Reeves v. State , 1979 Alas. LEXIS 672 ( 1979 )

BOOCHEVER, Chief Justice,

with whom MATTHEWS, Justice, joins, dissenting.

I agree with the majority’s statements of the requirements for a valid plain view seizure of evidence: (1) the initial intrusion which afforded the view must have been lawful, (2) the discovery of the evidence must have been inadvertent, and (3) the incriminating nature of the evidence must have been immediately apparent.

1 also agree with the test set forth in the opinion for determining whether the incriminating nature of the evidence is immediately apparent: “[I]t is not certainty but rather probable cause which is required to justify a plain view seizure.”

I do not think, however, that the evidence enables us to conclude that the correctional officer’s seizure and search of the balloons was not based on his reasonable judgment prior to the seizure that the balloon contained contraband. The questioning of the officer was not directed to this issue. In a context which was not entirely clear,¹ however, he was asked:

Q. Did you have a feeling that that might be some kind of contraband?

A. I did.

The officer probably was able to detect the powder-like nature of the substance contained in the balloon when he removed the balloon from Reeves’ possession. Nowadays, it is almost inconceivable that a powder-like substance rolled up in a balloon taken from a person who is found driving while intoxicated would not be some type of illicit drug. Conceivably, it could be talcum powder, but that strains credulity. Certainly, a trial court could consider these facts in determining whether there was probable cause for a correctional officer to be justified in assuming that a tightly rolled one-half inch balloon packet contained drugs.

I,therefore, would remand the case for a further hearing on the issue of whether or not the correctional officer’s seizure and search of the balloon was based on his reasonable judgment prior to that search that the balloon contained contraband, and whether that belief was grounded upon probable cause.

1 . The testimony may have referred to the powdery substance removed from the balloon, as opposed to the unopened balloon with its unrevealed contents.