State v. Glass

• Decision Date: 15 September 1978
• Docket Number: No. 3565,3565
• Citation: 583 P.2d 872
• Parties: STATE of Alaska, Petitioner, v. Theodore GLASS, Respondent.
• Court: Alaska Supreme Court

Page 872

583 P.2d 872

STATE of Alaska, Petitioner, v. Theodore GLASS, Respondent.

No. 3565.

Supreme Court of Alaska.

Sept. 15, 1978.

Richard J. Ray, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Avrum M. Gross, Atty. Gen., Juneau, for petitioner.

David C. Backstrom, Deputy Public Defender, Fairbanks, and Brian Shortell, Public Defender, Anchorage, for respondent.

Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, BURKE and MATTHEWS, Justices.

OPINION

BOOCHEVER, Chief Justice.

The sole issue presented by this petition for review is whether the superior court erred in granting a motion to suppress evidence obtained by electronic surveillance of the alleged narcotics transaction which gave rise to the respondent's indictment.

The facts, insofar as they are important to our decision of this issue, can be briefly stated. On April 26, 1977, members of the Fairbanks Areawide Narcotics Team, a police unit made up of state and local officers, fitted a police informant, Rondi Baker, with a small radio transmitting device. Baker was then transported to respondent Theodore Glass' home where she believed she could purchase heroin. Baker entered and, while on the premises, allegedly purchased a quantity of heroin from Glass. The conversation surrounding that transaction was electronically recorded by police officers stationed outside the home by monitoring the frequency of the transmitter worn by Baker. The monitoring and recording of that conversation was done without benefit of a search warrant or other order of the court.

As a result of these events, Glass was indicted on two counts possession of a narcotic drug and sale of a narcotic drug in violation of AS 17.10.010. Prior to his trial, he moved to suppress all evidence of the tape recording, alleging violation of his rights under the fourth amendment to the Constitution of the United States and art. I, sec. 14 of the Constitution of the State of Alaska, both of which prohibit unreasonable searches and seizures, and under art. I, sec. 22 of the Alaska Constitution, which guarantees Alaska's citizens the right to privacy. The superior court granted Glass' motion, stating in a written opinion:

No warrant was obtained by the State although the circumstances most certainly provided sufficient time for application therefor to have been presented to an impartial magistrate. The subject broadcasts from within the confines of the defendant's home were searches and were severe invasions into the privacy of the defendant. The Constitution of the State of Alaska mandates suppression of the tape recording of the transaction. The live testimony of the informant is still allowable.

This ruling is now before this court on the state's petition for review. ¹

The issue in this case is of substantially more significance than whether or not Theodore Glass committed the offense charged in the grand jury's indictment. It presents a question of major importance as to the scope of the right to privacy expressly set forth by an amendment to the Alaska Constitution: "The right of the people to privacy is recognized and shall not be infringed. . . ." ²

In its petition, the state relies primarily upon federal decisions dealing with the fourth amendment to the United States Constitution. ³ The authority is questionable and, in our view, not persuasive as to the construction of Alaska's analogous provision. ⁴ In any event, those authorities should not be regarded as determinative of the scope of Alaska's right to privacy amendment, since no such express right is contained in the United States Constitution. ⁵

Looking first to the federal cases cited by the state, we note that all except United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), pre-date the major change wrought by Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). At the trial of Katz, the government was permitted to introduce evidence of telephone conversations overheard by F.B.I. agents who had attached a listening and recording device to the outside of a public telephone booth from which Katz had placed his calls. Previously, fourth amendment cases had been considered from a property standpoint whether a trespass had been committed. In Katz, the court held that the "Fourth Amendment governs not only the seizure of tangible items, but extends as well as to the recording of oral statements," 389 U.S. at 353, 88 S.Ct. at 512, 19 L.Ed.2d at 583, independent of trespass considerations. The court indicated that the warrant requirement of the fourth amendment had no fixed locational limitations: "Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures." 389 U.S. at 359, 88 S.Ct. at 515, 19 L.Ed.2d at 586. The court stated that the fourth amendment "protects people, not places." 389 U.S. at 351, 88 S.Ct. at 511, 19 L.Ed.2d at 582. It thus was immaterial whether the phone booth was a "constitutionally protected" area. ⁶

One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. ⁷

We believe that one who engages in a private conversation is similarly entitled to assume that his words will not be broadcast or recorded absent his consent or a warrant.

Justice Harlan, in his concurrence in Katz, discussed the protection the fourth amendment affords to people. He set forth a dual 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. ⁸ We have adopted that rationale for Alaska. ⁹

Katz did not involve the surreptitious broadcasting or recording of a conversation by a party to the conversation. After the Katz decision, there was a division of opinion among the federal courts regarding consensual eavesdropping. ¹⁰ The issue was confronted by the United States Supreme Court in United States v. White, supra. Government agents were permitted to testify as to conversations between the accused and an informant who carried a concealed radio transmitter. The informant did not appear as a witness. The United States Court of Appeals for the Seventh Circuit reversed the convictions, holding the evidence to be inadmissible under Katz. ¹¹

Speaking for four members of the Supreme Court, Justice White held that there was no violation of the fourth amendment and that, in any event, the case pre-dated Katz which was therefore not applicable. Under the decision in Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), Katz was held to apply only to surveillance that occurred subsequent to the date of that decision.

Justice Brennan concurred in the result on the basis of Desist ; but he agreed with the views of the dissenters, Justices Marshall, Douglas and Harlan, that undisclosed electronic broadcasting or recording of a conversation by a participant violated the fourth amendment in the absence of a warrant. Justice Black concurred in the judgment because of his dissent in Katz which expressed the view that conversations can neither be searched nor seized and are, therefore, not subject to fourth amendment protection.

In construing similar provisions of Alaska's Constitution, we, of course, give careful consideration to the holdings of the United States Supreme Court, although we are not bound by them. ¹² White, however, does not present a clear cut agreement by any majority of the justices, and our decision as to Alaska's Constitution should therefore be influenced solely by the reasoning supporting the differing positions. Moreover, the United States Supreme Court has carefully stated:

(T)he protection of a person's General right to privacy his right to be let alone by other people is, like the protection of his property and of his very life, left largely to the law of the individual States. (footnote omitted, emphasis in original) ¹³

In Holmes v. Burr, 486 F.2d 55 (9th Cir.), Cert. denied, 414 U.S. 1116, 94 S.Ct. 850, 38 L.Ed.2d 744 (1973), the court was confronted with a case in which Marberger, a participant in a telephone conversation with Holmes, permitted government agents to eavesdrop and record the conversation. The tape was admitted at trial. Despite White, Judge Hufstedler dissented from a holding affirming the conviction. The rapid expansion of governmental surveillance by wiretapping and bugging is reviewed in that dissent. Judge Hufstedler states that participant monitoring and electronic surveillance are much more widespread, running into tens of thousands of instances per year. Id. at 65. She states:

In a pluralistic society dedicated to liberal democratic traditions, confidential communication serves as a lubricant for the smooth functioning of social and political institutions. Without "uninhibited, robust, and wide-open" public and private expression on the great issues of our day, as well as private discussion about the mundane, the trivial, and the banal, a once free society will soon become a nation of "hagridden and furtive" people. . . .

The corrosive impact of warrantless participant monitoring on our sense of security and freedom of expression is every bit as insidious as electronic surveillance conducted without the consent of any of the parties involved. In terms of the individual's reluctance to speak freely no qualitative difference exists between the danger posed by third party interception and the risk that his auditor has sanctioned a secret recording of their conversation. Extensive police-instigated and clandestine participant recordings, coupled with their use as evidence of any self-incriminating remarks of the speaker, pose "a grave danger of chilling all private, free, and unconstrained communication. . . . In a free society, people ought not to have to watch their every word...