State v. Ricks , 816 P.2d 125 ( 1991 )

ORDER

it IS ORDERED:

1. The opinion of the court of appeals in Ricks v. State, 771 P.2d 1364 (Alaska App.1989), is vacated.

2. The decision of the court of appeals reversing Ricks’ conviction on Count VII of the indictment is affirmed for the reasons, as expressed by the court of appeals, which follow:

As the trial court expressly found, ... 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. None of these eases hold or suggest that an article may be subjected to a warrant-less 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.

Ricks, 771 P.2d at 1368 (footnote omitted).

Entered by direction of the court at Anchorage, Alaska on July 26, 1991.

MOORE, Justice, concurring. See attached concurrence.