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THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN W. MILTON, )
) Court of Appeals No. A-4958
Appellant, ) Trial Court No. 4FA-S92-2685CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1368 - September 2, 1994]
)
Appeal from the Superior Court, Fourth
Judicial District, Fairbanks, Richard D.
Savell, Judge.
Appearances: Lynn E. Levengood, Downes,
MacDonald & Levengood, P.C., Fairbanks, for
Appellant. James L. Hanley, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
John W. Milton was convicted of misconduct involving a
controlled substance in the third degree, a class B felony, for
possessing cocaine with the intent to deliver. AS
11.71.030(a)(1). He was also convicted of possession of cocaine,
a class C felony. AS 11.71.040(a)(3)(A). Milton appeals,
contending that Superior Court Judge Richard D. Savell erred in
denying his motion to suppress the cocaine the state had used to
convict him of the class B felony offense. Milton's appeal
raises questions concerning the privacy rights of a third-party
custodian -- the right of a person who has a probationer released
into his custody and has that probationer living in his
residence, to a reasonable expectation of privacy in his
residence from a search directed by the probationer's probation
officer.
In March of 1992, Jesus F. Gutierrez was on probation
as a result of a previous conviction involving the sale of
cocaine. Gutierrez evidently did not comply with the conditions
of his probation and was ordered to appear for revocation
proceedings scheduled the week of March 30, 1992. Gutierrez
failed to appear and was subsequently arrested pursuant to a
warrant on August 5, 1992.
Gutierrez was held without bail and, at a hearing on
August 14, 1992, sought to be released into the third-party
custody of his long-time friend, John W. Milton. At this
hearing, Milton testified that he lived alone, had known
Gutierrez since 1982, and was willing to permit Gutierrez to
reside with him even though he knew that Gutierrez had violated
probation. The state opposed the third-party arrangement and
urged the court to order that Gutierrez continue to be held
without bail.
The court set Gutierrez's bond at $1,000 and ordered
that, should the bond be posted, Gutierrez would be released into
Milton's custody. As conditions of release, the court ordered
that Gutierrez not use or possess any illegal drugs or alcohol.
The court stated that Gutierrez was to remain subject to the
"terms and conditions of probation." The court told Milton that
he was obligated to report any perceived probation violations to
Gutierrez's probation officer. The court also informed Milton
that he could be held in contempt if he failed to report such
violations. Milton accepted these terms and secured Gutierrez's
release by posting the prescribed bond.
Probation Officer Donald H. Allen supervised Gutierrez
following his release into Milton's custody. As a condition of
probation, Gutierrez was required, upon request of a probation
officer, to submit to a search of his residence for the presence
of contraband. Allen met with Gutierrez approximately three days
per week. Based upon these contacts, as well as information
Allen had received from the Alaska State Troopers, Allen
suspected that Gutierrez was using and possibly selling cocaine.
Allen informed Gutierrez that his residence would be searched
immediately because reasonable grounds existed to believe that
Gutierrez "was either using or distributing drugs."
Allen and Gutierrez went to Milton's apartment where
Gutierrez had been residing. They were accompanied by Probation
Officer Ronald Murray and Alaska State Troopers Michael Stickler
and Nathan Sheets. Murray used Gutierrez's key to open the
apartment door. The officers entered the apartment and observed
Milton sitting on the couch in the living room. Under Allen's
direction, Milton and Gutierrez seated themselves at the dining
room table while the other officers made a protective sweep of
the entire apartment to determine that no others were present
inside. At some point, Allen noticed traces of white powder on a
coffee table in the living room and alerted Sheets to this
discovery. Following the protective sweep, the officers
undertook an extensive search of the apartment while Allen
continued to observe Milton and Gutierrez. Trooper Stickler
first searched the bathroom where he found a bottle of inositol -
- a cutting agent for cocaine -- on the counter and a recently-
washed plastic baggie in the trash can. At approximately the
same time, Murray began searching Gutierrez's bedroom and Sheets
began searching Milton's bedroom. Stickler reported his findings
to Allen and then assisted Sheets in searching Milton's bedroom.
Upon entering Milton's bedroom, Stickler and Sheets
discovered letters and bills on a night stand, some addressed to
Milton and at least one addressed to Gutierrez. Stickler also
discovered traces of white powder on the night stand, but could
not recover enough of the powder to conduct a field test. These
discoveries were relayed to Allen, who, at some point, exchanged
assignments with Sheets and apparently assisted Stickler in
completing the search of Milton's bedroom.
Stickler entered Milton's walk-in closet where he
noticed a black nylon suitcase sitting on the floor. Stickler
searched the suitcase. As he removed items of clothing and rain
gear, Stickler found a clear plastic bag containing approximately
two ounces of a substance that field tested positive for cocaine.
Milton was then placed under arrest and advised of his rights.
This cocaine was the basis for the state's charge that Milton
possessed cocaine with the intent to distribute. Stickler then
proceeded to Gutierrez's bedroom where a search was underway.
While searching Gutierrez's room, the officers
discovered a receipt for a pager that Milton had apparently
rented. Inside the closet, Murray found a plastic bag containing
a white material that he believed to be a cutting agent.
Officers also discovered traces of cocaine on top of the dresser
and assorted papers bearing the names of both Gutierrez and
Milton. A used syringe was found under Gutierrez's mattress.
The officers also searched the kitchen area where they found an
electronic scale and paper they suspected had been used in
packaging cocaine.
After relieving Allen, Sheets kept watch over Gutierrez
and Milton as other officers finished searching the apartment.
After the search was completed, Sheets performed a field test.
The results indicated that the substance on the coffee table
contained cocaine.
Milton and Gutierrez were transported to the Fairbanks
Correctional Center for booking. A corrections officer completed
an inventory of Milton's personal property and discovered $1,794
in cash and .27 grams of cocaine in Milton's wallet. The state
based the possession charge on the cocaine found in Milton's
wallet.
Before trial, Milton moved to suppress all evidence
resulting from the search of his apartment. Milton conceded that
the probation officers had the authority to search Gutierrez and
Gutierrez's living area without a warrant. Milton argued,
however, that expanding the warrantless search into his private
bedroom was unlawful. The state argued that Milton had no
reasonable expectation of privacy in his residence because Milton
had allowed Gutierrez to live with him knowing full well that
Gutierrez's residence was subject to warrantless searches by
probation officers.
Following an evidentiary hearing, Judge Savell denied
Milton's motion. Judge Savell noted that it was not disputed
that the probation officers had a reasonable basis and legal
authority to search Gutierrez's residence. He found that the
court had previously advised Milton of his duties as a third-
party custodian and that Milton, therefore, knew or should have
known that the place where Gutierrez resided would be subject to
search. He also found that Gutierrez had access to the entire
apartment. Judge Savell concluded that since Gutierrez had
access to Milton's bedroom, Milton had no reasonable expectation
of privacy in the bedroom.
In general, "a warrantless entry by police into a
person's home is per se unreasonable and violative of the state
and federal constitutions unless it falls within one of the
limited exceptions to the warrant requirement." Harrison v.
State, 860 P.2d 1280, 1283 (Alaska App. 1993) (citations
omitted). A search by a probation officer of a probationer's
residence is a recognized exception to the warrant requirement as
long as the search has been authorized by the conditions of
probation or release, the search is conducted by or at the
direction of probation authorities, and the search bears a direct
relationship to the nature of the crime for which the probationer
was convicted. See Griffin v. Wisconsin, 483 U.S. 868, 880
(1987); Soroka v. State, 598 P.2d 69, 71 nn.5 & 8 (Alaska 1979);
Roman v. State, 570 P.2d 1235, 1243 (Alaska 1977).
While it is undisputed that the probation officers had
authority to search Gutierrez's residence, the issue here is the
proper scope of that search. Where the probationer is sharing
living quarters with another person who is not subject to similar
conditions, it seems clear that the probation officer and people
working under his direction may search all parts of the premises
that the probationer has common authority to use. 4 Wayne R.
LaFave, Search & Seizure 10.10 n.70.1 (2d ed. Supp. 1990).1
However, courts have recognized that a person who is living with
a probationer retains a reasonable expectation of privacy in the
residence and in his personal possessions. In United States v.
Davis, 932 F.2d 752, 758 (9th Cir. 1991), the court limited the
scope of a warrantless probationer search, holding that the
searching officer "must have reasonable suspicion, that an item
to be searched is owned, controlled, or possessed by a
probationer, in order for the item to fall within the permissible
bounds of a probation search." In People v. Boyd, 274 Cal. Rptr.
100 (Cal. App. 1990), the court stated:
[W]here police officers do not know who owns
or possesses a residence or item and such
information can be easily ascertained, it is
incumbent upon them to attempt to ascertain
ownership in order to protect the privacy
interest of both probationer and nonpro-
bationer. If it is objectively unreasonable
for officers to believe that the residence or
item falls within the scope of a search
condition, any evidence seized will be deemed
the product of a warrantless search absent
other considerations. Whether the officer's
belief is objectively reasonable would
usually be a factual question to be resolved
by the court hearing the suppression motion.
Id. at 107 (quoting People v. Tidalgo, 176 Cal. Rptr. 463, 466
(1981)) (citations and footnote omitted).
In Boyd, the court went on to explain that whether
actions were objectively reasonable in a parole or probation
search was a factual matter not subject to rigid rules:
Moreover, we reject any suggestion that a
parole search will automatically be invali-
dated simply because the officer fails to ask
the nonparolee roommate whether the object
about to be searched is his or her property.
Such a rigid rule would unnecessarily bind
the officer to the answer given, regardless
of its veracity. The officer should not be
bound by the reply in the face of the
overwhelming evidence of its falsity. Even
if the nonparolee roommate's claim of
ownership sounds reasonable, reasonable
suspicion may be predicated on the parolee's
possession or control of the object. The
officer must reasonably suspect that the
object is owned, controlled or possessed by
the parolee for the search to be valid.
Depending upon the facts involved, there may
be instances where an officer's failure to
inquire, coupled with all of the other
relevant facts, would render the suspicion
unreasonable and the search invalid.
Boyd, 274 Cal. Rptr. at 108 (footnote omitted).
We first turn to Judge Savell's finding that because
Milton knew or should reasonably have known that Gutierrez's
probation officer was authorized to search any house Gutierrez
resided in, Milton waived his right to object to the search of
his residence when he agreed to act as Gutierrez's third-party
custodian. Judge Savell's ruling turns on a question of law, not
a question of fact. As a factual matter, Milton never explicitly
waived his right to privacy, nor did he ever explicitly consent
to searches of his home by Gutierrez's probation officer. Milton
did explicitly agree to house Gutierrez and be his custodian
pending the probation revocation hearing. Judge Savell ruled
that, as a matter of law, Milton's agreement to house Gutierrez
(knowing that he was a probationer whose residence was subject to
search) amounted to a waiver by Milton of his right to object to
searches by Gutierrez's probation officer.
As discussed above, the law is otherwise. Courts
generally hold that a person who agrees to house a probationer
retains a limited expectation of privacy in his person,
possessions, and residence. This expectation of privacy is
limited because the probation officer is entitled to search the
probationer, the probationer's possessions, and the probationer's
residence. In the case of a shared residence, the probation
officer's search may extend to all areas of the residence over
which the probationer has control, even if that control is not
exclusive. This includes common areas of the residence.
Therefore, the probation officer may search areas of the house
and items of property within the house to the extent that the
officer has reason to believe that the area or item searched is
owned, possessed, or controlled by the probationer -- even if it
later turns out that the area or item searched was in the
exclusive possession of the homeowner.
By agreeing to house Gutierrez, Milton gave up his
right to object to a search of these dimensions, but he retained
his right to object to a search that exceeded these dimensions.2
Milton could therefore seek suppression of evidence found during
a search that exceeded the limits outlined in the previous
paragraph.
We also disagree with Judge Savell's alternative
finding that Milton had no legitimate expectation of privacy in
his individual bedroom, bedroom closet, and suitcase because
these areas were "kept open" so as to be physically "accessible"
to Gutierrez. The fact that the probationer may be physically
capable of gaining access to areas or items within the house is
not decisive when determining the scope of the authorized search.
A boarder or a guest may be physically capable of invading any
space within the house, or of obtaining physical access to any
item within it, without the knowledge of the householder.3 If
the law allowed a probation officer to search any area or item
that the probationer might have gained access to, practically
everything within the house would be subject to search. Such a
result is contrary to the established law in this area, which
requires that the probation officer have a reasonable suspicion
that the area or item to be searched is within the "ownership,
possession, or control of the probationer." United States v.
Davis, 932 F.2d 752, 760 (9th Cir. 1991); People v. Boyd, 274
Cal. Rptr. 100, 108 (Cal. App. 1990). See also 3 Wayne R.
LaFave, Search and Seizure 8.3(f) and (g) (2d ed. 1987)
(discussing the authority of a third party to consent to searches
of a shared premises, and distinguishing areas of "joint access"
from areas of "exclusive control").
We therefore vacate Judge Savell's ruling on Milton's
suppression motion, and remand this case to the superior court
for reconsideration of that motion based upon the law stated in
this opinion.4 On remand, Judge Savell may, in his discretion,
allow the parties to present further evidence.
REMANDED.
_______________________________
1. In State v. Johnson, 748 P.2d 1069 (Utah 1987),
the court said:
A warrantless search of a parolee may result
in an invasion of privacy, at least to some
extent, for those living with the parolee.
If the Fourth Amendment rights of nonparolees
living with parolees were not reduced, a
parolee could avoid all warrantless parole
searches by living with a nonparolee and
asserting the nonparolee's constitutional
rights, and thus emasculate one significant
feature of the parole system.
Id. at 1073 (footnote and citations omitted).
2. Milton never expressly agreed to a greater waiver
of his right of privacy as a condition of having Gutierrez placed
in his custody. We express no opinion as to the validity of such
a waiver.
3. Our decision addresses only Milton's right to seek
suppression. We do not suggest that a probationer would have
standing to object to an invasion of the householder's privacy.
4. Milton contends that if the search of his suitcase
was illegal, then his later arrest was illegal and the cocaine
that the correctional officer found during an inventory of his
personal property should be suppressed as a product of the
original illegal search. However, because Milton did not prevail
in the trial court on his claim that the search of the suitcase
was illegal, the trial court has never directly decided what
evidence should be suppressed as a result of the search of the
suitcase in the event that the search of the suitcase is found to
have been illegal. See Cruse v. State, 584 P.2d 1141, 1146
(Alaska 1978). We therefore do not decide this issue. In the
event the trial court determines on remand that the evidence
found in Milton's house should be suppressed, then the trial
court should decide whether the evidence which was seized at the
jail was a product of the illegally seized evidence.
