fact, coupled with the risk that evidence in the jacket might have been destroyed had it been left unattended at the bar after the police departed, certainly would have justified immediate seizure of the jacket pending an application for a warrant. We conclude, however, that a warrantless search was not justified by the search incident to arrest exception.

The state alternatively argues that there is an independent legal basis for upholding the superior court’s ruling. According to the state, the troopers were justified in searching Ricks’ jacket as a precautionary measure before returning it to him so that he could wear it while being transported to jail. In support of this rationale, the state points to the testimony of Trooper Franco D’Angelo, who seized and searched Ricks’ jacket. D’Angelo testified that he would have given the jacket to Ricks had it not been found to have drugs in its pockets. The state cites numerous cases from other jurisdictions that have approved post-arrest searches of articles of clothing that were not in the defendant’s immediate presence at the time of arrest.²

The cases relied on by the state, however, appear to involve either defendants who made post-arrest requests for arresting officers to obtain specific articles of clothing or defendants who were arrested while only partially clothed, making it reasonable and necessary for arresting officers to secure additional clothing. In the present case, the superior court was never asked to consider whether it was necessary for Ricks to be provided with his jacket before being transported to jail. Ricks did not ask for his jacket, and the state made no factual showing below that the jacket would have been necessary or desirable.

Moreover, Trooper D’Angelo testified only that, but for the drugs, he would have given the jacket to Ricks. Nothing in the trooper’s testimony indicates that the trooper believed it necessary for Ricks to have the jacket or to wear it while being transported to jail. Nor is there anything in the record to establish why such a belief, if held by D’Angelo, would have been reasonable. The jacket was apparently not returned after it was searched, and the record contains no indication that the troopers found it necessary to provide Ricks with a replacement for the jacket before transporting him to jail.

Had it been necessary to clothe Ricks in order to transport him, it is arguable that the troopers could properly have secured clothing for him and subjected that clothing to a search before placing it in his possession. On the other hand, however, the troopers certainly did not become entitled to engage in a warrantless search simply by going out of their way to create an exigency. The record in this case is inconclusive on the issue of whether Trooper D’Angelo reasonably believed it necessary for Ricks to wear his jacket. The state’s failure to raise this theory below precluded the trial court from addressing it. Under the circumstances, we hold that the factual record fails to support the state’s alternative legal theory. See, e.g., United States v. Whitten, 706 F.2d 1000 (9th Cir.1983); United States v. Anthon, 648 F.2d 669 (10th Cir.1981); State v. Robalewski, 418 A.2d 817 (R.I.1980).³

Accordingly, we conclude that the superi- or court erred in denying Ricks’ suppression motion. Because it is undisputed that Ricks’ conviction on Count VII was based on evidence seized from his jacket, the conviction must be REVERSED.

SINGLETON, J., dissents.

1 . See, e.g., United States v. Wysocki, 457 F.2d 1155 (5th Cir.1972) (search of a gun box in a closet within six feet of the defendant was approved when the defendant was known to have dangerous propensities and requested officers to get clothing for him from the closet); United States v. Bradley, 455 F.2d 1181 (1st Cir.1972), aff’d, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973) (approving search of a flight bag thrown into a separate room by the defendant upon his arrest); State v. Parker, 315 N.C. 222, 337 S.E.2d 487 (1985) (approving search when the defendant was three or four feet from his jacket and made a motion towards it); Collins v. Commonwealth, 574 S.W.2d 296 (Ky.1978) (approving seizure of a gun enclosed within an air conditioner when the defendant was four to seven feet from the air conditioner at the time of his arrest); State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979) (upholding a search under a rug in a room approximately nine feet by twelve feet when a bulge in the rug appeared to be a gun and the entire room was in the immediate control of the defendant).

2 . See, e.g., Giacalone v. Lucas, 445 F.2d 1238 (6th Cir.1971) (seizure of blackjack discovered when defendant opened drawer to get clothing upheld); United States v. Manarite, 314 F.Supp. 607 (S.D.N.Y.1970), aff'd, 448 F.2d 583 (2d Cir.1971) (following arrest, defendant requested officers to obtain a dress and raincoat from her closet; court upheld seizure of incriminating evidence found in closet); Parker v. Swenson, 332 F.Supp. 1225 (E.D.Mo.1971), aff'd, 459 F.2d 164 (8th Cir.1972) (defendant was allowed to collect his personal effects from a locker following arrest; seizure of incriminating evidence from locker upheld); State v. Johnson, 306 So.2d 724 (La.1975) (defendant arrested in his underwear and led to his bedroom to get dressed; court approved police conduct in searching trousers before giving them to defendant).

3 . The state also contends that use of the evidence taken from Ricks’ jacket can independently be justified under the inevitable discovery doctrine. See Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). According to the state, an inventory of Ricks’ jacket would have been performed once he got to a place of detention, and the inventory would have disclosed the contents of the jacket.

We know of no Alaska cases invoking the inevitable discovery doctrine to justify the use of illegally seized evidence. Even assuming we were inclined to adopt the inevitable discovery doctrine, it would be inapplicable in the present case. Under the doctrine, it is incumbent on the state to establish, by a preponderance of the evidence, that discovery of the challenged evidence was inevitable: not that it might have been found but that it would have been found. Nix v. Williams, 467 U.S. at 444, 104 S.Ct. at 2509; 4 W.R. LaFave, Search and Seizure § 11.4(a) at 383-88 (2d ed. 1987).

In the present case, it is certainly conceivable that an inventory search might lawfully have been conducted and that it might have disclosed the contents of Ricks’ jacket. See Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983). Cf. Zehrung v. State, 569 P.2d 189 (Alaska 1977), modified on rehearing, 573 P.2d 858 (1978). However, the record in this case is devoid of any evidentiary showing that an inventory search of Ricks' jacket would in fact have been conducted had the jacket not been searched at the scene of the arrest. The state in effect asks us to assume that such searches are inevitable. In our view, the state has failed to meet its burden of proof with respect to the inevitable discovery doctrine. Compare United States v. Allen, 436 A.2d 1303 (D.C.App.1981) with United States v. Andrade, 784 F.2d 1431 (9th Cir.1986). See also State v. Badgett, 200 Conn. 412, 512 A.2d 160 (1986).