Roman v. State

• Decision Date: 10 November 1977
• Docket Number: No. 2856,2856
• Citation: 570 P.2d 1235
• Parties: Robert L. ROMAN, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 1235

570 P.2d 1235

Robert L. ROMAN, Appellant, v. STATE of Alaska, Appellee.

No. 2856.

Supreme Court of Alaska.

Nov. 10, 1977.

Rita T. Allee, Jermain, Horton & Bittner, Fairbanks, for appellant.

Timothy J. Petumenos, Asst. Dist. Atty., and Harry L. Davis, Dist. Atty., Fairbanks, Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, BURKE and MATTHEWS, JJ.

OPINION

BOOCHEVER, Chief Justice.

In this appeal, we are asked to decide the nature and extent of rights afforded a parolee under the provisions of the fourth amendment to the United States Constitution ¹ and the parallel provision of the Alaska Constitution ² which prohibit unreasonable searches and seizures. In this matter of first impression in Alaska, we hold that, except in circumstances where reasonably conducted searches and seizures are required by the legitimate demands of correctional authorities and are set forth as conditions of parole by the Parole Board, the Alaska Constitution entitles a released offender ³ to the same protections as an ordinary person.

On November 7, 1975, Robert Roman, on parole for possession of heroin, appeared at a parole revocation hearing initiated by his parole officer, Ronald Murray. The Parole Board continued Mr. Roman on parole status. As a result of the proceeding, however, Mr. Murray drafted a list of supplemental conditions of parole. Among the supplemental conditions was the following:

2. Submit your person, vehicle and dwelling to search for contraband on demand by any parole officer or peace officer.

Murray and Roman had initially determined that the supplemental conditions would be signed on November 10; but due to scheduling difficulties, it was agreed that the conditions would be sent to Roman at a work camp on the Trans-Alaska Pipeline for his signature. ⁴

On November 11, 1975, Murray received information from Richard Wisenor, a federal narcotics agent, that Roman had used heroin on the previous evening. ⁵ Accompanied by Allen, of the Division of Corrections, Murray proceeded to the Fairbanks International Airport for the purpose of obtaining a urine sample from Roman prior to his departure to his work camp on the pipeline. Authority to obtain a urine specimen was set forth as an original condition of Roman's parole. Murray also sought to secure Roman's signature to the supplemental conditions of parole personally in the presence of witnesses and, in view of the information concerning Roman's use of heroin, considered conducting a search of the person.

At the airport, Murray and Allen were joined by an airport security officer whom they had contacted and provided information concerning the purpose of their trip. The three men followed Roman to the men's room where Roman, upon request, signed the supplemental conditions of parole. Roman was asked to provide a urine sample, but he indicated that he was physically unable to do so.

Shortly thereafter, the group proceeded to the check-in desk so that Roman would be able to board his plane. They were there joined by Agent Wisenor and by Mr. Roman's father. It was then determined that it was too late for Roman to board his flight; and Murray decided that, in view of the circumstances, he would conduct a search of Roman's person and belongings. His grounds for the search were: (1) the tip to agent Wisenor by an unidentified informant that Roman had recently used heroin; (2) the fact that Roman had been unwilling or unable to provide a urine sample and (3) the fact that Roman was departing for a remote location and, if using narcotics, would be likely to have them with him.

The search of Roman's person was initiated at the customs area of the airport by Murray. Allen, Wisenor and the airport security officer were also present; but Murray had not requested either Wisenor or the security officer to accompany him. Initially, Roman cooperated with the search by emptying the pockets of his parka on the table. Later, when Murray noticed a clear packet containing a white substance in Roman's belt area, Roman attempted to resist. Ultimately, the packet was seized and was found to contain heroin.

At trial for possession of narcotic drugs (AS 17.10.010), Roman moved to suppress the heroin and other items subsequently seized from his person and luggage. The trial court concluded that a warrantless search of a parolee is not unconstitutional if the parole officer has reasonable grounds to believe that a parole violation is presently occurring. It found adequate grounds to support the search in this case and, accordingly, denied Roman's motion. Roman was found guilty as charged in the indictment and was sentenced to ten years with five years suspended. We affirm.

On appeal, Mr. Roman raises two issues. First, he contends that parolees have the same protections against unreasonable searches and seizures as ordinary persons and that the illegally-seized evidence should have been suppressed. Second, challenging his sentence, he claims that the sentence for the crime of illegal possession of narcotics for personal use by a narcotics addict must include an option for treatment of addiction.

SEARCH AND SEIZURE

As we have noted in Davenport v. State, 568 P.2d 939, Opn. No. 1479 (Alaska, 1977), the United States Supreme Court decision in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), introduced a new judicial concept regarding the constitutional status of parolees and probationers. Prior to that decision, the prevailing view derived from a theory of "constructive custody." Under this theory, the released offender was regarded as constitutionally entitled to no more rights than he would have enjoyed if incarcerated. ⁶ While the Court in Morrissey did not extend the "full panoply of rights" under the fourteenth amendment to the parolee or probationer, it did recognize that:

The liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime. The parolee has been released from prison based on an evaluation that he shows reasonable promise of being able to return to society and function as a responsible, self-reliant person. Subject to the conditions of his parole, he can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison. He may have been on parole for a number of years and may be living a relatively normal life at the time he is faced with revocation. The parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions. 408 U.S. at 482, 92 S.Ct. at 2600, 33 L.Ed.2d at 494-95. (footnotes omitted)

Thus, the Court implicitly rejected the custody rationale. ⁷

For the most part, the decisions of this court regarding the rights of released offenders have utilized the approach of the Supreme Court and balanced the "precise nature of the governmental interest involved" against the "private interest that has been effected by governmental action." ⁸ In Bush v. Reid, 516 P.2d 1215 (Alaska 1973), we held that a parolee was entitled to bring a civil suit in the Alaska courts. We began our analysis with the proposition that:

Any suggestion that a parolee was deprived by his custodial status of standing to assert a denial of due process was dissolved by the United States Supreme Court in Morrissey v. Brewer. 516 P.2d at 1217.

Finding a due process deprivation, we cited Morrissey and reasoned:

The finding of a deprivation of a property right does not conclude a due process analysis; the assessment of what process is due requires a balancing of the individual's interest against the state's justification for its enactment. Denial of incarcerated felons' access to the civil judicial process has been justified by fears of disruption of prison routine, spurious litigation commenced in the hope of spending a few hours beyond the bars of prison and increased risks of escape by prisoners en route to hearings. Where the litigant is a parolee, to state these arguments is to reveal their absurdity. . . . 516 P.2d at 1220. (footnotes omitted)

Subsequently, in State v. Sears, 553 P.2d 907 (Alaska 1976), we were confronted with the question of whether the federal exclusionary rule and our similar Criminal Rule 26(g) precluded the use of illegally-obtained evidence in a parole or probation revocation hearing. Our conclusion that ordinarily ⁹ both rules were inapplicable to such a proceeding was based, in part, on the rationale that the governmental interests involved outweighed any marginal deterrent effects which would flow from application of the exclusionary rule. Quoting United States v. Winsett, 518 F.2d 51, 54-55 (9th Cir. 1975), we stated:

As articulated by the Ninth Circuit, the primary purpose of probation is ". . . to promote the rehabilitation of the criminal by allowing him to integrate into society as a constructive individual, without being confined for the term of the sentence imposed. Cf. Morrissey v. Brewer, 408 U.S. 471, 477, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). . . . Because violation of probation conditions may indicate that the probationer is not ready or is incapable of rehabilitation by integration into society, it is extremely important that all reliable evidence shedding light on the probationer's conduct be available during probation revocation proceedings." (footnote omitted) (emphasis in original) 553 P.2d at 912-13.

The Sears opinion recognized that the federal and state exclusionary rules would bar the use of illegally-obtained evidence in a new criminal proceeding as contrasted with a parole or probation revocation hearing. Since the illegality of the seizure was not there contested, the question of the scope of protection against...