Notice: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
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THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL J. SAMSON, )
) Court of Appeals No. A-5847
Appellant, ) Trial Court No. 4FA-S92-3496 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1472 - June 14, 1996]
)
Appeal from the Superior Court, Fourth
Judicial District, Fairbanks, Ralph R.
Beistline, Judge.
Appearances: Dick L. Madson, Law Offices of
Dick L. Madson, Fairbanks, for Appellant.
Eric A. Johnson, 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.
MANNHEIMER, Judge, with whom BRYNER, Chief
Judge, joins, concurring.
In December of 1992, a grand jury indicted Michael J.
Samson on two counts of misconduct involving a controlled substance
in the fourth degree. AS 11.71.040(a)(3)(A),(F). Samson filed a
motion to suppress evidence which the police had obtained with two
search warrants. The first warrant authorized the police to obtain
the records of Golden Valley Electrical Association which showed
the history of electrical power consumption at Samson's residence.
The second warrant, which was based in part on the records of
Samson's electrical power consumption obtained with the first
warrant, authorized the police to search Samson's residence.
During the search of Samson's residence the police seized two large
marijuana plants and a small amount of psilocybin.
In his motion to suppress, Samson contended that the
state had not presented sufficient probable cause to justify the
magistrate's decision in issuing a warrant for the records of his
electrical power consumption. After Superior Court Judge Ralph R.
Beistline denied Samson's motion, Samson entered a no contest plea,
reserving his right to appeal the court's denial of his motion to
suppress under Cooksey v. State, 524 P.2d 1251 (Alaska 1974).
On appeal, this court concluded that the state had not
established probable cause to authorize the magistrate to issue a
warrant for the records of Samson's power consumption. Samson v.
State, Memorandum Opinion and Judgment No. 3007 (Alaska App.,
October 12, 1994). We determined, however, that this conclusion
was not dispositive:
However, we do not believe that this
conclusion necessarily means that Judge
Beistline erred in denying Samson's motion to
suppress. It is possible that the state did
not need a search warrant to obtain the power-
usage information. In State v. Chryst, 793
P.2d 538 (Alaska App. 1990), we stated:
In determining whether [a person's]
right to privacy was infringed we
apply a two-part test: first,
whether [the person] exhibited a
subjective expectation of privacy;
and second, whether society is pre-
pared to recognize that expectation
of privacy as reasonable.
Id. at 539-40 (citations omitted). We pointed
out that:
Different courts have arrived
at different conclusions concerning
what information is protected by a
constitutional right of privacy.
The federal position is set forth in
United States v. Miller, 425 U.S.
435, 440-43, 96 S.Ct. 1619, 1622-24,
48 L.Ed.2d 71 (1976). In that case
the United States Supreme Court held
that a bank customer had no
reasonable expectation of privacy
that society was prepared to
recognize in financial statements
which he had voluntarily turned over
to a bank[.]
Id. at 540. We pointed out that Professor
LaFave had strongly criticized the Miller
decision in his treatise. Wayne R. LaFave,
Search and Seizure,  2.7(c), at 511-17 (2d
ed. 1987). We also pointed out that "[t]he
states of Washington and California have
construed the provisions of their state
constitutions which, like Alaska, have a
specific provision guaranteeing a right to
privacy, to protect some information which
customers have given to the utility companies
for the purpose of obtaining services."
Chryst, 793 P.2d at 540. Under the particular
facts of Chryst, we held that an individual
did not have a reasonable expectation of
privacy in his name and address when police
had obtained that information from a public
utility.
The issue of whether Samson had a
reasonable expectation of privacy in his
power-usage records is an issue that was not
raised or considered in the trial court. In
the absence of any factual context for
determining whether Samson had a subjective
expectation of privacy in his utility records
or the reasonableness of that expectation, we
have no basis for resolving this issue on
appeal. We accordingly remand this case to
the trial court for further proceedings
consistent with this decision.
Id. at 6-7.
On remand, following an evidentiary hearing, Judge
Beistline first concluded that Samson had not shown that he had a
subjective expectation of privacy in the utility records. He found
that Golden Valley Electrical Association had a written policy
"that all information obtained by employees in the course of
employment, including records of usage, will not be supplied to a
third party without either the owner's permission or a court
order." However, he found that "no evidence was presented at the
hearing that Samson was aware of this policy or that he otherwise
harbored a subjective expectation of privacy." (EN1)
Judge Beistline also concluded that, even if he were to
assume that Samson had a subjective expectation of privacy, society
was not prepared to recognize that expectation of privacy as
reasonable. Judge Beistline relied on People v. Dunkin, 888 P.2d
305 (Colo. App. 1994), cert. denied, Smith v. Colorado, 115 S.Ct.
2251 (1995), and State v. Kluss, 867 P.2d 247 (Idaho App. 1993), in
reaching his decision. Although both of these courts concluded
that their state constitutions provided for greater privacy
protection than federal law, both courts held that society was not
prepared to recognize a reasonable expectation of privacy in
utility records. People v. Dunkin, 888 P.2d at 307-08; State v.
Kluss, 867 P.2d at 252-54. Judge Beistline specifically relied on
the following language from State v. Kluss:
In order to have electricity, Kluss was
obliged to obtain the same from [his utility
company.] Kluss did nothing to create the
records except consume power. The power
records in the case at bar reveal only the
amount of power usage. The power records were
maintained by [the utility company] in the
ordinary course of business. They do not
identify any activities of Kluss. On a
comparative basis they may demonstrate that
the power use at the Kluss home is greater or
lesser than similar houses or at similar times
or that the power use has increased or
decreased at different times. The information
does not provide any intimate details of
Kluss's life, identify his friends or
political and business associates, nor does it
provide or complete a "virtual current
biography." The power records, unlike
telephone or bank records, do not reveal
discrete information about Kluss's activities.
High power usage may be caused by any one of
numerous factors: hot tubs, arc welders, poor
insulation, ceramic or potter kilns, or indoor
gardening under artificial lights.
Id. at 254.
We also find the reasoning of Kluss and Dunkin
persuasive. Although we recognize that neither Colorado nor Idaho
have a privacy amendment to their constitution similar to Alaska's,
(EN2) both states have interpreted their constitutions to provide
more protection to the right to privacy than is provided under the
federal constitution. State v. Kluss, 867 P.2d at 252-53; People
v. Dunkin, 888 P.2d at 307. We are persuaded by the reasoning of
Kluss that utility records are maintained by the utility and do not
constitute information in which society is prepared to recognize a
reasonable expectation of privacy. We accordingly affirm Judge
Beistline's order denying Samson's motion to suppress.
AFFIRMED.
MANNHEIMER, Judge, with whom BRYNER, Chief Judge, joins, con-
curring.
This case raises the question of whether the customers of
an electric utility are protected by the warrant clauses of the
Fourth Amendment to the United States Constitution and Article I,
Section 14 of the Alaska Constitution when the government seeks
information from the utility's records regarding a customer's
amount of electricity usage. Like my colleagues, I conclude that
such records do not command the same privacy protection as bank
records. Bank records list the details of a customer's financial
dealings þ names of debtors, creditors, and most others with whom
the customer does business. On the other hand, electric utility
records of a customer's gross electricity usage reveal no details
of the activities that consumed the electricity. I therefore agree
that, at least for search and seizure purposes, Samson had no
protected privacy interest in the utility's records of his
electricity usage.
I am writing a separate concurrence because the facts of
Samson's case raise another legal issue þ the requirement of
standing to contest an illegal search or seizure. As I said in the
preceding paragraph, I agree that the police need not obtain a
warrant to inspect or copy utility records if the utility
voluntarily opens its records to the police. In Samson's case,
however, the electric company did not voluntarily open its records
to the police. Instead, the police obtained a warrant for Samson's
records and served this warrant on the company. In our first
opinion in this case, we ruled that this warrant was not supported
by adequate probable cause; thus, Samson's electricity records were
seized illegally. Samson v. State, Memorandum Opinion No. 3007
(Alaska App., October 12, 1994).
Because these records were compiled and kept by Golden
Valley Electric, and because the records were seized from the
electric company's premises, Golden Valley clearly would be
entitled to seek suppression of this evidence if the government
ever attempted to use these records in a criminal prosecution of
the electric company. But Samson is in a different legal position
because, normally, a person has no standing to seek suppression of
evidence belonging to and illegally seized from someone else.
Brown v. United States, 411 U.S. 223, 230; 93 S.Ct. 1565, 1570;
36 L.Ed.2d 208 (1973) ("Fourth Amendment rights are personal rights
which ... may not be vicariously asserted.") (quoting Alderman v.
United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176
(1969)). The records in this case did not belong to Samson, and
they were not seized from his possession; moreover, as we now hold,
Samson had no protected expectation of privacy in the contents of
those records. Thus, under traditional rules of standing, Samson
could not complain that the police relied on an invalid warrant to
obtain the records.
In Waring v. State, 670 P.2d 357 (Alaska 1983), the
Alaska Supreme Court augmented the scope of the traditional
standing rule: under Alaska law, a defendant has standing to seek
suppression of illegally seized property belonging to someone else
if the defendant shows that he or she was the target of the search
and seizure violation. However, to obtain this vicarious standing,
the defendant must show that the police purposely violated another
person's rights in order to obtain evidence which they intended to
use, not against this third person, but against the defendant.
Waring, 670 P.2d at 362-63.
The Waring rule does not apply to Samson's case because
the police did not purposely violate Golden Valley Electric's
rights. The police believed that they had a valid warrant for the
records. Thus, under either the traditional standing rule or even
the modified standing rule announced in Waring, Samson and other
customers like him do not have standing to contest the seizure of
the utility's records.
Moreover, in a criminal prosecution brought against one
or more of the utility's customers, the utility company would have
no standing to assert the violation of its own Fourth Amendment
rights (because the utility company would not be a party). See
Rakas v. Illinois, 439 U.S. 128, 132 n.2, 99 S.Ct. 421, 425 n.2, 58
L.Ed.2d 387 (1978) ("[A] person whose Fourth Amendment rights were
violated by a search or seizure, but who is not a defendant in a
criminal action in which the illegally seized evidence is sought to
be introduced, [has no] standing to invoke the exclusionary rule to
prevent use of that evidence in that action."); Wayne R. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment (3rd ed.
1996),  11.3, Vol. 5, p. 117.
Thus, under traditional standing rules, neither the
utility nor its customers have standing to protest the use of
illegally seized records that the government uses as evidence in a
criminal prosecution brought against a customer. This result could
conceivably lead to abuses: knowledge that no one will have
standing to oppose the fruits of illegal searches and seizures of
a utility's records may encourage the police to recklessly
disregard Fourth Amendment protections when dealing with utilities
and similar record-keeping businesses.
Waring provides some protection against such abuses:
under Waring, vicarious standing could be granted to a utility
customer in cases where the police had engaged in "gross or
shocking misconduct". 670 P.2d at 363. But in addition, if this
court were presented with evidence of repeated or flagrant Fourth
Amendment violations by the police when they searched utilities or
other businesses that compile similar records, then this court
would be obliged to re-examine the current limits of the standing
rule. With this caveat, I join in the court's decision. (EN1)
ENDNOTES:
1. After the evidentiary hearing, Samson filed an affidavit which
stated he was aware of the policy. Judge Beistline rejected the
affidavit as "unpersuasive."
2. Article 1, section 22, of the Alaska Constitution provides:
"The right of the people to privacy is recognized and shall not be
infringed. The legislature shall implement this section."
ENDNOTES (Concurrence):
1. In this regard, I note that this court has recently reviewed
two cases in which warrants were issued to search people's homes,
based in part on previously obtained electricity consumption
records. In each case, we found that the search warrant for the
defendant's home was issued without probable cause. See Lloyd v.
State, ___ P.2d ____, Opinion No. 1467 (Alaska App., April 19,
1996), and Carter v. State, 910 P.2d 619 (Alaska App. 1996).
In both Lloyd and Carter, the electricity records that
supported the search warrant applications were themselves seized
under prior warrants. We were not asked to rule on the validity of
those prior warrants. But if the warrants for Lloyd's and Carter's
homes were issued without probable cause, it would seem likely that
the previously obtained electricity records were also seized
without probable cause.
