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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-9961 | |
| Petitioner, | ) Trial Court No. 3AN-05-08247 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| EZIAL AVERY, | ) |
| ) | |
| Respondent. | ) No. 2225 July 17, 2009 |
| ) | |
Petition for Review from the Superior Court,
Third Judicial District, Anchorage, Michael
L. Wolverton, Judge.
Appearances: Terisia K. Chleborad, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for the Petitioner. Glenda J. Kerry,
Assistant Public Advocate, and Rachel Levitt,
Public Advocate, Anchorage, for the
Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
COATS, Chief Judge.
In February and March of 2005, Ezial Avery was in jail
awaiting trial on charges that he kidnaped and sexually assaulted
his wife. At that time, Avery was subject to a court order which
prohibited him from contacting his wife. In spite of the court
order, Avery telephoned his wife from the jail on numerous
occasions and tried to persuade her to not testify against him in
front of the grand jury.
The Department of Corrections routinely records inmates
telephone calls. When the police learned that Avery had been
contacting his wife, they obtained a warrant that authorized them
to obtain and listen to the recordings of the telephone calls
Avery had made to his wife. Based on these telephone calls, a
grand jury indicted Avery on one count of first-degree tampering
with a witness (for inducing or attempting to induce a witness to
testify falsely or offer misleading testimony).1 Twelve counts
of unlawful contact in the first degree (for contacting V.Q. in
violation of the court order) were added by information.2
Avery moved to suppress the telephone recordings. He
argued that the State had violated his rights under the United
States and Alaska Constitutions when it recorded his telephone
conversations without a warrant. Superior Court Judge Michael L.
Wolverton granted Averys motion to suppress. The State
petitioned for review. We granted the States petition, and we
now reverse the superior courts ruling.
Factual and legal background
Alaska Statute 33.30.231(c) requires the Department of
Corrections to monitor the phone calls of prisoners in whatever
manner the Commissioner determines is appropriate:
[I]n order to preserve the security and
orderly administration of the correctional
facility and to protect the public, the
commissioner shall monitor or record the
telephone conversations of prisoners. ...
The monitoring or recording may be conducted
on all calls or selectively or in some other
limited manner as determined by the
commissioner to be appropriate.
(The statute specifically exempts telephone calls between an
attorney and a prisoner, as well as calls between the Office of
the Ombudsman and a prisoner.)3
As we have already noted, the Department of Corrections
routinely records inmates telephone calls (except those to an
attorney or the Ombudsman). Signs posted above the prisoner
telephones warn that telephone calls may be monitored and
recorded. In addition, each prisoner phone call is preceded by
an auditory warning that this phone call may be monitored and
recorded.
However, at the time the Department of Corrections
recorded Averys phone calls, there was a Department of
Corrections policy in effect, Policy 810.01, which declared that
calls of prisoners ... who have [not] been convicted of a crime
may only be monitored and recorded when authorized by court
order. This policy was adopted in 2002. Apparently, by 2005,
when Averys telephone calls were recorded, the Department was no
longer following this policy, but it had not been formally
rescinded.
The only witness to testify at the evidentiary hearing
on Averys suppression motion was the security sergeant from the
Anchorage jail. He testified that all prisoners telephone calls
(with the exception of calls to lawyers, members of the
Legislature, or the Ombudsman) were recorded for security
reasons. The sergeant stated that he had no knowledge of Policy
810.01. (Policy 810.01 was revised on May 22, 2007 to provide
that all calls may be monitored and recorded at any time.)
Judge Wolvertons ruling
In his decision, Judge Wolverton relied in part on
Policy 810.01 as the justification for suppressing Averys
telephone calls. Because Avery had not yet been convicted at the
time his calls were recorded, Judge Wolverton concluded that
Policy 810.01 prohibited the Department from recording Averys
calls. Judge Wolverton also stated that, because prisoners are
presumed to know the rules of the jail, Avery should be presumed
to be aware of Policy 810.01. Thus, the judge concluded that
Avery had [both] a subjective and objective expectation of
privacy in his phone calls at the Anchorage Correctional Center.
Moreover, Judge Wolverton concluded that the
warrantless recording of Averys telephone calls violated not only
Policy 810.01, but also [Averys] privacy rights under the Alaska
and United States Constitutions. He therefore granted Averys
motion to suppress.
Why we reverse Judge Wolvertons ruling
To prevail under the search and seizure clauses of the
United States and Alaska Constitutions, Avery must show (1) that
he had an actual subjective expectation of privacy, and (2) that
his expectation of privacy was one that our society is prepared
to recognize as reasonable. 4 Thus, even if we accepted Judge
Wolvertons conclusion that Avery had a subjective expectation of
privacy in his phone calls from jail, we would still have to
determine whether Averys expectation of privacy was one that our
society is prepared to recognize as reasonable.
Averys expectation of privacy in his phone calls from
jail would not be considered reasonable under the Fourth
Amendment to the United States Constitution. In Bell v.
Wolfish,5 the United States Supreme Court examined the
constitutional rights of pretrial detainees in the context of a
class action lawsuit. The prisoners in Wolfish had challenged
certain prison rules as violative of their First, Fourth, and
Fifth Amendment Rights: (1) a rule prohibiting inmates from
receiving books from anyone other than a book club or publisher;
(2) a rule prohibiting inmates from receiving packages containing
food and personal property; (3) a rule prohibiting inmates from
observing searches of their rooms; and (4) a rule requiring
prisoners to submit to body-cavity searches after every contact
visit.6 The Supreme Court concluded that all of these
regulations were reasonable.
The Supreme Court reaffirmed the principle that
prisoners do not forfeit all constitutional protections by reason
of their conviction and confinement in prison.7 But the Court
also emphasized that simply because prison inmates retain certain
constitutional rights does not mean that these rights are not
subject to restrictions and limitations.8 In other words, [a]
detainee simply does not possess the full range of freedoms of an
unincarcerated individual.9 The Court noted that the maintenance
of institutional order, discipline, and security are essential
goals in correctional facilities and concluded that even when an
institutional restriction infringes a specific constitutional
guarantee ... the practice must be evaluated in the light of the
central objective of prison administration, safeguarding
institutional security.10 Finally, the Court held that prison
administrators should be accorded wide-ranging deference in the
adoption and execution of policies and practices that in their
judgment are needed to preserve internal order and discipline and
to maintain institutional security.11
Applying these principles, the Supreme Court held in
Wolfish that even the highly invasive practice of body-cavity
searches did not violate the prisoners Fourth Amendment Rights
because the searches were not unreasonable under the
circumstances.12 The Court noted that the test of reasonableness
requires, in each case, a balancing of the need for the
particular search against the invasion of personal rights that
the search entails.13 Accordingly, [c]ourts must consider the
scope of the particular intrusion, the manner in which it is
conducted, the justification for initiating it, and the place in
which it is conducted.14 The Court, after [b]alancing the
significant and legitimate security interests of the institution
against the privacy interests of the inmates, concluded that the
body-cavity searches were reasonable.15
Several years later, in Hudson v. Palmer,16 the Supreme
Court stated:
[W]e hold that society is not prepared to
recognize as legitimate any subjective
expectation of privacy that a prisoner might
have in his prison cell and that,
accordingly, the Fourth Amendment
proscription against unreasonable searches
does not apply within the confines of the
prison cell. The recognition of privacy
rights for prisoners in their individual
cells simply cannot be reconciled with the
concept of incarceration and the needs and
objectives of penal institutions.
....
A right of privacy in traditional Fourth
Amendment terms is fundamentally incompatible
with the close and continual surveillance of
inmates and their cells required to ensure
institutional security and internal order.
We are satisfied that society would insist
that the prisoners expectation of privacy
always yield to what must be considered the
paramount interest in institutional
security.[17]
Based on these precedents, it seems clear that the United States
Supreme Court would uphold the monitoring and recording of
telephone calls at issue in this case. Moreover, lower federal
courts have consistently upheld the right of a penal institution
to record inmate telephone calls.18
Avery, however, also contends that the recording of his
telephone calls was unreasonable under the Alaska Constitution.19
The Alaska Constitutions search and seizure provision (article I,
section 14) is more protective than the Fourth Amendment to the
United States Constitution.20 But we doubt that the Alaska
Supreme Court would find that Avery had a reasonable expectation
of privacy in his telephone calls from jail.
As we explained earlier, AS 33.30.231(c) authorizes the
monitoring of prisoners telephone calls to preserve the security
and orderly administration of the correctional facility and to
protect the public. In Larson v. Cooper,21 our supreme court
declared that [p]rison security is a compelling governmental
interest, and thus limitations on prisoners freedoms would
generally be upheld if they were rationally related to this
interest.22
We conclude that the monitoring of prisoners telephone
calls is rationally related to the goal of prison security. The
witness at Averys evidentiary hearing (the security sergeant at
the Anchorage jail) testified that this monitoring is conducted
to ensure that prisoners do not make plans to escape, or smuggle
drugs or weapons into the facility, or threaten or harass
witnesses. Thus, the monitoring authorized by AS 33.30.230(c),
with its codified exceptions for telephone calls to attorneys and
government officials, is at least presumptively constitutional.
Moreover, in City & Borough of Juneau v. Quinto,23 the
Alaska Supreme Court held that when a person is aware, or
reasonably should be aware, that he or she is speaking to a
police officer who is in the process of executing either a lawful
arrest or a lawful investigative stop, society is not prepared to
recognize as reasonable an expectation that the conversation will
not be surreptitiously recorded.24 In the present case, Avery
was not speaking directly to law enforcement or corrections
officials, but the circumstances clearly placed him on notice
that his telephone conversations were not private. As we
explained earlier, signs were posted above the prisoner
telephones, warning inmates that their telephone calls may be
monitored and recorded. In addition, every call at issue in
Averys case was preceded by the auditory warning that this phone
call may be monitored and recorded.
For these reasons, we reject the superior courts
conclusion that the warrantless recording of Averys telephone
calls violated Averys rights under the Fourth Amendment to the
United States Constitution or under article I, section 14 of the
Alaska Constitution. The recording of Averys phone calls is
consistent with these constitutional provisions. Moreover, the
monitoring was authorized by AS 33.30.230(c).
Therefore, if the recording of Averys telephone calls
was illegal, it was illegal only because it violated Department
of Corrections Policy 810.01. The remaining question is thus
whether the exclusionary rule should be applied to violations of
an executive agencys written policies.
In Berumen v. State,25 we set out factors to consider
in determining whether to apply the exclusionary rule in cases
where a government officer violated a statute.26 These factors
are: (1) whether the statutory requirement ... restriction [was]
clear and widely known; (2) whether the statute was primarily
enacted to protect the rights of individual citizens rather than
to generally benefit society; (3) whether admission of the
evidence would make courts accomplices to the willful
disobedience of the law; and (4) whether the police have engaged
in widespread or repeated violations of the statute.27
In the present case, as we have pointed out, there was
no violation of a statute. Rather, Alaska statutory law
expressly authorizes the recording of all inmates telephone
calls. Averys claim does not rest on any violation of this
statute, but rather on a violation of a related provision of the
Department of Correctionss procedural manual, Policy 810.01.
Further, the testimony at the evidentiary hearing in
Averys case supports the conclusion that Policy 810.01 was not
clear and widely known. The only witness who testified at that
hearing, the security sergeant at the Anchorage jail, stated that
he was not aware of this written policy, and that the Departments
actual practice was to record all inmates phone calls. It thus
appears that, if the Department engaged in misconduct, it was in
failing to amend Policy 810.01 to conform to the Departments
actual practices.
Under these circumstances, we conclude that the
violation of Department of Corrections Policy 810.01 does not
justify the application of the exclusionary rule. For this
reason, the superior court erred when it granted Averys
suppression motion.
Conclusion
The order of the superior court granting Averys motion
to suppress is REVERSED, and this case is remanded to the
superior court for further proceedings on the indictment. We do
not retain jurisdiction of this matter.
_______________________________
1 AS 11.56.540(a)(1).
2 AS 11.56.750.
3 AS 33.30.231(c) (A recording of a telephone call made
under this subsection shall be kept confidential, and access to
the recording and its contents is limited to persons who are
acting within the scope of their official duties and whose access
to specific recordings has been authorized by the facility
superintendent. A telephone call between an attorney and a
prisoner or between the office of the ombudsman and a prisoner
may not be monitored or recorded except when authorized by a
court.).
4 See Katz v. United States, 389 U.S. 347, 361, 88 S. Ct.
507, 516, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring) (My
understanding of the rule that has emerged from prior decisions
is that there is a twofold requirement, first that a person have
exhibited an actual (subjective) expectation of privacy and,
second, that the expectation be one that society is prepared to
recognize as reasonable. ); see also State v. Glass, 583 P.2d
872, 875 & n.9 (Alaska 1978) (applying Justice Harlans
articulation of the rule in Katz under Alaska law); Smith v.
State, 510 P.2d 793, 797 (Alaska 1973) (same).
5 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979).
6 Id. at 530, 99 S. Ct. at 1859.
7 Id. at 545, 99 S. Ct. at 1877.
8 Id. at 545, 99 S. Ct. at 1877.
9 Id. at 546, 99 S. Ct. at 1878.
10 Id. at 547, 99 S. Ct. at 1878.
11 Id.
12 Id. at 558-60, 99 S. Ct. at 1884-85.
13 Id. at 559, 99 S. Ct. at 1884.
14 Id.
15 Id.
16 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984).
17 Id. at 526, 104 S. Ct. at 3200.
18 See, e.g., United States v. Amen, 831 F.2d 373, 379-80
(2d Cir. 1987) ([P]rison inmates have no reasonable expectation
of privacy. In the prison context the reasonableness of a search
is directly related to legitimate concerns for institutional
security. If security concerns can justify strip and body-cavity
searches, and wholly random cell searches, then surely it is
reasonable to monitor prisoners telephone conversations,
particularly where they are told that the conversations are being
monitored. (citations omitted)); United States v. Gangi, 57 Fed.
Appx. 809, 815 (10th Cir. 2003) (We agree with the Ninth Circuit
that any expectation of privacy in outbound calls from prison is
not objectively reasonable and that the Fourth Amendment is
therefore not triggered by the routine taping of such calls.
(quoting United States v. Van Poyck, 77 F.3d 285, 291 (9th Cir.
1996))).
19 See article I, section 14 & article I, section 22.
20 Woods & Rohde, Inc. v. State, Dept of Labor, 565 P.2d
138, 150 (Alaska 1977).
21 90 P.3d 125 (Alaska 2004).
22 Id. at 129.
23 684 P.2d 127 (Alaska 1984).
24 Id. at 129.
25 182 P.3d 635 (Alaska App. 2008).
26 Id. at 641.
27 Id. (quoting Harker v. State, 637 P.2d 716, 719 (Alaska
App. 1981), modified by 663 P.2d 932, 934-35 (Alaska 1983)).
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