Zehrung v. State

BURKE, Justice,

dissenting.

I respectfully dissent. In my opinion our original holding in this case was overly broad. Specifically, I now disagree with the view that one in the position of Zehrung “should be allowed a reasonable opportunity to attempt to raise bail before being subjected to the remand and booking procedures and the incident inventory search.” Zehrung v. State, 569 P.2d 189, 195 (Alaska 1977).1

*860While I still adhere to the basic holding, that when the accused in such cases is able to post the required bail he should be released, and that beyond that point there is no justification for an inventory search,2 I think it is unreasonable to require jail personnel to delay the ordinary booking process, and incident inventory search, in order to allow the prisoner time to “get in touch with a relative, an employer, a friend, or an attorney, who could come to the station-house” to post bail. Id. Thus, I would modify the opinion in this case and hold as follows:

1. Where the prisoner is able to post the required bail he should be immediately released; provided, however, that detention for such additional time as may be reasonably necessary to allow him to be fingerprinted and photographed would be allowed.3

2. If the prisoner is not able to post bail the ordinary booking process and remand should proceed without delay.

3. If during that process, or thereafter, the defendant becomes able to post the required bail he should be immediately released, subject to the limitation expressed in paragraph 1.

. This holding, of course, is specifically limited to cases where the accused is arrested for a petty offense, for which bail has been set by the adoption of a bail schedule.

. The right to conduct an “inventory” search should not be confused with the right to search for weapons. Under our first opinion I think it is clear that jail personnel are entitled to make an immediate and thorough search for weapons, or any item that could be used as a weapon, whenever a prisoner is delivered into their custody. See Zehrung v. State, 569 P.2d 189, 199-200 n. 39 (Alaska 1977). On that issue I have no quarrel with the majority. I would note, however, that a search for weapons, if it is to serve its purpose, cannot be limited to a search for large items such as a knife or a gun. A razor blade can be an equally dangerous weapon when held at the throat of a hostage.

. The majority did not pass on the latter issue. My own view is that we should. As I stated at the time of our original decision:

I . believe that there can be some limitation on the right to ‘immediate release’ after posting bail. Specifically, I would hold that detention for such time as may be reasonably necessary to allow the authorities to fingerprint and photograph the accused is allowable. Otherwise, there may be no record from which his identity can later be determined with certainty.

Zehrung v. State, 569 P.2d 189, 200 (Alaska 1977) (concurring opinion).