State v. Morris

BRYNER, Chief Judge,

dissenting.

I am concerned that Judge Coats’ opinion fails to address a number of important and potentially meritorious constitutional arguments that bear directly on the validity of the warrant in this case and are necessary to resolve in order to sustain the search.1 Nevertheless, I deem it unnecessary to address these issues in my dissent, since I think that, even assuming the anticipatory search warrant was validly issued, it cannot be relied upon to justify the search of the package found in Sudie Burnham’s car. I believe that a careful consideration of the language in the warrant supports Judge Schulz’ conclusion that the search in this case must be evaluated under standards applicable to warrantless searches and seizures.

In Johnson v. State, 617 P.2d 1117 (Alaska 1980), the Alaska Supreme Court approved the use of anticipatory search warrants in Alaska and emphasized that in appropriate circumstances such warrants can be of vital significance in aiding the legitimate purposes of law enforcement. I have no quarrel with the supreme court’s ruling in Johnson, and I support its assessment of the value and significance of anticipatory warrants.

The court in Johnson, however, recognized that, in order to guard against abuse, careful attention must be paid to the preparation and issuance of anticipatory warrants. In particular, the court emphasized that an anticipatory warrant must make clear on its face the anticipated events that will trigger its provisions and authorize commencement of a search. See Johnson v. State, 617 P.2d at 1124 n. 11. In the present case, the primary event specified as a prerequisite to execution of the anticipatory warrant was the requirement that the package containing drugs be “followed” after being picked up at the airport. Although Judge Coats’ opinion finds difficulty in determining the scope of this requirement, and Judge Singleton’s concurring opinion would give this requirement little weight insofar as seizure and search of the packet is concerned, I believe that the language of the warrant must be enforced, and I think that determining the meaning of the language is a relatively simple task, involving little more than a straightforward reading of the warrant and common sense.

In context, it seems apparent that the warrant, by requiring the package to be “followed ... to the place into which it is taken” was meant to establish a requirement of reasonably continuous surveillance as a precondition of the seizure of the package and of the search of its contents. This was the manner in which Judge Schulz in*866terpreted the warrant, and I believe that his interpretation should not be disturbed unless it is found to be clearly erroneous. I cannot conclude that Judge Schulz’ interpretation of the warrant was clearly erroneous. The face of the warrant must be read in a fair and reasonable manner, one that is calculated to effectuate the intent of the judge who originally issued it. By requiring the package to be “followed," the issuing judge plainly intended to assure that the package and the people who possessed it would be monitored sufficiently closely to prevent the package or its contents from being replaced, altered or destroyed. In other words, the warrant required a level of surveillance that would assure that the package, its whereabouts and its contents, could reasonably be accounted for at all times prior to the search authorized by the warrant, a standard akin to the “chain of custody” standard provided for under our rules of evidence. See Alaska R.Evid. 901 commentary at 268 (1980).

Based on the record before us, I believe that an appropriate level of surveillance was maintained up to and including the time that Burnham and Morris left their automobile and entered Burnham’s home. At this point, however, police lost track of the package. Visual inspection of Burn-ham’s automobile led police to believe that the package had been taken inside the house. Some fifteen to twenty minutes elapsed before officers observed Burnham and Morris driving away from the house; there is nothing to indicate that officers observed the package being carried back from the house to the car. To this date, it has apparently not been determined with certainty whether the package was in the car or in the house during this fifteen to twenty minute interval. When Burnham was ultimately stopped, investigating officers actually believed that the package was still at her house.

Given these circumstances, I do not think it is fair to say that the officers who were charged with executing the search warrant “followed” the package to its ultimate point of seizure; they did not maintain reasonably continuous surveillance over it in any realistic sense. While Burnham and Morris were in Burnham’s house, the package was unaccounted for and its whereabouts were unknown; the amount of time that elapsed would have been more than ample to permit destruction or adulteration of any substance originally contained in the package, or even replacement of the original package with another, similar package. There is virtually nothing in the record to support the conclusion that, after Burnham was stopped and officers looked into her car, they were positive that they had discovered the original package that contained drugs. To the contrary, after Burnham was stopped, officers were certain only that the ear contained the wrapping from the original package; the wrapping had previously been seen in Burn-ham’s car when Burnham and Morris were in Burnham’s house, but at that time there did not appear to be a package in the car. After Burnham was stopped, officers observed a box, which they assumed to be the one originally contained in the wrapping. While this assumption may have been a reasonable one, it could hardly make up for the fact that the package had not been continuously “followed,” as required by the warrant.

In short, I agree with Judge Schulz that the warrant created, on its face, a condition that was violated when continuous surveillance over the package ceased; continuous surveillance ceased when surveillance over the package and the people who possessed it was interrupted for a substantial period of time.2 Thus, even assuming the warrant as *867originally issued was valid, by the time Burnham’s car was stopped, the package was no longer being “followed,” reasonably continuous surveillance had not been maintained pursuant to the requirements of the warrant, and, by its own terms, the warrant could no longer be deemed enforceable.3

Analysis of the issue in this case from a slightly different perspective similarly indicates that, even if originally valid, the anticipatory search warrant was no longer effective after Burnham and Morris left Burnham’s house. A common sense reading of the search warrant, in its entirety, indicates that it was meant to allow officers two options: first, to seize the package immediately after it was picked up at the airport; or, second, to follow the package to its initial destination, which could then be searched. To read the warrant more broadly, by interpreting it to allow police to follow the package, over a period of time, to a number of different locations, thus permitting officers to choose which “premises” they wanted to search, cannot be justified. Such an interpretation would convert the warrant into an impermissible, general authorization for officers to substitute their judgment for that of the magistrate and to select arbitrarily the premises they desired to search. In order to avoid this unconstitutional result, it is reasonable to construe the warrant as being meant to allow police, at most, to follow the package to the premises where it was first taken after being claimed and to permit a search of only those premises. Thus, implicit in the warrant is the limitation that the warrant would not apply beyond the original premises to which the package was taken. Under this interpretation, the warrant ceased to be effective after Morris and Burnham left Burn-ham’s house.

Adopting either approach, I believe it must be concluded that the warrant authorizing search and seizure of the package containing drugs was no longer enforceable when police stopped Burnham’s car. The conduct of the officers at the scene supports this conclusion. Significantly, police officers who seized the package from Burn-ham’s car and opened it never claimed to be *868executing the previously issued warrant. To the contrary, the record indicates that officers at the scene of Burnham’s arrest thought the warrant only authorized them to enter and search Burnham’s home. There is nothing in the record to indicate that officers who seized and opened the package purported to be executing the anticipatory warrant.

Given my conclusion that the warrant had already expired by the time that the package was seized, opening it could only be justified by an exception to the warrant requirement. I believe that Judge Schulz properly found that, while officers had the right to seize the package under the plain view and search incident to arrest exceptions to the warrant requirement, neither of these exceptions could justify actually opening the package. See, e.g., Dunn v. State, 653 P.2d 1071, 1082-83 (Alaska App.1982). Similarly, even under the broad interpretation recently announced by the United States Supreme Court, the automobile exception to the warrant requirement might have justified seizure of the package, but it would not necessarily have permitted a search. See United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).4

I thus conclude that Judge Schulz was correct in ruling that the search of the package taken from Burnham’s car amounted to an invalid, warrantless search. I would affirm the suppression order entered by the superior court.5

. I also take exception to that portion of the majority opinion which states that, in dealing with anticipatory warrants, “the magistrate does not decide that probable cause exists at the time the police obtain the warrant; rather, he decides that probable cause to search exists if particular anticipated events occur in the future.” I think this language is incorrect and potentially misleading. Both the United States and Alaska constitutions require that warrants be issued based upon a showing of probable cause. No lesser standard exists, and this same requirement applies to anticipatory warrants. Anticipatory warrants cannot be used as a vehicle for a magistrate to delegate to the police his constitutionally mandated duty .to determine existence of probable cause. The distinction between a traditional search warrant and an anticipatory warrant does not depend upon whether probable cause will be established before or after the warrant is issued. In all cases a showing of probable cause must precede issuance of the warrant. With anticipatory warrants, the difference lies in the fact that the showing of probable cause will establish that evidence of a crime is likely to exist at a specified future time and under specified future conditions. The issuance of an anticipatory warrant does not, therefore, leave determination of probable cause to officers charged with executing the warrant. Instead, officers need only determine whether the anticipated events triggering the anticipatory warrant have occurred.

. Cf. Illinois v. Andreas, — U.S. —, 103 S.Ct. 3319, 76 L.Ed.2d — (1983) (warrantless opening of a shipping case containing drugs approved where container was previously lawfully opened and inspected by police and then resealed and delivered to the defendant, and where the size and specialized purpose of the shipping container made it unlikely that its contents had been changed during a 30-45 minute break in surveillance that occurred while the container was in the defendant’s possession).

While the approach advocated by Judge Singleton in his concurring opinion is persuasive and makes a good deal of sense, I am ultimately not convinced that it resolves the basic prob*867lems of this case. The concurring opinion treats the portion of the warrant authorizing seizure and search of the package as severable from the authorization to conduct a search of the premises where the package was to be taken; Judge Singleton concludes that the authorization to seize and search the package was in effect nonanticipatory in nature, and therefore not problematical.

I believe this conclusion to be flawed for two reasons. First, there can be no doubt that the warrant was an anticipatory one, both in authorizing a seizure and search of the package and in authorizing a search of the premises into which the package was to be taken. The warrant permitted seizure and search of the package only after it was claimed at the airport by Alephe Morris or some other person. Since, at the time the warrant was issued, the package had not yet been delivered to the airport or claimed by anyone, this aspect of the warrant was obviously anticipatory. Second, by the express language of the warrant, the requirement that the package be “followed” at all times after it was claimed served as a condition precedent to both the search of premises and the seizure and search of the package authorized by the warrant. Both aspects of the warrant were governed by this precondition.

Thus, I do not think that the lack of compliance with the warrant’s requirement of reasonably continuous surveillance can be disregarded for purposes of evaluating the lawfulness of the search conducted in this case.

. The opinion written by Judge Coats skirts these problems by pointing out that probable cause existed to open the package, even though it had been lost from view for more than a quarter of an hour. While this observation may be correct, it begs the issue of whether the opening of the package was authorized by the warrant. Probable cause, standing alone, could not have justified a warrantless opening of the package. Thus, the crucial inquiry is not whether probable cause existed when the package was opened, but rather whether the circumstances under which it was opened complied with the requirements of the anticipatory warrant. To the extent that Judge Coats’ opinion implies that the warrant could lawfully have purported to authorize seizure and search of the package at any time and. under any circumstances, so long as probable cause existed to open it, I must disagree. Such an interpretation would be contrary to the plain language contained on the face of the warrant and would be at odds with Judge Schulz’ interpretation of that language. More significantly, such an interpretation would inevitably render the anticipatory warrant so broad that the constitutional requirement of particularity would not be satisfied.

. In Ross, the United States Supreme Court extended the automobile exception to the warrant requirement to allow a warrantless search of all areas of an automobile and all relevant containers found therein where there was probable cause to search the automobile. In so holding, however, the court distinguished cases involving probable cause to believe that an automobile contained contraband from cases in which there was probable cause to believe that a specific container contained contraband, and the container was subsequently placed in an automobile. The court in Ross indicated that this latter type of case would continue to be governed by its prior rulings in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) and Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979).

. The state has not argued that the inevitable discovery doctrine should be adopted under the circumstances presented here; apparently no such argument was made before Judge Schulz. Given the lack of briefing on the issue and given the fact that application of the inevitable discovery doctrine involves both factual and legal questions, I do not think it appropriate to consider the doctrine at this stage. I would not, however, foreclose consideration of the issue on remand, if raised by the state. It is virtually uncontested that the police lawfully seized the package from Burnham’s car. In light of the fact that a warrant had previously been issued for the search of the package containing drugs, and since, by all appearances, the package seized was the original package, it seems difficult to believe that a warrant to open the package would not have been issued. Assuming that the inevitable discovery doctrine were adopted in Alaska, it seems that applicability of the doctrine to this case would merit consideration.