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State v. Boceski (8/23/2002) ap-1819
State v. Boceski (8/23/2002) ap-1819
NOTICE
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: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-
7894
Appellant, ) Trial
Court No. 2BA-S00-514 CR
)
v. ) O P I N I O
N
)
DUSAN BOCESKI, )
)
Appellee. )
[No. 1819 - August 23, 2002]
)
Appeal from the Superior Court, Second Judi
cial District, Barrow, Michael I. Jeffery,
Judge.
Appearances: Eric A. Johnson, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellant. Quinlan Steiner, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
North Slope Borough Sergeant Rayme Grubbs arrested
Dusan Boceski after he overheard Boceski sell cocaine to L. H.
The sale took place at L. H.'s residence in her arctic entryway.
Sergeant Grubbs, with L. H.'s permission but without Boceski's
knowledge, listened to the drug transaction from just inside the
door of L. H.'s residence. Following his arrest, Boceski moved
to suppress the evidence seized and statements he made, arguing
that Sergeant Grubbs's surreptitious eavesdropping of the drug
transaction violated his right to privacy under the Alaska
Constitution. Superior Court Judge Michael I. Jeffery granted
the motion. After granting the motion to suppress, Judge Jeffery
granted Boceski's motion to dismiss the indictment. The state
appeals Judge Jeffery's ruling. We reverse.
Facts and proceedings
On October 12, 2001, L. H. contacted the North Slope
Borough Police Department about being a confidential informant
for the police department. L. H. told Sergeant Grubbs that
Boceski, a local drug dealer, sold cocaine throughout the
community. Sergeant Grubbs discussed the case with other officers
and devised a plan for L. H. to purchase drugs from Boceski at L.
H.'s residence. According to the plan, L. H. would contact
Boceski, have him come over, and sell her two grams of cocaine.
When Boceski arrived, L. H. would tell him she only had enough
money for one gram. Sergeant Grubbs would stand inside the
darkened living room, located next to the arctic entryway, "with
the door cracked open about an inch" and listen to the
conversation. After Boceski gave her the cocaine, L. H. would
say, "This doesn't look like a gram," and Sergeant Grubbs would
enter the room and arrest Boceski.
Sergeant Grubbs conducted a pat-down search of L. H.
before the buy and gave her $150.00 to purchase cocaine.
Sergeant Grubbs also placed a cassette recorder in the arctic
entryway and one in his shirt pocket. (Sergeant Grubbs had not
obtained a Glass warrant prior to recording the conversation.)
Before Sergeant Grubbs heard Boceski arrive, he went
into the living room and turned off the lights. He told L. H.'s
brother, who was also in the living room, to be quiet and not to
interrupt. Sergeant Grubbs did not use a sensory-enhancing
listening device to listen to the conversation, but he did start
the tape recorder. Sergeant Grubbs heard a knock on the door and
then heard Boceski's voice. According to Sergeant Grubbs, he
could hear little of what was said. He did, however, hear L. H.
say something about her parka and then say, "This doesn't look
like a gram." At that point, he entered the entryway, recognized
Boceski, and saw him throw money on the freezer. He also saw L.
H. throw a small clear plastic bag containing a white powdery
substance on to the freezer.
Sergeant Grubbs arrested and searched Boceski. During
the search, he found nine bindles of cocaine on Boceski. After
he was warned of his Miranda rights, Boceski made several
incriminating statements. Based on his observations, the
evidence seized from Boceski, and L. H.'s and Boceski's
statements, Sergeant Grubbs obtained a search warrant for
Boceski's residence. There he seized a small amount of cocaine
and various drug paraphernalia.
The state indicted Boceski on one count of misconduct
involving a controlled substance in the third degree1 for selling
cocaine. Boceski moved to suppress Sergeant Grubbs's
observations, the audiotape recording, and all of the evidence
seized following Boceski's arrest, including Boceski's Mirandized
statements.
Judge Jeffery found that under State v. Glass,2 Boceski
had a reasonable expectation that his conversation with L. H.
would not be recorded and thus that Sergeant Grubbs's failure to
obtain a Glass warrant prior to recording the conversation
between L. H. and Boceski violated Boceski's right to privacy
under the Alaska Constitution. The state does not dispute this
ruling.
However, Judge Jeffery also ruled that Sergeant Grubbs
violated Boceski's right to privacy by evesdropping on Boceski's
conversation with L. H. Judge Jeffery therefore suppressed
Sergeant Grubbs's observations in the entryway and also
prohibited Sergeant Grubbs from testifying about the
conversation. He further ruled that the evidence obtained from
Boceski during his arrest and during the search of his residence
was illegal fruit of Sergeant Grubbs's unlawful eavesdropping and
suppressed the evidence. Although Judge Jeffery acknowledged
that L. H.'s testimony about the transaction was admissible, he
ruled that the inadmissible evidence appreciably affected the
grand jury's indictment and granted Boceski's motion to dismiss.
This appeal followed.
Boceski had no reasonable expectation of
privacy in a conversation overheard by an
officer who was lawfully present in the
adjacent room
The two-prong test discussed in State v. Glass3 defines
the scope of Alaska's right to be free from unreasonable
governmental intrusion.4 To establish an unwarranted invasion of
individual privacy under the Alaska Constitution, a person must
first show that he or she exhibited an actual (subjective)
expectation of privacy in the activity being monitored by the
government.5 This is a question of fact.6 Second, a person must
show that his or her expectation of privacy is one that society
is willing to recognize as reasonable.7 This is a question of
law.8
Judge Jeffery found that Boceski exhibited an actual
expectation of privacy. This finding is supported by the record
and is not clearly erroneous. However, this court independently
decides whether Boceski's expectation of privacy from
eavesdropping was reasonable.9
Judge Jeffery relied heavily on State v. Glass to reach
his conclusion to suppress the evidence seized from Boceski. In
Glass, the Alaska Supreme Court held that "one who engages in a
private conversation is . . . entitled to assume that his words
will not be broadcast or recorded absent his consent or a
warrant."10 Glass involved an informant who wore a radio
transmitting device intended to record the conversation of the
defendant and the informant during a drug purchase.11 In holding
that the police must first obtain a warrant before
surreptitiously recording private conversations between
informants and defendants, the court pointed out it was the
electronic monitoring or recording that offended the notions of
privacy in Alaska, not eavesdropping.12 The court found that
when a person engages in a private conversation with another, the
speaker understands that his words may be repeated by the
listener, but he does not foresee that his words will be
simultaneously recorded or broadcast without his prior consent or
a warrant.13 To hold otherwise, according to the court, would
result in a dramatic chilling effect on speech.14 This
court discussed the Glass rationale in State v. Page.15 This
court noted that the underlying concern of Glass was not only the
possible effects surreptitious recording has on speech, but also
on society's concern that the government may monitor or record a
private citizen's words or conduct by technological assistance
without his or her knowledge.16 In Page, the police hid a video
camera in the apartment of an informant and recorded the drug
transaction without the defendant's knowledge.17 The police only
videotaped the interaction between the informant and the
defendant; they made sure not to record the audio portion of the
conversation.18 This court held that if a person engages in a
private conversation and the person has a reasonable right to
visual privacy, Alaska's right to privacy requires "the police .
. . [to] secure a warrant before surreptitiously videotaping the
conversation, even if they turn the sound off."19
Courts have generally concluded that if officers
overhear conversations from places where they have a right to be;
use only their unaided, natural senses; and are in a place where
the speaker would anticipate someone might be, then the speaker
has a diminished expectation of privacy that is not protected by
the Fourth Amendment.20 Professor LaFave notes, "At least when
the officer only employs his natural senses, the prevailing rule
is that such uses of the senses `made from a place where a police
officer has a right to be do not amount to a search in the
constitutional sense.'"21
Boceski has stated no compelling reason why we should
depart from this general rule in applying the Alaska
Constitution. Moreover, we are aware of only one jurisdiction,
Massachusetts, that requires officers to secure a warrant before
surreptitiously recording an informant's conversation with a
defendant; yet even Massachusetts has held that a person does not
have a reasonable expectation of privacy when an officer
overhears a conversation, using only his natural senses, from a
place were he has a lawful right to be.22
It is uncontested that Sergeant Grubbs was lawfully
present in L. H.'s home, and Judge Jeffery so found. L. H.
invited Sergeant Grubbs into her home and stood behind the door
with her permission. Although Boceski may have believed that his
conversation with L. H. was private, he ran the risk that someone
might be present in L. H.'s living room and in a position to
overhear this conversation. In fact, L. H.'s brother was in the
living room with Sergeant Grubbs when the drug transaction took
place. We hold that Boceski had no reasonable expectation of
privacy against eavesdropping by someone lawfully present in L.
H.'s home. Accordingly, Sergeant Grubbs's eavesdropping of
Boceski's conversation did not violate Boceski's constitutional
right to privacy. Judge Jeffery erred in suppressing any
evidence that Sergeant Grubbs obtained from overhearing Boceski's
conversation from behind the door.
The state contends that if we conclude that Judge
Jeffery erred in suppressing evidence based upon Sergeant
Grubbs's surreptitiously listening to Boceski's conversation with
L. H., we should remand the case to allow Judge Jeffery to
determine what evidence should be suppressed based upon the
illegal tape recording itself. The state also argues that we
should remand the case to Judge Jeffery to allow him to
redetermine whether suppression of the tape recording and its
fruits would require dismissal of the indictment. Boceski does
not oppose this position. We accordingly reverse Judge Jeffery's
order suppressing evidence based upon Sergeant Grubbs
surreptitiously overhearing the drug transaction. We remand the
case to allow the superior court to determine what evidence
should be suppressed based upon Sergeant Grubbs's illegal tape
recording of the drug transaction and to re-evaluate whether the
indictment should be dismissed.
REVERSED and REMANDED.
_______________________________
1 AS 11.71.030(a)(1).
2 583 P.2d 872 (Alaska 1978).
3 583 P.2d 872 (Alaska 1978) (adopting Justice Harlan's
concurrence in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct.
507, 516, 19 L.Ed.2d 576, 588 (1967)).
4 Id. at 875.
5 See id.; State v. Page, 911 P.2d 513, 515 (Alaska App.
1996).
6 See Page, 911 P.2d at 515.
7 See Glass, 583 P.2d at 875; Page, 911 P.2d at 515.
8 See Page, 911 P.2d at 515-16.
9 See id.
10 Glass, 583 P.2d at 875.
11 Id. at 874.
12 Id. at 877-78, 880.
13 Id. at 877.
14 Id.
15 911 P.2d 513 (Alaska App. 1996).
16 Id. at 516-17.
17 Id. at 515.
18 Id.
19 Id.
20 See e.g., United States v. Mankani, 738 F.2d 538, 542
(2nd Cir. 1984); United States v. Hessling, 845 F.2d 617, 619
(6th Cir. 1988); United States v. Agapito, 620 F.2d 324, 329-30
(2nd Cir. 1980); United States v. Jackson, 588 F.2d 1046, 1051-52
(5th Cir. 1979); United States v. Fisch, 474 F.2d 1071, 1077-79
(9th Cir. 1973); People v. Hart, 787 P.2d 186, 187-88 (Colo. App.
1989); State v. Benton, 536 A.2d 572, 575 (Conn. 1988)
("Conversations carried on in any type of residence . . . in a
tone audible to the unaided ear of a person located in a place
where that person has a right to be, and where a person can be
expected to be, are conversations knowingly exposed to the
public.").
21 1 Wayne R. LaFave, Search and Seizure 2.3(c), at 480
(3rd ed. 1996) (footnote and citation omitted).
22 See also Commonwealth v. Blood, 507 N.E.2d 1029, 1034
(Mass. 1987) (holding that warrantless electronic surveillance of
conversations with the consent of just one party violates the
right to be free from unreasonable searches and seizures under
the Massachusetts Constitution); Commonwealth v. Panetti, 547
N.E.2d 46, 47 (Mass. 1989) ("a person would have no justified
expectation of privacy in conversations that can be heard by the
unaided ear of an eavesdropper lawfully in a contiguous
apartment"); Commonwealth v. Dinnall, 314 N.E.2d 903, 904-05
(Mass. 1974).
