Jonathan N. Jarnig v State of Alaska

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JONATHAN NEAL JARNIG,
Appellant,
v.
STATE OF ALASKA,
Appellee.
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) 	Court of Appeals No. A-10519
Trial Court No. 3AN-06-12798 CR
O P I N I O N
No. 2399 — September 27, 2013
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Appeal 	from 	the 	Superior 	Court, 	Third 	Judicial 	District,
Anchorage, Patrick J. McKay, Judge.
Appearances: Douglas Moody, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
W.H. Hawley, Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Michael C. Geraghty,
Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and E. Smith,
Superior Court Judge.*
Judge ALLARD.
Jonathan Neal Jarnig was arrested on suspicion of driving a stolen vehicle.
* Sitting by assignment made pursuant to article IV, section 16 of the Alaska
Constitution and Administrative Rule 24(d).

After he was handcuffed and placed in a patrol car, the police searched the vehicle and
discovered a zippered nylon bag under the front passenger seat. The police opened the
bag and found drugs and drug paraphernalia. 	Based on this evidence, Jarnig was
convicted of third-degree misconduct involving a controlled substance. Jarnig argues
that the search of the bag was illegal and that the superior court should have suppressed
the evidence found in the bag.
We conclude that the superior court applied the wrong legal analysis and
failed to make all the necessary factual findings when it upheld the search of the bag as
a search incident to arrest. 	We therefore remand this case to the superior court for
additional factual findings and reconsideration of this issue.
Facts and proceedings
On December 4, 2006, the Anchorage police stopped a black Pontiac Grand
Am they believed had been stolen and they arrested the driver, Jonathan Jarnig. 	The
police handcuffed Jarnig and placed him in a patrol car. While Jarnig was in custody in
the patrol car, Officer James Trull searched the passenger compartment of the Pontiac.
Trull discovered a black nylon bag wedged under the front passenger seat, underneath
the lever used to move the seat forward and backward. After extracting the bag, Trull
opened the bag and found drugs and drug paraphernalia, two cell phones, a change purse,
and a toothbrush. Jarnig denied any knowledge of the bag. He said he borrowed the car
from a man named George he met at the Avenue Bar.
Jarnig was charged with third-degree misconduct involving a controlled
1 	2
substance and first-degree vehicle theft. 	Before trial, he moved to suppress the evidence
1 AS 11.71.030(a)(1).
2 AS 11.46.360(a)(1).
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found in the search of the bag, arguing that the search was illegal. Superior Court Judge
Patrick J. McKay denied the motion, ruling that the warrantless search was a valid search
incident to arrest. 	At trial, Jarnig was convicted of the drug charge and acquitted of
vehicle theft. 	On appeal, Jarnig renews his contention that the search of the bag was
unlawful.
Jarnig has standing to challenge the seizure of the bag
The State argues first that Jarnig has no standing to challenge the search of
the bag because he took the stand at trial and denied the bag was his.
In Jones v. United States,3 the United States Supreme Court adopted the
“automatic standing rule,” holding that a defendant has standing to challenge a search
and seizure when possession of the seized evidence is an essential element of the charged
offense.4 The Court’s rationale for this decision was two-fold: (1) to avoid the self-
incrimination dilemma a defendant charged with possession would face if forced to admit
5
to possession in order to assert standing to challenge a search or seizure ; and (2) to
prevent the government from arguing for purposes of conviction that the defendant
possessed contraband while denying that the contraband belonged to the defendant for
purposes of standing.6 The Court declared that it was “not consonant with the amenities,
3 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), overruled by United States
v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980).
4 Salvucci, 448 U.S. at 87-88, 100 S. Ct. at 2550-51 (citing Brown v. United States,
411 U.S. 223, 229, 93 S. Ct. 1565, 1569, 36 L. Ed. 2d 208 (1973)) (discussing Jones).
5 Jones, 362 U.S. at 262, 80 S. Ct. at 731.
6 Id., 362 U.S. at 263-64, 80 S. Ct. at 732.
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to put it mildly, of the administration of criminal justice to sanction such squarely
contradictory assertions of power by the Government.”7
The Alaska Supreme Court adopted the automatic standing rule in State v.
Salit.8 In Salit, the State argued that the defendant had no standing to challenge the search
of his garment bag because, at the time of the search, he denied the bag was his and thus
abandoned the bag.9 Relying on Jones, the supreme court concluded that the State’s
standing argument was “untenable” in a case in which a possessory offense was charged.10
The court reasoned that “[i]t would be a completely anomalous result to allow the
government to argue that the alleged contraband belonged to [the defendant] for purposes
of conviction, but that it did not belong to him for purposes of standing.”11
A few weeks after Salit was decided, the United States Supreme Court
repudiated its automatic standing rule in United States v. Salvucci.12 As the State points
out, the majority of jurisdictions that have addressed the issue since that time have
7 Id.
8 613 P.2d 245 (Alaska 1980).
9 Id. at 255 (“When property is abandoned, it no longer is subject to the protection
of the fourth amendment.”).
10 Id.
11 Id.
12 448 U.S. at 95, 100 S. Ct. at 2554-55.
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followed Salvucci and abandoned the automatic standing rule.13 But a minority of states
have retained automatic standing as a matter of state law.14
The State argues that Alaska should abandon the automatic standing rule,
but it recognizes that this Court has no authority to overrule a decision of the Alaska
Supreme Court. The State therefore urges us to hold — consistently with Salit, it argues
— that even if Jarnig had standing to contest the search before trial, he forfeited that
standing once he took the stand at trial and disavowed ownership of the bag. The State
argues that “Jarnig should not, as a matter of sound public policy, be allowed to have it
both ways.” The position the State urges is not consistent with Salit, because it would
allow the government to have it both ways — to “subject[] the defendant to the penalties
meted out to one in lawless possession while refusing him the remedies designed for one
in that situation”15 — a practice Salit expressly condemned.
The State asks us in the alternative to certify Jarnig’s case to the Alaska
Supreme Court, so that the supreme court can rule on whether Salit is still good law.
Under AS 22.05.015(b), this Court has the authority to certify a case to the Alaska
Supreme Court if the case involves a significant question of law under the constitutions
of the United States or Alaska, or if it involves an issue of substantial public interest that
13 State v. Davis, 929 A.2d 278, 314-15 (Conn. 2007) (collecting cases); David A.
Macdonald Jr., Standing to Challenge Searches and Seizures: A Small Group of States Chart
Their Own Course, 63 Temp. L. Rev. 559, 572-74 & n.119 (1990) (noting that forty-two
states had followed the United States Supreme Court’s legitimate-expectation-of-privacy test
and that most of these states had expressly eliminated automatic standing).
14 State v. Owen, 453 So.2d 1202, 1205 (La.1984); Commonwealth v. Amendola, 550
N.E.2d 121, 125-26 (Mass. 1990); 	State v. Settle, 447 A.2d 1284, 1286-87 (N.H. 1982);
State v. Alston, 440 A.2d 1311, 1319-20 (N.J. 1981); Commonwealth v. Sell, 470 A.2d 457,
468-69 (Pa. 1983); State v. Wood, 536 A.2d 902, 908 (Vt. 1987).
15 Salit, 613 P.2d at 255 (quoting Jones, 362 U.S. at 263-64, 80 S. Ct. at 732).
5 	2399

should be determined by the supreme court. The supreme court may then accept or decline
the proposed transfer of the case.
We decline to certify Jarnig’s case to the supreme court. 	The State has
advanced no persuasive reason to believe the Alaska Supreme Court is now prepared,
more than thirty years after Salvucci was decided, to repudiate the automatic standing rule
in Salit.
Furthermore, even assuming that the supreme court might be willing to
reconsider Salit, we are not convinced that there is a compelling reason to ask the court
to decide the issue outside the normal course of litigation. 	We note that in Salit the
supreme court declared that the “real” underlying issue was not whether the defendant
had standing to contest the search, but rather whether the defendant, by abandoning the
bag, lost any reasonable expectation of privacy in it.16 Likewise in this case, it appears
that the real issue is not whether Jarnig has standing to contest the search, but rather
whether he retained a reasonable expectation of privacy in the bag once he denied
ownership of the bag and the car in which it was found. The State had the opportunity
to litigate this issue in the superior court, but did not do so.
Jarnig preserved his claim for appeal
The State also argues that Jarnig waived his claim that the search was not
a valid search incident to arrest because he inadequately briefed that argument in the
superior court. We agree that Jarnig’s briefing on this question was skeletal; in his motion
to suppress, Jarnig asserted only that the police had searched the bag without a warrant.
But this fact was sufficient to shift the burden of proof to the State. “Once a search or
a seizure has been executed without a warrant, the burden falls upon the state to prove
16 Salit, 613 P.2d at 255, 258.
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by a preponderance of the evidence that one of the exceptions to the warrant requirement
applies and will sustain the search as reasonable.”17 The State argued that the search was
valid as a search incident to arrest, citing the pertinent case law. The superior court then
ruled on the merits of that claim. We conclude that, under these circumstances, Jarnig
adequately preserved this issue for appeal.18
Why we conclude that a remand is necessary in this case
Jarnig argues that the superior court erred when it found that the search of
the bag was a valid search for evidence incident to arrest.
A search without a warrant is per se unreasonable unless the search falls
within “one of the ‘few specifically established and well-delineated exceptions’ to the
warrant requirement.”19 Under the “search incident to arrest” exception, the police may
conduct a warrantless search of the area “‘within [the arrestee’s] immediate control’ at
the time of the arrest to ensure officer safety and to preserve evidence related to the
crime.”20
17 State v. Myers, 601 P.2d 239, 246 (Alaska 1979); see also Schraff v. State, 544
P.2d 834, 840 (Alaska 1975); Chandler v. State, 830 P.2d 789, 792 (Alaska App. 1992)
(same).
18 Compare Cheely v. State, 850 P.2d 653, 656 (Alaska App. 1993) (holding that the
defendant could not raise new arguments that had never been advanced, or ruled on, in the
superior court).
19 Zehrung v. State, 569 P.2d 189, 192 (Alaska 1977) (quoting Schraff, 544 P.2d at
838 (quoting McCoy v. State, 491 P.2d 127, 132 (Alaska 1971))).
20 Crawford v. State, 138 P.3d 254, 258 (Alaska 2006) (quoting McCoy, 491 P.2d at
133 (quoting Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685
(1969))).
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Under Alaska law, special rules govern a search incident to arrest when the
search is of a closed container.21 Normally, unless there are exigent circumstances — i.e.,
some risk that evidence will be destroyed or officers harmed — the police must seize the
container and apply for a warrant.22 But if the item is “immediately associated with the
person,” no exigent circumstances are required, unless the container is too small to contain
a weapon and the arrest is for a crime for which no evidence could exist in the container.23
In Crawford v. State, the Alaska Supreme Court held that the center console
of a motor vehicle is a container “immediately associated” with the person and may be
searched incident to arrest.24 The court reasoned that a center console often serves the
same function as a pocket — like a pocket, it “is commonly used to hold money, a cellular
telephone, and personal hygiene items.”25 The court explained that a suspect who has
been lawfully arrested has a diminished expectation of privacy, such that searching a
wallet, purse, pocket, or other container “immediately associated” with the person is
reasonable incident to that arrest.26 The court concluded that this holding would not
greatly expand the search incident to arrest exception, because even when a container is
“immediately associated” with an arrestee, the police must still obtain a warrant if the
container was not within the suspect’s immediate control at the time of the arrest.27
21 Crawford, 138 P.3d at 258-59.
22 Id. at 259.
23 Id.; Hinkel v. Anchorage, 618 P.2d 1069, 1070-71 (Alaska 1980).
24 138 P.3d at 259-60.
25 Id. at 260.
26 Id.
27 Id. at 261.
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When Jarnig’s suppression motion was litigated in the superior court, the
State mischaracterized this law in its briefing. The State argued that when the police arrest
the driver of a vehicle, they have the authority to search any container that was within the
driver’s reach at the time of the stop. 	At the evidentiary hearing, the State therefore
focused only on proving that the bag was within Jarnig’s reach at the time of the stop.
The State did not assert that the bag was “immediately associated” with Jarnig’s person
because it was the type of bag normally used to carry personal items. Yet in Crawford,
the supreme court made clear that, in the absence of exigent circumstances, a warrantless
search of a closed container will only be upheld as a search incident to arrest if the
container is both “immediately associated” with the person and within the person’s
immediate control at the time of arrest.28
The superior court’s order denying Jarnig’s motion to suppress appears to
have adopted the State’s incomplete legal analysis. Although the court acknowledged
the requirement that a container be “immediately associated with the [arrestee’s] person,”
the court did not actually find that this requirement had been met in Jarnig’s case. That
is, the court’s order did not assess whether the bag was used, in general or under the facts
of this case, like a purse or a pocket, to carry items that are normally kept on the person.29
28 Id.
29 In determining how a container is used, the courts generally do not consider the
items the police ultimately found in the container, unless those items were in plain view.
Prior cases have looked only at how the container is generally used, see Crawford, 138 P.3d
at 260; Hinkel, 618 P.2d at 1071; Lyons v. State, 182 P.3d 649, 651 (Alaska App. 2008);
Wilburn v. State, 816 P.2d 907, 912 (Alaska App. 1991), unless the use under the particular
facts of the case is obvious, see Howard v. State, 209 P.3d 1044, 1048 (Alaska App. 2009);
id. at 1051 (Mannheimer, J., concurring).
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Instead, the court relied on New York v. Belton30 to uphold the search. At
the time the superior court’s order was issued, Belton was widely understood to allow
the police to conduct a warrantless search under the federal constitution of any container
in the passenger compartment of a vehicle incident to the driver’s arrest, even if the driver
was in police custody at the time of the search.31 Later, in Arizona v. Gant, the United
State Supreme Court rejected this broad interpretation of Belton, holding that “Belton does
not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has
been secured and cannot access the interior of the vehicle.”32 The superior court’s reliance
on Belton further supports our conclusion that the court upheld the search based solely
on its finding that the bag was within Jarnig’s immediate control, and that the court never
determined whether the bag was “immediately associated” with Jarnig’s person.
We also note that although the superior court did expressly find that the
contraband was within Jarnig’s “immediate control,” the only fact the judge relied on for
this finding was that the bag was located “under the [seat] adjacent [to] where the
defendant was sitting.” To find that the bag was within Jarnig’s “immediate control,” the
superior court had to find that there was a reasonable possibility that Jarnig could have
accessed the bag to obtain a weapon or destructible evidence.33 It is not clear from the
30 453 U.S. 454, 101 S. Ct. 2860, 69 L.Ed.2d 768 (1981), reinterpreted in Arizona
v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009).
31 Gant, 556 U.S. at 341, 129 S. Ct. at 1718.
32 Id., 556 U.S. at 335, 129 S. Ct. at 1714.
33 See id., 556 U.S. at 339, 129 S. Ct. at 1716 (construing the area within the
arrestee’s “immediate control” as the area from within which the arrestee might gain
possession of a weapon or destructible evidence); Crawford, 138 P.3d at 261 (noting that the
“immediately associated” with the person distinction is irrelevant unless the item was
accessible to the suspect at the time of the arrest); State v. Ricks, 816 P.2d 125, 128-29
(Alaska 1991) (Moore, J., concurring) (noting that the arrestee’s jacket was not within his
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record that this determination was made. We note that there was conflicting testimony
on this point. 	Officer Trull initially testified that, in his opinion, the bag was within
Jarnig’s reach when Jarnig was sitting in the driver’s seat. But Officer Trull also testified
that the bag was “wedged under the seat,” and that, in order to extract the bag, he went
to the back seat, moved a tire out of the way, and pulled the bag out from behind the seat.
We cannot conclude from this record that, in upholding the search, the
superior court applied the correct legal analysis, or made all the factual findings necessary
to that analysis. We therefore remand this case to the superior court for additional findings
and reconsideration of whether the search was a valid search for evidence incident to
arrest.
Why we do not resolve whether the search was a valid search for weapons
at this time
We note that the superior court separately found that the search of the bag
was a valid search for weapons. We do not, at this juncture, address the validity of that
ruling. Jarnig argues that, to the extent the search was a search for weapons, the search
was illegal under Arizona v. Gant because, at the time of the search, he was handcuffed
and sitting in a patrol car and had no access to the passenger compartment of the vehicle.
As we noted earlier, Gant was decided after the superior court issued its order
in this case. In Gant, the United States Supreme Court held that the police may search
a vehicle incident to a recent occupant’s arrest in two circumstances: (1) “when the
arrestee is unsecured and within reaching distance of the passenger compartment at the
time of the search” or (2) “when it is ‘reasonable to believe evidence relevant to the crime
immediate control because there was no reasonable possibility that he could access it to
obtain a weapon or destroy evidence).
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of arrest might be found in the vehicle.’”34 Thus, under federal constitutional law, the
police may search a vehicle for weapons only when the arrestee is unsecured and within
reach of the interior of the vehicle.
There is no dispute that Jarnig was secured in a patrol car, out of reach of
the passenger compartment of the vehicle, at the time of the search. Because of this, the
State appears to concede that the search for weapons was illegal under Gant. But the State
argues that Jarnig is not entitled to exclusion of the evidence under Gant because the
search in this case took place before Gant was decided.
Jarnig’s appeal was still pending when Gant was issued on April 21, 2009,
although the search of the bag took place years earlier, in December 2006. 	The United
States Supreme Court has held that Gant applies retroactively to all decisions that were
35 	36
pending on direct appeal when Gant was decided. 	However, in Davis v. United States,
the Supreme Court held that a defendant is not entitled to exclusion of the evidence if the
police conducted the search in objectively reasonable reliance on pre-Gant law.37 The
Court found that exclusion of the seized evidence was not required in Davis, because the
police reasonably relied on then-binding precedent in the Eleventh Circuit, which had
construed Belton to authorize the search of the entire passenger compartment of a vehicle
incident to a recent occupant’s arrest.38
Here, the parties have not had an opportunity to meaningfully brief whether,
at the time of the search in this case, Alaska law provided the police with the type of
34 556 U.S. at 343, 129 S. Ct. at 1719.
35 Davis v. United States, ___ U.S. ___, 131 S. Ct. 2419, 2431, 180 L. Ed. 2d 285
(2011).
36 Id., 131 S. Ct. 2419.
37 Id., 131 S. Ct. at 2428-29.
38 Id.
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bright-line rule the Supreme Court identified in Davis. 	Nor have the parties briefed
whether this court should adopt a good-faith exception to the exclusionary rule in this
context. Therefore, if the superior court concludes that the search of the bag was not a
valid search for evidence under Crawford, the parties may litigate this issue in the superior
court.
Conclusion
We REMAND Jarnig’s case to the superior court for additional findings and
for reconsideration of whether the search of the bag was a valid search for evidence
incident to arrest. If the superior court concludes that the search was not a valid search
for evidence, the parties may litigate whether Jarnig is entitled to exclusion of the evidence
under Gant.
The superior court shall transmit its findings and decision to this Court within
90 days. 	The parties shall then have 45 days to submit simultaneous supplemental
memoranda addressing the superior court’s new findings and decision. 	We retain
jurisdiction.
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