NOTICE: Formal errors in the text of this
opinion can be corrected before the opinion is published in the
Pacific Reporter. Readers are encouraged to bring typographical or
other formal errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: twhitman@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-6626
Petitioner, ) Trial Court Nos. 3PA-96-1806
) & 3PA-96-1807 Cr
v. )
)
ANN JAMES and ) O P I N I O N
GREGORY JAMES, )
)
Respondents. ) [No. 1602 - September 4, 1998]
______________________________)
Petition for Review from the Superior Court,
Third Judicial District, Palmer, Beverly W. Cutler, Judge.
Appearances: Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Petitioner. Cynthia L. Strout, Anchorage, for Respondent Gregory
James. Richard D. Kibby, Anchorage, for Respondent Ann James.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
In 1995, Gregory James was convicted of fourth-degree
misconduct involving a controlled substance, and he was placed on
probation. One of his conditions of probation stated that,
[u]pon the request of a probation officer,
[James must] submit to a search of [his] person, personal property,
residence[,] or any vehicle in which [he might] be found for the
presence of contraband.
The question presented in this appeal is whether, under this
provision, James's probation officer was authorized to conduct a
warrantless search of his residence even when James refused to
consent to the search. For the reasons explained here, we interpret
this provision as an authorization for warrantless searches of a
probationer's person and property, even when the probationer does
not consent to the search.
Facts of the case and the contentions of the parties
On April 1, 1996, Gregory James's probation officer,
Rebecca Brunger, came to his house; she was accompanied by another
probation officer, a police officer, a drug detection dog, and two
dog handlers. When James came to the threshold to greet Brunger,
she told him that she wished to conduct a "home visit" that is,
she wished to inspect James's house to make sure that James was
complying with his conditions of probation. James told Brunger that
he did not want her to visit his home at that time. In the
meantime, however, Brunger smelled the odor of growing marijuana
coming from within James's house.
James retreated into his house, and Brunger followed him.
Once inside, Brunger could smell the marijuana even more strongly,
and she observed a closet covered with black visqueen. She asked
James if he was cultivating marijuana, and James admitted that he
was. Although James repeatedly objected, Brunger and the police
officer searched James's house; they found marijuana both in the
visqueen-covered closet and in the basement. As a result, both
Gregory James and his wife, Ann, were indicted for fourth-degree
misconduct involving a controlled substance (essentially, growing
marijuana for commercial purposes). [Fn. 1]
The primary question presented in this appeal is how to
interpret the above-quoted condition of James's probation. The
State argues that this provision constituted a grant of authority
to James's probation officers: it authorized James's probation
officers to search his residence for contraband even if James
refused to consent to the search. The Jameses, on the other hand,
argue that this provision did not grant any authority to Gregory
James's probation officers; rather, the provision placed an
obligation on James to consent to any search for contraband
initiated by his probation officers.
According to the Jameses' interpretation of the provision,
Brunger had no greater right to search Gregory James or his
residence than she would to search the person or residence of any
other citizen. Thus, according to the Jameses, Brunger could not
search their house until she secured a search warrant (or showed
that the search was supported by a recognized exception to the
warrant requirement). The respondents concede that Gregory James's
condition of probation required him to consent to the requested
search. The respondents further concede that, if James had given
his consent, then Brunger could validly have conducted a warrantless
search of the house (because consent searches are a recognized
exception to the warrant requirement). But the respondents contend
that, even though Gregory James broke his condition of probation by
refusing to consent to the search, he did not thereby augment
Brunger's authority to conduct a warrantless search of the
residence. Rather, James's refusal to consent to the search meant
that he faced revocation of his probation for failure to abide by
the terms of probation.
In essence, the respondents argue that the superior court
could revoke James's probation because he refused to consent to
Brunger's search, but Brunger and the police officer who accompanied
her violated the search and seizure provisions of the federal and
state Constitutions when, having met with James's refusal, they
searched his residence without a warrant.
The meaning of James's condition of probation
In Soroka v. State [Fn. 2], the Alaska Supreme Court
recognized the common-law authority of a probation officer to search
a probationer's residence without a warrant, even when no specific
condition of probation authorized the search, so long as the
probation officer had probable cause to believe that the probationer
had violated the terms of probation. However, the supreme court
limited this common-law authority in Roman v. State [Fn. 3]. In
Roman, the court held that warrantless searches of probationers and
parolees would thenceforth be lawful only if the sentencing court
or the Parole Board had specifically authorized warrantless searches
in the conditions of the defendant's probation or parole. [Fn. 4]
In one respect, the authority to conduct warrantless
searches granted in Roman is considerably broader than the common-
law authority recognized in Soroka: under Soroka, a warrantless
search conducted without the benefit of a specific condition of
probation had to be supported by probable cause [Fn. 5]; but under
Roman, warrantless searches authorized by a condition of probation
or parole could be conducted "without the probable cause necessary
for [the] issuance of a search warrant". [Fn. 6] On the other hand,
Roman declared that sentencing courts and the Parole Board do not
have unlimited authority to impose warrantless-search conditions:
rather, such conditions will be allowed only when the record
establishes "a reasonable nexus" between the defendant's underlying
conduct and the decision of the court or the Board to allow
warrantless searches. [Fn. 7]
In the present appeal, the Jameses do not ask us to re-
examine Roman's central holding: that a sentencing court has the
power to authorize warrantless searches of a probationer's person
and residence. Nor do the respondents dispute that Gregory James's
underlying conduct (misconduct involving controlled substances)
provided the sentencing court with the necessary foundation or
"nexus" to justify the inclusion of a warrantless-search provision
among the conditions of James's probation. In sum, the respondents
do not challenge the sentencing court's legal authority to limit
Gregory James's search and seizure rights as a condition of his
probation. Rather, as explained above, the respondents question
whether the sentencing court actually imposed such a condition of
probation.
The disputed condition of probation directs Gregory James
to "submit to a search of [his] person, personal property,
residence[,] or any vehicle in which [he might] be found for the
presence of contraband" upon the request of a probation officer.
As we noted in Joubert v. State [Fn. 8], the language of this
provision appears to be worded so as to impose an obligation upon
the probationer rather than to grant authority to the probation
officer. [Fn. 9] However, when a court construes a legal document
such as the criminal judgement rendered against James (the
document that contains his conditions of probation) a court must
examine whether disputed words or phrases have acquired an accepted
meaning, either by statutory definition or through prior judicial
decision. [Fn. 10]
No Alaska decision has previously construed the legal
effect of a provision requiring a probationer or parolee to "submit"
to a search. But such phrasing is commonly employed by sentencing
courts and parole boards throughout the United States:
Among the conditions [of probation] more
commonly imposed is the requirement that in order to get probation,
the probationer must consent to warrantless searches of his person
and property. The precise terms of the condition vary widely among
the jurisdictions[, but the] most commonly used [phrasing] requires
the probationer to submit to warrantless searches at any time of the
day or night by any law enforcement officer.
Annotation: "Validity of [the] Requirement that, as a Condition of
Probation, [the] Defendant Submit to Warrantless Searches",
79 A.L.R.3d 1083, 1086 (1977).
The courts of Oregon have construed this "submit" language
in the manner now advocated by the Jameses. That is, the Oregon
courts have ruled that this language does not authorize probation
officers to search a probationer's person and property without a
warrant. Rather, this language means only that the probationer
promises to waive their Fourth Amendment rights in the future
(whenever they are asked to do so by a probation officer). If the
probationer later refuses to honor their promise (that is, if they
refuse to waive their Fourth Amendment rights when requested to do
so by a probation officer), then their probation can be revoked for
the breaking of the promise, but no warrantless search can be
conducted. [Fn. 11]
It appears, however, that Oregon stands alone in their
interpretation of the disputed language. Other courts, faced with
the interpretation of similar provisions (that is, provisions
requiring a probationer to "submit" to a search), have consistently
interpreted these provisions to authorize warrantless searches by
probation officers regardless of whether the probationer has
expressly consented to the search and even in the face of refusal
or resistance by the probationer. [Fn. 12] In fact, over twenty
years ago, the Ninth Circuit instructed sentencing judges to use
this very language when they wished to authorize warrantless
searches of a probationer's person and property. In United States
v. Consuelo-Gonz lez [Fn. 13], the Ninth Circuit ruled that
warrantless searches of probationers were constitutional, and the
court recommended that sentencing judges impose the following
condition of probation to authorize such searches:
That [the defendant] submit to search of
[his or] her person or property conducted in a reasonable manner and
at a reasonable time by a probation officer.
Consuelo-Gonz lez, 521 F.2d at 263.
Thus, even though the "submit" phrasing of Gregory James's
condition of probation might conceivably be read in the way he and
his wife suggest, we reject this interpretation because it is
inconsistent with established judicial usage. As shown by the
annotation and by the various court decisions cited here, when a
sentencing court orders a defendant to "submit" to warrantless
searches at the request of a probation officer, this language
expresses the concept that the court has authorized the probation
officer to conduct a warrantless search even if the probationer
refuses to consent at the time of the search.
The Jameses argue that this result is constitutionally
suspect because, if the challenged condition of probation is
interpreted this way, "probation searches could be conducted [at]
the mere whim of the [probation] officer". We recognize that a
probation officer's authority to conduct warrantless searches could
conceivably be misused to harass a probationer. But the present
case does not raise this problem.
It is undisputed that Officer Brunger came to the James
residence to conduct an initial visit with a newly-assigned
probationer. This was a reasonable exercise of her authority, and
it was sufficient justification for her entry into the residence
pursuant to Gregory James's condition of probation. (Were this not
enough, we note that Brunger had even more justification for the
search by the time she entered: for when she approached the door,
she could smell the odor of growing marijuana.) We therefore hold
that the probation officer's warrantless search of the Jameses'
residence was lawful because it was conducted pursuant to the
authority granted by the sentencing court in Gregory James's
conditions of probation.
Ann James asserts that, even though her husband was on
probation, she retained her right to object to searches of her home,
person, and possessions. This is only partially true.
[When a] probationer is sharing living quarters
with another person who is not subject to similar conditions, ...
the probation officer and the people working under [the officer's]
direction may search all parts of the premises that the probationer
has common authority to use.
Milton v. State, 879 P.2d 1031, 1034 (Alaska App. 1994).
In this case, there is no assertion that the probation
officer (or the police officer who assisted her) exceeded the proper
bounds of a probation search. That is, the Jameses do not contend
that evidence was seized from areas of the residence that were
exclusively under Ann James's control.
The decision of the superior court is REVERSED, and this
case is remanded for further proceedings on the indictments against
the two respondents.
FOOTNOTES
Footnote 1:
AS 11.71.040(a)(2), (a)(3)(G), and (a)(5).
Footnote 2:
598 P.2d 69, 71 (Alaska 1979).
Footnote 3:
570 P.2d 1235 (Alaska 1977); see also Soroka, 598 P.2d at 71
n.8 (recognizing that Roman governed this question of law in future
cases).
Footnote 4:
Roman, 570 P.2d at 1243-44.
Footnote 5:
598 P.2d at 71 & n.5.
Footnote 6:
Roman, 570 P.2d at 1244; see also Soroka, 598 P.2d at 71 n.5
(recognizing that, if the conditions of a defendant's probation
authorize searches on demand, "no showing of probable cause would
[be] necessary").
Footnote 7:
Roman, 570 P.2d at 1244; see also id. at 1242.
Footnote 8:
926 P.2d 1191 (Alaska App. 1996).
Footnote 9:
Id. at 1193.
Footnote 10:
See, e.g., Federal Power Comm'n v. Transcontinental Gas Pipe
Line Corp., 365 U.S. 1, 8; 81 S.Ct. 435, 439; 5 L.Ed.2d 377 (1961);
Alaska Federation for Community Self-Reliance v. Alaska Public
Utilities Comm'n, 879 P.2d 1015, 1019 n. 4 (Alaska 1994); South
Anchorage Concerned Coalition, Inc. v. Coffey, 862 P.2d 168, 173 n.
12 (Alaska 1993); W. R. Grasle Co. v. Alaska Workmen's Compensation
Bd., 517 P.2d 999, 1002 (Alaska 1974).
Footnote 11:
See State v. Davis, 891 P.2d 1373, 1378-79 (Or. App. 1995);
State v. Hindman, 866 P.2d 481, 482 (Or. App. 1993).
Footnote 12:
Owens v. Kelley, 681 F.2d 1362, 1366-68 (11th Cir. 1982);
People v. Kasinger, 129 Cal.Rptr. 483, 484 (Cal. App. 1976); People
v. Turner, 126 Cal.Rptr. 652, 653 (Cal. App. 1976); State v. Peters,
950 P.2d 1299, 1302 (Idaho App. 1997); People v. Hellenthal, 465
N.W.2d 329, 330 (Mich. App. 1990) (semble); State v. Benton, 695
N.E.2d 757, 762 (Ohio 1998); Himmage v. State, 496 P.2d 763, 765-66
(Nev. 1972); People v. Fortunato, 376 N.Y.S.2d 723, 726-27 (N.Y.
App. 1975); State v. Martinez, 811 P.2d 205, 209 (Utah App. 1991);
Anderson v. Commonwealth, 490 S.E.2d 274, 279 (Va. App. 1997).
Footnote 13:
521 F.2d 259 (9th Cir. 1975) (en banc).
