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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
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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
| JOSHUA D. LAMBERT, | ) |
| ) Court of Appeals No. A-9665 | |
| Appellant, | ) Trial Court No. 3KO-05-706 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) [No. 2133 - December 21, 2007] |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Kodiak, Joel H. Bolger, Judge.
Appearances: Suzanne Rapoza, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Timothy W. Terrell, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
In Roman v. State,1 the Alaska Supreme Court stated
that, to be valid, parole and probation conditions2 must be
reasonably related to the rehabilitation of the offender and the
protection of the public and must not be unduly restrictive of
liberty.3
Joshua D. Lambert contends that the superior court
erred in imposing three special conditions of probation that: (1)
require he obtain a substance abuse evaluation;4 (2) prohibit him
from using or possessing alcohol or illegal controlled
substances, and require that he submit to testing for those
substances;5 and (3) require him to actively participate in and
successfully complete an approved substance abuse program if
recommended by the evaluation and directed to do so by his
probation officer.6 Lambert also objects to General Condition of
Probation No. 12, which requires Lambert to submit,
at the request of his
probation officer, to a search of his person, personal property,
residence or any vehicle in which [he] may be found for the
presence of contraband.7
We conclude that the three special conditions of
probation are valid under the Roman test. But we conclude that
General Condition of Probation No. 12 authorizing searches for
contraband is overly broad.
Factual and procedural background
On September 6, 2005, Kodiak Police Lieutenant Ray
Ellis was advised by radio dispatch that a 911 call had been
received regarding an assault in progress. Lieutenant Ellis
responded to the scene and contacted Danny Ingram. Ingram was
bleeding severely from his head. He told Lieutenant Ellis that
he had been assaulted by two males who struck him with rocks.
Lieutenant Ellis contacted five eyewitnesses to the assault who
described Lambert and Edward T. Taualo as the perpetrators. The
police apprehended Taualo a short distance from the assault.
Taualo later confessed that he met Lambert at a local bar where
he (Taualo) was drinking. According to Taualo, Lambert recruited
him at the bar to assault Ingram, claiming that Ingram sexually
assaulted Lamberts ex-girlfriend. Investigation by the police
revealed Ingram had not sexually assaulted Lamberts ex-
girlfriend, nor had he ever engaged in any sexual contact with
her.
Both Lambert and Taualo were charged with assault in
the first degree8 and attempted murder in the first degree.9 The
Grand Jury for the Third Judicial District at Kodiak indicted
Lambert and Taualo for assault in the first degree, but found not
a true bill for the charge of attempted murder in the first
degree.
On December 7, 2005, Superior Court Judge Joel H.
Bolger accepted Lamberts plea of no contest to the lesser offense
of assault in the third degree.10 On March 9, 2006, Judge Bolger
presided over Lamberts sentencing hearing. He sentenced Lambert
to 60 months of imprisonment with 30 months suspended, and he
imposed thirteen general conditions of probation and nine special
conditions of probation.
Following his sentencing, Lambert filed a motion in
which he sought to have the court remove four conditions of
probation (Special Conditions of Probation Nos. 7, 8, and 9;
General Condition of Probation No. 12). Lambert argued that
these conditions of probation violated the Alaska Supreme Courts
requirement from Roman that there be a direct relationship
between the probation condition and the crime for which the
probationer was convicted.11 Judge Bolger denied Lamberts
motion, concluding that the disputed conditions were necessary
both to further Lamberts rehabilitation and for the protection of
the public. Lambert appeals this decision.
Why we uphold Judge Bolgers refusal to modify
Lamberts special conditions of probation
In Roman, the court stated that a sentencing judge
should not require a parolee or probationer to submit to
warrantless searches unless there is a direct relationship of the
searches to the nature of the crime for which the parolee was
convicted.12 Less than two years after deciding Roman, in
Sprague v. State,13 the court invalidated a probation condition
that required the defendant to submit to searches for drugs when
his underlying conviction was for burglary.14 Although Sprague
admitted to a history of drug use and drug contacts,15 the court
struck the condition because it determined that upholding the
probation condition would, in effect, be opening up virtually all
classes of offenders to warrantless searches on less than
probable cause.16 The court did note, however, that a condition
of probation requiring Sprague to submit to searches for stolen
goods would be appropriate.17
This court has decided several cases interpreting
Roman. For example, in Allain v. State,18 Allain argued that a
probation condition that prohibited him from consuming alcoholic
beverages was not reasonably related to the goal of
rehabilitation because the misconduct in his current case was not
shown to have been alcohol related.19 We acknowledged that the
record disclose[d] no direct link between Allains drinking and
his current offense.20 But we upheld the probation condition
because our review of the record convinced us that the sentencing
judge could reasonably have concluded that Allains chances for
successfully addressing his problems with immaturity, anger, and
impulsiveness could be enhanced by eliminating the potential
distraction and complication that might be posed if Allain
developed an incipient problem with alcohol abuse.21
In Miyasato v. State,22 Miyasato asserted that a condition
of probation that required him to undergo sex offender therapy
was not reasonably related to his rehabilitation for second-
degree burglary.23 Miyasatos argument was premised on the fact
that his conviction was for a property offense, not a sexual
assault.24 We held that a condition of probation need not
directly relate to the offense for which the defendant stands
convicted,25 so long as it is reasonably related to the
rehabilitation of the offender and the protection of the public26
and not unduly restrictive of [the probationers] liberty.27
Miyasato had a past record of attempted first-degree sexual
assault, third-degree sexual assault, and first-degree criminal
trespass.28 Therefore, we found ample basis for [the superior
court judge] to conclude that sex offender treatment was
integrally related to Miyasatos rehabilitation and to the future
protection of the public.29
In State v. Thomas,30 Thomas was subjected to a
probation condition that required him to submit to warrantless
searches for controlled substances.31 When one such search
uncovered cocaine in Thomass wallet, he asserted the cocaine
should be suppressed. Thomas argued that the sentencing judge
lacked a proper basis for imposing such a probation condition
because Thomass prior convictions were for first-degree vehicle
theft and for driving while intoxicated after consuming alcohol
(not drugs).32 The superior court judge agreed with Thomas; the
judge struck the condition of probation and suppressed the
cocaine.33 We reversed, finding that Thomass history of drug
use made it reasonable for [the sentencing judge] to conclude
that a condition of probation allowing drug searches would
further both Thomass rehabilitation and the protection of the
public.34
Interpreting the supreme courts invalidation of the
similar condition in Sprague, we observed:
[T]he [supreme] court did not base its ruling
on the fact that the elements of burglary do
not require proof of drug possession or drug
use. Instead, the court employed a broader
test. The court declared that Spragues
condition of probation was invalid because
(1) Sprague was not convicted of a drug
offense, and (2) there was no showing that
Sprague was addicted to drugs, or that he had
committed the burglary in order to obtain
money to buy drugs. In other words, the
supreme courts explanation of its decision in
Sprague demonstrates that the reference in
Roman to the nature of the [defendants] crime
encompasses more than simply the elements of
that crime. Rather, the supreme court meant
to authorize conditions of probation that
addressed the causes of, or the motivations
for, the defendants criminal behavior. The
true test is the alternative formulation
contained in the Roman opinion itself: a
condition of probation must be reasonably
related to the rehabilitation of the offender
and the protection of the public[,] and must
not be unduly restrictive of [the offenders]
liberty.[35]
Therefore, so long as a condition of probation is reasonably
related to the defendants rehabilitation and is not unduly
restrictive, it meets the Roman requirement. We
turn now to Special Conditions 7, 8, and 9. Special Condition
No. 7 required Lambert to obtain a substance abuse evaluation
from an approved substance abuse provider within thirty (30) days
of his release from incarceration and make the results of the
evaluation available to his probation or parole officer. Special
Condition No. 8 required Lambert to not use or possess any
alcoholic beverages or illegal substances, including marijuana.
Special Condition No. 8 also required Lambert, if required by his
probation officer, to submit to testing for alcohol or controlled
substances. Special Condition No. 9 required Lambert to actively
participate in and successfully complete an approved substance
abuse program if such a program was recommended by a treatment
evaluation and directed by his probation or parole officer.
Special Condition No. 9 also stated that Lambert could not
discontinue treatment without prior written approval from his
probation or parole officer. Lambert was subject to serving up
to 30 days in a residential treatment program.
In his order denying Lamberts motion to modify the
conditions of probation, Judge Bolger found that Lambert had a
history of substance abuse and that the facts of his current
offense supported the conditions of probation. Judge Bolger
pointed out that Lambert had three prior felony convictions,
including a conviction in 2002 for possession of methamphetamine.
He also noted that in 2003, Lambert was convicted for driving
under the influence of alcohol and his conditions of probation
included alcohol screening. And in the present case, Lambert
recruited his codefendant in a bar. Judge Bolger concluded that:
Lamberts history of criminal
convictions establishes that he has
serious and unresolved problems
with substance abuse. And the
bizarre facts of the present
offense suggest that alcohol also
played a role in this assault. The
disputed conditions are therefore
necessary both to further Lamberts
rehabilitation and for the
protection of the public.
We conclude that Judge Bolgers case-specific findings
support the special conditions of probation under the Roman test.
Why we conclude that Judge Bolgers findings
do not support the condition of probation
authorizing broad searches for contraband
General Condition of Probation No. 12, which appears to
be a standard condition of probation that may appear in many
judgments, requires Lambert to submit to a search of [his]
person, personal property, residence or any vehicle in which [he]
may be found for the presence of contraband upon the request of a
probation officer.
General Condition No. 12 authorizes a search for any
type of contraband. Lambert argues, and the State essentially
concedes, that contraband could include stolen property[,] ...
weapons, burglar[y] tools, counterfeit mon[ey], photographs,
videotapes, illegally imported produce, eagle feathers[,] and
even illegal immigrants.
In Marunich v. State,36 we stated that [u]nder Alaska
law, a sentencing court must expressly authorize, and must find a
case-specific basis for, any condition of probation that requires
the probationer to submit to warrantless searches for drugs,
weapons, or other items.37
We conclude that the trial court made case-specific
findings for imposing the special conditions of probation
directed at Lamberts alcohol and substance abuse. But the trial
court did not justify imposing the broad general condition of
probation authorizing searches for contraband other than
controlled substances. We direct the superior court to limit
General Condition No. 12 of probation to searches for alcohol or
controlled substances.
AFFIRMED in part, REVERSED in part, and REMANDED.
_______________________________
1 570 P.2d 1235 (Alaska 1977).
2 Id. at 1237 n.3 (no valid reason to further complicate the
law by distinguishing between probationers and parolees).
3 Id. at 1240.
4 Special Condition of Probation No. 7: The defendant shall
obtain a substance abuse evaluation from an approved substance
abuse provider within thirty (30) days of his release from
incarceration and make the results of the evaluation available to
his probation or parole officer.
5 Special Condition of Probation No. 8: The defendant shall
not use, possess, consume, ingest or have in any of [his] bodily
fluids any alcoholic beverages or illegal controlled substances,
including marijuana. The defendant is to submit to urine or
blood samples to test for use of controlled substances and/or
alcohol when required by the probation or parole officer.
6 Special Condition of Probation No. 9: The defendant shall
actively participate in and successfully complete an approved
substance abuse program if recommended by evaluation, which may
include a residential treatment program of up to thirty (30)
days, at the direction of the probation or parole officer. The
defendant shall not discontinue treatment without the prior
written approval of [his] probation or parole officer.
7 General Condition of Probation No. 12: 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.
8 AS 11.41.200(a)(1) and AS 11.16.110.
9 AS 11.41.100(a)(1)(A) and AS 11.31.100.
10 AS 11.41.220(a)(1)(B).
11 Roman, 570 P.2d at 1243.
12 Id. at 1242-43.
13 590 P.2d 410 (Alaska 1979).
14 Id. at 418.
15 Id. at 418 & n.26.
16 Id. at 418.
17 Id.
18 810 P.2d 1019 (Alaska App. 1991).
19 Id. at 1022.
20 Id.
21 Id.
22 892 P.2d 200 (Alaska App. 1995).
23 Id. at 200.
24 Id. at 201.
25 Id. at 201-02.
26 Id. at 201 (quoting Roman, 570 P.2d at 1240).
27 Id. (quoting Roman, 570 P.2d at 1240).
28 Id. at 200.
29 Id. at 202.
30 133 P.3d 684 (Alaska App. 2005).
31 Id. at 684.
32 Id.
33 Id.
34 Id. at 686.
35 Id. at 685 (internal footnotes and citations omitted).
36 151 P.3d 510 (Alaska App. 2006).
37 Id. at 517 (citing Roman, 570 P.2d at 1243; Thomas, 133
P.3d at 685).
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