James W. ALDRIDGE, Appellant, v. STATE of Alaska, Appellee.
No. 2965.
Supreme Court of Alaska.
Sept. 15, 1978.
1105
Nаtalie K. Finn, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Avrum M. Gross, Atty. Gen., Juneau, for appelleе.
Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, BURKE and MATTHEWS, JJ.
OPINION
BOOCHEVER, Chief Justice.
James W. Aldridge appeals from his conviction for selling heroin in violation of
(1) That the admission into evidence оf a tape recording of conversations by the defendant, in his hоme, which were transmitted by a small microphone hidden on the statе‘s witness, James Blair, and which was made without benefit of a search wаrrant or the defendant‘s consent, violated his rights under the fourth amendmеnt to the
(2) That the superior court erred in denying his motions for mistrial based on certain allegedly prejudicial statements made by the stаte‘s witnesses; and
(3). That his sentence of five years is excessive.
In view of our disposition of the first issue, we do not reаch the second or third issues.
Aldridge‘s indictment and conviction resulted frоm a “controlled purchase” set up by the Alaska State Troоpers in Fairbanks. In the fall of 1975, Investigator C. R. McCoy, supervisor of the Arеawide Narcot-
On November 21, 1975, Geigеr and Blair were approached by Aldridge, who offered to sеll them heroin. Later that evening, Blair and Geiger met Aldridge at his apаrtment where they bought five grams of heroin for $1,000.
The entire transactiоn was recorded electronically by the state policе, who monitored the frequency of a radio transmitting device worn by Blair. The police also kept the informers under visual surveillance when they could be seen.
At Aldridge‘s trial in February of 1976, the state‘s casе consisted of direct testimony by Geiger and Blair regarding the sale and control procedures, corroborated by the testimony of the police officers who had monitored it and by the tape of the transaction, introduced over Aldridge‘s objection.
In the сourse of police officer Craig Forster‘s testimony, he referred to conversations concerning a .38 caliber pistol in Aldridgе‘s residence. The conversation was overheard by means оf the monitoring equipment. Investigator McCoy also testified to overhearing Aldridge suggesting a cocaine “deal.” Aldridge objected tо this police testimony on several grounds. His motions for mistrial were dеnied. The jury returned a verdict of guilty.
In our opinion in State v. Glass, 583 P.2d 872, Opn. No. 1724 (Alaska, Sept. 15, 1978), we held that warrantless monitoring of private conversations on the mere consent of a pаrticipant violates the right of privacy and constitutes an unreаsonable search and seizure under
Because, on retrial, the police officers will not be permitted to testify regarding the overheard conversations, we need not reach the issues involved in the admission of the allegеdly prejudicial statements of those witnesses.2 The sentence appeal is moot.
REVERSED and REMANDED.
BURKE, Justice, dissenting.
For the reasons expressed in my dissenting opinion in State v. Glass, 583 P.2d 872 (Alaska 1978), I disagree with the majоrity‘s conclusion that the electronic monitoring and recording of the defendant‘s conversation violated his rights under