Jackson v. State ( 1990 )

SINGLETON, Judge,

dissenting.

Officer Dahl testified, and the trial court found, that he searched Jackson’s wallet for a weapon such as a razor blade or a small knife. Officer Dahl testified that in the past he had found such weapons in wallets as small as Jackson’s. It is undisputed that Jackson’s wallet was associated with his person. Under the circumstances, such a container may be seized, opened, and searched incident to the arrest unless the container is too small to contain a weapon. Hinkel v. Anchorage, 618 P.2d 1069, 1070 (Alaska 1980). See McCoy v. State, 491 P.2d 127 (Alaska 1971). Whether the container was too small to contain a weapon of the kind described by Officer Dahl was a question of fact. It does not appear that Judge Johnstone’s conclusion was clearly erroneous.

The majority has adopted a requirement that officers must have reason to know a wallet contains a razor blade before they can search for one. This test is unworkable. As Justice Marshall recognizes in his dissent in Robinson, a frisk of the person or even, by extension, a pat-down of the wallet itself will not always disclose the presence of a razor blade. 414 U.S. at 253, 94 S.Ct. at 485. Thus, under the test adopted by the majority, an officer will never be justified in searching for razor blades, safety pins, needles, or small knives. Such a rule endangers arresting officers required to transport those they arrest without, in any significant way, protecting the privacy of those they arrest.

In evaluating the appropriate scope of a weapon’s search incident to an arrest, I am satisfied that Professor LaFave is correct when he says:

In discussing searches for evidence, it was noted that if an evidentiary search need not be limited to predetermined objects it would be extremely difficult to impose practical limits upon the scope of the search. Somewhat the same problem exists here. The purpose of the search, in the words of the Supreme Court in Robinson, is to find “any weapons that the [arrestee] might seek to use in order to resist arrest or effect his escape.” “Any weapons,” it would seem, is not limited to bulky guns and knives which could be readily detected in a patdown, nor to those weapons to which the arres-tee has immediate access in the outer areas of his clothing. As even the Robinson dissenters acknowledge:

If the individual happens to have a weapon on his person, he will certainly have much more opportunity to use it against the officer in the in-custody situation [than in a Terry type of case]. The prolonged proximity also makes it more likely that the individual will be able to extricate any small hidden weapon which might go undetected in a weapons frisk, such as a safety pin or razor blade. In addition, a suspect taken into custody may feel more threatened by the serious restraint on his liberty than a person who is simply stopped by an officer for questioning, and may therefore be more likely to resort to force.

If, then, under the Terry rule, “an officer may not remove an object from the suspect’s pockets unless he has reason to believe it to be a dangerous weapon,” the limitation is unduly strict in the case of a weapons search incident to arrest. Rather, it would seem that an object not clearly identifiable as something other than a “small hidden weapon” must be amenable to further inspection. And if the object is a container which might have some kind of weapon within it, it seems reasonable that the officer should look inside the object, as the Supreme Court appears to have decided in Peters v. New York, [392 U.S. 40, 88 S.Ct. 1912, 20 L.Ed.2d 917 (1968) ].¹ The alternative, requiring the officer to retain all such objects without inspecting them, is less than practicable.

If the “general authority” to search an arrestee for weapons must extend this far, then it is very doubtful whether any realistic intensity limitation upon such searches is feasible. Moreover, any such limitation would ■ appear to be of little significance whenever the searching activity may be justified upon additional grounds such as to obtain evidence or to ensure the security of a custodial facility.

2 W. LaFave, Search and Seizure § 5.2(d), at 454-55 (2d ed. 1987) (footnotes and citations omitted).

LaFave offers some reasons for rejecting Justice Marshall’s suggestion that small containers possibly holding atypical weapons could merely be seized rather than searched to protect the officer from violent attack.

This alternative “position would require the officer to retain all confiscated containers in his own possession throughout the trip to the stationhouse following a custody arrest. In a typical street encounter a single officer might well have to cope with wallets, purses, cigarette packages, envelopes, and a myriad of other items. Moreover, should officers other than the arresting policeman provide transportation to the station-house, this procedure would require some potentially cumbersome system of accountability to guard the police against claims of loss.”

Id. at 455 n. 81 (citation omitted).

It is clear that the Supreme Court of Alaska has rejected seizure of small containers associated with the person as an alternative to their search. Hinkel, 618 P.2d at 1071-73; Middleton, 577 P.2d at 1055; McCoy, 491 P.2d at 133-34.

I would AFFIRM the judgment of the superior court.²

1 . Peters is cited with approval in McCoy, 491 P.2d at 135-36.

2 . I recognize that Jackson was a nonviolent offender arrested for a nonviolent offense. La-Fave, in addressing this issue states:

[I]t is well to remember that in a particular case a policeman is not dealing with a class of offenders, but rather with one particular offender, and when that person "stands before the officer, he contains a potential for danger, quantum unknown." The fact that it may be fair to assume that traffic offenders, as a class, are not as frequently armed as burglars really tells the officer nothing about whether defendant [x] poses a greater or lesser risk than defendant [y]. And to expect the arresting officer to somehow divine which traffic offenders are most likely to be armed by reference to some “special circumstances,” such as "furtive movements,” seems highly unrealistic and impracticable. In short, the justification for a protective search “is not the greater likelihood that a person taken into custody is armed, but rather the increased likelihood of danger to the officer if in fact the person is armed.

2 W. LaFave, Search and Seizure § 5.2(e), at 456-57 (2d ed. 1987) (citations omitted) (emphasis in original).