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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
HURIST JOUBERT, )
) Court of Appeals No. A-5741
Appellant, ) Trial Court No. 3AN-89-1153 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1487 - October 11, 1996]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Joan M. Woodward, Judge.
Appearances: Daniel L. Lowery, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Kenneth M.
Rosenstein, Assistant Attorney General, Office
of Special Prosecutions and Appeals, Anchorage,
and Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
In 1989, Hurist Joubert was convicted of first-degree
burglary and third-degree theft, and sentenced to prison. On April
5, 1994, Joubert was released on concurrent probation and parole.
Two months later, Joubert's probation officer searched Joubert's
house and discovered cocaine.
Joubert filed a motion to suppress the cocaine; he
contended that his probation officer had acted illegally when she
searched his house. The superior court denied Joubert's suppression
motion and ultimately revoked his probation. Joubert now appeals
the order of the superior court revoking his probation. He renews
his contention that the cocaine found at his house was the fruit of
an illegal search. We agree and we reverse.
On June 6, 1994, Probation Officer Kathleen Saporito
received a telephone call from a man who said he had information
concerning Joubert. The man reported that his daughter told him
that she had attempted to buy crack cocaine from Joubert at a
residence behind the Carrs grocery on Gambell Street in Anchorage.
The man said that he had gone to this residence and had observed a
black Chevrolet Blazer parked there. Saporito independently knew
that Joubert was driving a black Blazer. Based on the information
provided by this caller, Saporito contacted the Anchorage police and
arranged for officers to help her conduct a search of Joubert's
residence.
On June 8, five government officers went to Joubert's home
to search it: Saporito, two other probation officers, and two
Anchorage police officers. As the officers pulled up to Joubert's
residence, a vehicle was leaving the driveway. One of the other
probation officers thought that she recognized Joubert in the car,
but Saporito disagreed and the car was not stopped. Saporito and
two officers approached the house and knocked on the door.
Joubert's daughter, Hedjewahl Joubert, answered the door.
Saporito asked Hedjewahl if Joubert was there; Hedjewahl informed
her that he had just left. Saporito then identified herself as
Joubert's probation officer and asked if she could "have a look
around". Hedjewahl allowed Saporito and the other two officers to
enter the house; when Saporito inquired which room was Joubert's,
Hedjewahl directed Saporito to Joubert's room.
Shortly after Saporito entered the home, the two remaining
officers knocked on the door. Saporito answered the door herself
and, without seeking Hedjewahl's permission, allowed the two other
officers to enter the house. Hedjewahl was directed to sit on the
couch. Saporito would not allow her to leave the house, and
Saporito stood next to Hedjewahl as she called to postpone a
scheduled hair appointment. When the telephone rang while the
officers were searching the house, Saporito told Hedjewahl not to
answer it.
Although Saporito had obtained entry to the house by
telling Hedjewahl that she wanted to "have a look around" (osten-
sibly to verify that Joubert was not present), Saporito and the
other officers quickly commenced a search of the house. According
to Hedjewahl's affidavit filed in support of Joubert's suppression
motion, the officers began going through cupboards and drawers in
the kitchen, they searched Joubert's room and other parts of the
house, and, in general, they "carefully search[ed] the whole place".
One of the officers began questioning Hedjewahl in front of her
children concerning her knowledge of Joubert's alleged drug use and
drug dealing.
In Joubert's room, the officers discovered a set of scales
and a vial underneath a shirt on the bed. The scales and the vial
both tested positive for trace amounts of cocaine.
During the search, Joubert telephoned the residence.
Hedjewahl answered the phone and, acting on instructions from
Saporito, told Joubert to return home. Officer Saporito then took
the phone from Hedjewahl and ordered Joubert to return to the
residence. Joubert returned to the residence ten to fifteen minutes
later, and he was immediately placed under arrest.
As the legal authority for the probation officer's search
of Joubert's residence, the State relies on Condition 12 of
Joubert's probation:
Upon the request of a probation officer,
submit to a search of your person, personal
property, residence[,] or any vehicle in which
you may be found for the presence of contraband.
(EN1)
This condition of probation ostensibly imposes an obligation on the
probationer to "submit to a search of [his] ... residence" "upon
request of a probation officer". Because Condition 12 speaks of the
probationer's duty to "submit" to a probation officer's "request"
to search, Joubert argues that any search conducted under authority
of this provision must be preceded by a request directed to the
probationer. The State argues, however, that even though Condition
12 appears to be worded in terms of the probationer's obligation,
its true intent is to confer authority on the probation officer þ
the authority to search the probationer's residence at will,
regardless of whether the search is prefaced by a request, and
regardless even of whether the probationer is aware of the search.
One might reasonably argue that the purposes of probation
would be better advanced if Condition 12 were interpreted as the
State suggests þ to allow probation officers to conduct unrestrict-
ed, unannounced searches of a probationer's residence. However,
other societal interests support Joubert's interpretation of
Condition 12. As the supreme court recognized in Roman v. State,
570 P.2d 1235 (Alaska 1977), there is a price to be paid for
adopting a rule that probationers and parolees give up all of their
Fourth Amendment rights simply because they are on probation or
parole:
Fourth amendment protection will be diminished
not only for parolees, but also for the family
and friends with whom the parolee might be
living. Those bystanders may find themselves
subject to warrantless searches only because
they are good enough to shelter the parolee,
and they may therefore be less willing to help
him þ a sadly ironic result in a system de-
signed to encourage reintegration into society.
Roman, 570 P.2d at 1243 (quoting Note, "Striking the Balance Between
Privacy and Supervision: The Fourth Amendment and Parole and
Probation Officer Searches of Parolees and Probationers", 51 N.Y.U.
L. Rev. 800, 816 (1976)).
The events of Joubert's case are a concrete example of
what the supreme court was worried about in Roman. Joubert's
probation officer, backed up by police officers, entered the house
when only Hedjewahl Joubert and her children were present.
Probation Officer Saporito gained entrance by telling Hedjewahl that
she wanted to "have a look around"; but once inside, Saporito and
four other officers proceeded to search the entire house, including
cupboards and drawers. Moreover, the officers essentially placed
Hedjewahl and her children under arrest: Hedjewahl was told that
she could not leave the house, and at one point she was instructed
not to answer her ringing telephone.
Finally, we note that we do not have complete liberty to
construe Condition 12 as we think best. In Alaska, a defendant has
the choice whether to accept the sentencing court's offered condi-
tions of probation or to refuse and serve the suspended prison term
instead. Brown v. State, 559 P.2d 107, 111 n.13 (Alaska 1977);
State v. Staael, 807 P.2d 513, 516 (Alaska App. 1991). Thus, to a
certain extent, "the terms of probation might be likened to a
contract between the court and the defendant". McRae v. State, 909
P.2d 1079, 1083 (Alaska App. 1996). In construing Condition 12, we
must therefore examine how a reasonable person in Joubert's place
would have understood it, taking into consideration "the language
of the disputed provision ... and the case law interpreting similar
provisions". Peterson v. Wirum, 625 P.2d 866, 872 n.10 (Alaska
1981) (citing Wright v. Vickaryous, 598 P.2d 490, 497 (Alaska
1979)).
As noted before, the language of Condition 12 does not,
on its face, grant a probation officer the kind of open-ended
authorization to search that the State argues for. Instead,
Condition 12 is worded so as to impose an obligation upon Joubert
þ the obligation to submit to a search whenever requested by his
probation officer. Thus, the language of the disputed provision
appears to support Joubert's interpretation þ that the probation
officer's authority to search is premised on Joubert's receiving
notice of the intended search. Moreover, cases from other states
interpreting similar provisions also tend to support Joubert's
interpretation of Condition 12.
In State v. Hindman, 866 P.2d 481, 482 (Or. App. 1993),
the defendant was subject to a condition of probation requiring him
to "[s]ubmit to [a] [s]earch of person, vehicle, property and
residence upon request of [a] probation or police officer". The
Oregon court held:
The language of [this] probation condition
[specifically] requires that defendant submit
to searches upon request. We thus conclude
that defendant's probation condition was an
agreement to consent to a search and not a
prospective consent. If defendant was to
refuse to consent to a requested search, he
would be violating a condition of his proba-
tion. ... [T]he record [in the present case]
does not show ... that defendant's consent was
either asked for or given before the police
conducted the search. ... Accordingly, we
hold that the search was unlawful[.]
Hindman, 866 P.2d at 483 (emphasis in the original).
Similarly, in People v. Mason, 488 P.2d 630, 632 (Cal.
1971), cert. denied, 405 U.S. 1016 (1972), the defendant was subject
to the condition that he submit to a search "whenever requested to
do so". The California Supreme Court held that, under this
condition of probation, the defendant was entitled to advance notice
of the search. Id.
In State v. Davis, 891 P.2d 1373, 1375 (Or. App. 1995),
the defendant was subject to a condition of probation that did not
mention "request"; rather, the condition required the defendant to
"submit ... to reasonable search and seizure by the Probation
Officer without a warrant". Nevertheless, the court held that this
condition of probation:
does not constitute a self-executing, prospec
tive consent by the probationer to a general
warrantless search. Rather, it represents an
agreement by the probationer to submit to
reasonable searches by the probation officer.
... If the probationer refuses to submit to
such a search, then the officer has no author
ity, under the terms of the search condition,
to conduct a warrantless search. This refusal
may, however, violate the terms of the proba-
tion and could provide grounds for revocation
of the probation.
Davis, 891 P.2d at 1378 (emphasis in the original) (citations
omitted).
And in People v. Superior Court, 528 P.2d 41, 42 (Cal.
1974), the defendant's condition of probation required him to
"submit to a search of [his] residence ... upon request by [his
probation] agent". The California Supreme Court held that this
condition of probation did not authorize a search of the defendant's
residence in his absence and without his knowledge. Id. at 43.
See also State v. Wagner, 610 P.2d 301, 302-04 (Or. App.
1980), where the defendant was subject to the condition that "the
defendant's person, vehicle, and residence shall be subject to
search at any time by her probation officer or any police officer".
The court held that this condition of probation did not authorize
a search of the defendant's house after she had already been
arrested and removed from the residence. But see State v. Martinez,
811 P.2d 205, 209 (Utah App. 1991) (construing a similar condition
of probation, the court held that to require the defendant to be
present and to actively consent to the search would be inconsistent
with the basic purposes of probation).
Thus, both the language of Condition 12 and the judicial
interpretation given similar conditions of probation by the courts
of other states lend support to Joubert's argument that Condition
12 requires the probation officer to communicate in some way with
the probationer before conducting a search. The State fails to cite
any case law to support its interpretation of Condition 12 (that the
provision authorized Joubert's probation officer to search his
residence essentially at will, with no prior notice to Joubert and
without regard to whether Joubert was present).
We therefore conclude that Condition 12 required the
probation officer to notify Joubert before searching his house.
Thus, we agree with Joubert that the search conducted by the
probation officer in this case was not authorized by Joubert's
conditions of probation.
We do not reach the issue of whether Condition 12 means
that the probation officer, after notifying Joubert of her desire
to search, could conduct the search without obtaining Joubert's
consent or whether, instead, Joubert simply agreed that his
probation could be revoked if he refused consent. Also, because the
State has not argued the point, we do not reach the issue reserved
by the United States Supreme Court in Griffin v. Wisconsin, 483 U.S.
868, 880; 107 S.Ct. 3164, 3172; 97 L.Ed.2d 709 (1987): whether,
even in the absence of a specific condition of probation, a
probation officer may lawfully search a probationer's home when
there are reasonable grounds to believe contraband is present.
The State alternatively argues that even if Joubert's
conditions of probation did not authorize the search of his
residence, the evidence of the cocaine found in Joubert's house
should not be suppressed. The State relies on Sears v. State, 553
P.2d 907, 912-13 (Alaska 1976), in which the Alaska Supreme Court
held that the rule excluding illegally seized evidence would
normally not apply to probation revocation proceedings. However,
the supreme court declared that the exclusionary rule should still
apply when the contested search or seizure was "consciously
directed" toward a probationer. Id. at 914. The supreme court
reiterated this holding in Waring v. State, 670 P.2d 357, 361
(Alaska 1983):
In Elson [v. State, 659 P.2d 1195 (Alaska
1983),] and Sears, we noted that police gener
ally conduct searches and arrests for the
purpose of prosecuting and convicting an
individual, not to enhance the sentence or
revoke the [probation] of a defendant; there-
fore, the deterrent effect of excluding evi-
dence in sentencing and probation proceedings
would be minimal. Elson, 659 P.2d at 1203-04;
State v. Sears, 553 P.2d at 912. In both
cases, we concluded that this marginal deter-
rent value was outweighed by the needs of the
probation and sentencing systems. Elson, 659
P.2d at 1202; Sears, 553 P.2d at 913. Never-
theless, we recognized that under some circum
stances the deterrent effect of applying an
exclusionary rule in probation and sentencing
proceedings would be significant, e.g., if the
illegal searches and arrests were consciously
directed toward those proceedings.
In Joubert's case, the sole apparent purpose of the search
conducted by Probation Officer Saporito and the other officers was
to find evidence that Joubert had violated the conditions of his
probation. When traces of cocaine were found in Joubert's house,
the only action taken by the government was to file a petition to
revoke Joubert's probation. Thus, the search of Joubert's residence
appears to have been "consciously directed" toward uncovering
evidence for use in a probation revocation proceeding. Under Sears
and Waring, the exclusionary rule applies.
We therefore conclude that the superior court should have
granted Joubert's suppression motion. Accordingly, the judgement
of the superior court revoking Joubert's probation is REVERSED.
ENDNOTES:
1. Joubert's conditions of parole include a similar provision:
"Upon request by or at the direction of a parole officer at any
reasonable time, I will submit to a search of my person, my
personal property, my residence, my vehicle[,] or any vehicle
[over] which I have control, for the presence of [illegal drugs]."
Although the State proceeded against Joubert for violating his
probation, for these purposes the distinction between Joubert's
status as a probationer and his status as a parolee is immaterial.
Roman v. State, 570 P.2d 1235, 1237 n.3 (Alaska 1977).
