State v. Glass

woman, remaining for the commodation with sharing

such a room a matron until as Alaska, Petitioner, STATE of out employed of women came the number imagi- little number. A creative to an even GLASS, Respondent. Theodore system, part ferry nation on shifting No. may necessitate some 3565. vessels among crew members different Supreme Court of Alaska. ferry system, certainly would solve Sept. ferry system con- “great problem” it created its tends it faces

own actions. say that we is that neither

All need nor the mat berthing problems other are of sufficient

ters we have discussed in

import justify the sex discrimination ferry

employment practiced by that was

system plaintiffs sought time the position utility per

employment. The department

son or waiter in the steward’s reasonably

was not such demand urgent

only males hired. There was no overriding

or that there a dis necessity

tinction such on the employment basis Summary judgment

sex.6 favor

ferry system granted. was improvidently judgment is reversed. The case is (a) entry superior court for the

remanded summary judgment plaintiffs, in favor of (b) issues purpose resolving plaintiffs’ complaints, such as

raised in the status, seniority etc. pay,

back and remanded.

Reversed Rights prohibits exception 6. The Federal Civil Act dis- able accommodation” in the federal employment religious regarding of reli- crimination account law beliefs. 2000e-2), gion (42 employ- “Unless § U.S.C. However, hand, in the case there is no neces- reasonably er demonstrates that is unable to he sity rely upon federal decisional law to reach employee’s prospective accommodate to an the result we have. The reason for this is that employee’s religious practice observance (1) dealing religion, we are not which is hardship without undue on the conduct of the not included exception within “reasonable demands” employer’s 2000e(j). business.” § U.S.C. Statute; (2) Alaska Products, Inc., Wood Wondzell Alaska exception prohi- “reasonable demands” to the (Alaska, Septem- Opn.No. against bition discrimination on account of sex 15, 1978), ber we that because of the held unambigu- in the Alaska Statute clear and Federal and Alaska similarities between the ous, and does not necessitate resort federal Statutes, Rights Civil should be read into there interpretation. decisional law for 18.80.220) (AS the Alaska Statute the “reason- Ray, Atty., Harry Asst. Dist. violation Richard J. of AS 17.10.010. Prior to his Fairbanks, Davis, Atty., trial, Dist. and Avrum L. suppress he moved to all evidence of Juneau, Gross, Gen., Atty. petitioner. M. tape recording, alleging violation of his rights under the fourth amendment to the Backstrom, Deputy Public De- David C. Constitution of the United States and art. Fairbanks, Shortell, fender, Brian Pub- sec. of the Constitution of the State of Defender, Anchorage, respondent. lic Alaska, prohibit both of which unreasonable BOOCHEVER, Justice, Before Chief and seizures, I, searches and and under art. sec. RABINOWITZ, CONNOR, BURKE and Constitution, of the Alaska guar- MATTHEWS, Justices. antees Alaska’s citizens the right to privacy. superior granted motion, The court Glass’ OPINION stating opinion: in a written BOOCHEVER, Justice. Chief No warrant by was obtained the State presented petition although The sole issue the circumstances most certain- superior ly provided for review is whether the court sufficient time for application granting suppress erred in a motion to evi- presented therefor to have been to an impartial dence obtained electronic surveillance of magistrate. subject The broad- alleged narcotics transaction which casts from within the confines of the gave respondent’s rise to the indictment. defendant’s home were searches and were severe invasions into the privacy of the facts, they important insofar as are defendant. The Constitution of the State issue, our decision of this can briefly of Alaska suppression mandates of the 26, 1977, April stated. On members of the tape recording of the transaction. The Team, po- Fairbanks Areawide Narcotics live testimony of the informant is still up officers, lice unit made of state and local allowable. Baker, police informant, fitted a Rondi transmitting a small radio device. Baker ruling This is now before this court on the transported respondent was then Theo- petition state’s for review.1 dore Glass’ home where she believed she The issue in this case is of substantially and, purchase could heroin. Baker entered significance more than whether or not The- premises, allegedly purchased while on the odore Glass committed the offense charged quantity of heroin from Glass. The con- grand jury’s indictment. presents It surrounding versation that transaction was a question major importance as to the electronically by police recorded officers scope right of the expressly set by monitoring stationed outside the home forth by an amendment to the Alaska Con- frequency the transmitter worn right stitution: “The people priva- Baker. The cy recognized is and shall not be infringed. that conversation was done without benefit ” of a search warrant or other order of the court. petition, In its the state pri relies events, marily upon

As a result of these Glass federal decisions dealing with possession was indicted on two the fourth amendment to the United States counts— drug drug— narcotic and sale of a narcotic Constitution.3 The authority questiona- granted petition 1. We for review to resolve 3.The fourth amendment to the United States controlling question specifies: of law as to which there Constitution ground opinion. is substantial for difference of Searches and seizures. The materially Review will ultimate advance the people houses, persons, to be secure in their litigation, question termination of the and the papers, effects, against unreasonable importance justify of sufficient our immedi- seizures, violated, searches and shall not be Appellate ate attention. See Rules 23 and 24. issue, upon proba- and no Warrants shall but cause, supported by affirmation, ble Oath or 2. Art. sec. Alaska Constitution. particularly describing place to be be, tions: “Wherever a man view, as to he is ble, and, persuasive in our analogous pro- of Alaska’s to know that he the construction entitled will remain free event, those authorities vision.4 from unreasonable searches and seizures.” regarded as determinative not be should 389 U.S. at at L.Ed.2d of Alaska’s scope court stated the fourth right is amendment, express no such since “protects people, places.” amendment Constitu- containéd U.S. at tion.5 at 582. It thus was immaterial whether phone “constitutionally pro- booth was a to the federal cases cited Looking first except tected” area.6 state, we note that all 745, 91 S.Ct. States it, who occupies One shuts door (1971), pre-date major L.Ed.2d 453 him, permits behind pays toll Katz v. United wrought by change to place him a call is surely entitled to 507, 576 347, 19 L.Ed.2d 88 389 U.S. S.Ct. assume that the words he utters into Katz, govern- the trial of (1967). At mouthpiece will not be broadcast to introduce evidence permitted ment was world.7 by overheard telephone We believe that one engages who listening a had attached agents who F.B.I. similarly conversation is entitled outside of recording device and that his to assume words will not be broad Katz telephone booth from public or cast recorded absent his consent or a Previously, fourth placed had his calls. warrant. cases had been considered amendment a trespass property standpoint —whether Harlan, in his Justice concurrence in Katz, the court committed.

had been Katz, protection discussed the the fourth governs Amendment that the “Fourth held people. amendment affords to He set forth items, but only tangible seizure of person a dual requirement first, that a recording of oral well to the as as extends — (subjective) have exhibited actual expec 353, 88 at statements,” at 389 U.S. and, second, privacy; tation of that 583, tres- 512,19 independent of at L.Ed.2d one expectation society is prepared The court indicated pass considerations. recognize as reasonable.8 We have requirement of fourth the warrant adopted limita- that rationale for had no fixed locational Alaska.9 amendment things we or to be 6. believe the dissent’s re- and the searched, persons Similarly, Lopez v. United 427, liance on 373 U.S. seized. (1963); On Lee v. 10 1381, 83 S.Ct. L.Ed.2d 462 14 of Alaska’s Constitution pro- 4. Art. sec. States, 343 United 747, 967, U.S. 72 S.Ct. 96 vides: general L.Ed. 1270 and citation to other Searches and Seizures. Katz predating recognize authorities fails to houses to be secure their persons, people significance of the demise of a trespass effects, and and other property, papers, subjecting and the of conversa- requirement against seizures, unreasonable searches and n tions to search seizure provisions. No is- warrants shall shall not violated. cause, sue, supported by but upon probable 352, at 511, 7. 88 S.Ct. 19 L.Ed.2d at affirmation, describ- particularly oath' or 582. ing searched, to be the place persons things to be seized. 361, 389 U.S. at 88 S.Ct. at 516, 8. L.Ed.2d in States Court has Supreme 5. United to certain activities ferred a State, (Alaska), v. rights 9. See Smith in the ten 793, set forth first 510 P.2d from other denied, Wade, v. rt. See Roe 603, 410 U.S. 414 U.S. 94 S.Ct. amendments. ce (1973), quoting (individual (1973) L.Ed.2d 489 Justice Harlan’s 35 L.Ed.2d 147 Stanley Katz abortion); v. Geor We have as a “touchstone.” opinion decision to have an gia, test. Woods & reaffirmed repeatedly L.Ed.2d Rohde, State, (Alaska Inc. v. (1969) (private obscene materi 565 P.2d possession State, Connecticut, 1977); Anderson v. als); 555 P.2d 260-61 Griswold (use (Alaska 1976); Nathanson 510(1965) of con 1976). (Alaska persons). 456, 458 married traceptives Katz did not surreptitious involve the rant. Justice Black concurred in the judg- broadcasting of a conversation ment because of his dissent in Katz expressed After the party to the conversation. the view that conversations can decision, neither Katz opin- are, there was a division of be searched nor seized and therefore, subject among regarding the federal courts con- to fourth ion amendment protection. eavesdropping.10 The issue was sensual Supreme confronted the United States In construing provisions similar White, supra. in Court Constitution, we, Alaska’s course, give agents permitted were to testi- Government careful consideration to the holdings of the between the accused fy as to conversations Court, Supreme States although we and an informant who carried concealed are not bound however, them.12 The informant did not radio transmitter. present does not a clear cut agreement by appear as a witness. The United States any majority justices, and our deci for the Circuit Appeals Court of Seventh sion as to Alaska’s Constitution should convictions, holding the evi- reversed the therefore be influenced solely by the rea under Katz.11 dence to be inadmissible soning /supporting the differing positions. Moreover, Speaking for four members Su- States Court Court, preme carefully White held that there Justice stated: of the fourth amendment was no violation general person’s [T]ne that, event, pre-dated the case rig' it to right to be let alone —his Katz which was therefore not applicable. people is, other like the — the decision in Desist v. United Under his Woperty very life, and of his left States, 244, 1030, 89 22 394 U.S. S.Ct. largely to the law of the individual Katz was held to (1969), apply L.Ed.2d 248 (footnote omitted, States\ emphasis in that occurred subse- only to surveillance original^13 quent to the date of that decision. Burr, In Holmes v. (9th 486 F.2d Cir.), 55 in the result denied, Justice Brennan concurred cert. 1116, 414 850, 94 S.Ct. 38 Desist; agreed but he on the basis of (1973), L.Ed.2d 744 the court was confront dissenters, Justices Mar- views of ed with a case in which Marberger, a partic shall, Harlan, that undisclosed Douglas and ipant in a telephone conversation with broadcasting Holmes, electronic permitted government agents to participant a violated the eavesdrop and record the conversation. tape fourth amendment in the absence of a war- The was admitted at trial. Despite Saunders, Eavesdropping (7th Cir.), banc, 10.See “Electronic 11. 405 F.2d 840 aff’d en 405 Right Privacy,” (1969). and the 52 Boston U.L.Rev. F.2d 838 831, (1972). Compare 832 United States v. Jones, F.Supp. (D.D.C.1968), 292 1001 re may 12. We construe Alaska’s constitutional versed, U.S.App.D.C. 140 433 F.2d provisions 1176 affording See, rights. as additional Devore, (1970), with v. g., State, 423 F.2d Zehrung (Alaska e. 569 P.2d 189 denied, (4th 1970), 1977), opinion 1069 Cir. cert. 402 U.S. rehearing, 573 P.2d 858 (1971); (Alaska 1978) (search 29 L.Ed.2d 119 United seizure); and Woods & (2d 1969); Polansky, Rohde, State, States v. 418 F.2d 444 Cir. (Alaska Inc. v. 565 P.2d 138 Gardner, (6th 1977) (search seizure); State, United States v. 416 F.2d 879 Cir. and Blue v. 558 States, 1969); (Alaska 1977) (right Koran v. United 408 F.2d 1321 P.2d 636 to counsel at denied, (5th 1969), pre-indictment line-up); Rickey, Cir. cert. 402 U.S. Isakson v. (1971); (Alaska 1976) (equal protection); 29 L.Ed.2d 118 P.2d 359 Yar State, Kaufer, (2d 1969), (Alaska 1976) bor States v. 406 F.2d 550 Cir. aff'd, (speedy trial); State, Scott v. 519 P.2d 774 (Alaska 1974) States, Dancy (self-incrimination); and v. United R. L. R. v. (5th also, (Alaska 1971) (jury 1968). Doty 487 P.2d 27 F.2d 370 See trial Cir. States, delinquency proceeding); City (10th 1968), Baker v. 416 F.2d of Fair Cir. banks, (Alaska 1970) (jury trial). 471 P.2d 386 vacated and remanded with instructions to dis miss, nom., Epps sub v. United 350-51, 28 L.Ed.2d 542 13. Katz v. United 389 U.S. at 510-11, S.Ct. at 19 L.Ed.2d at 581. rejected that been expressly fiction dissented from Judge Hufstedler rap Supreme Court the context of war- affirming the conviction. The holding and seizures.15 The evi- surveillance rantless searches governmental expansion id is inadmissible on con- any dence therefore is reviewed in bugging and wiretapping theory.16 sent that Judge Hufstedler states that dissent. electronic sur and

participant principal distinction between the risk widespread, run are much more veillance may one’s be a and gossip that confidant per of instances into of thousands ning tens risk the conversation being that Id. at 65. She states: year. explained: broadcast or recorded is to lib- pluralistic society In a dedicated Repetition thought of conversations traditions, confidential eral democratic ais known risk. How- be confidential as a lubricant communication serves ever, that the risk one’s trusted friend po- functioning of social and the smooth entirely be is of may gossip different “uninhibited, institutions. Without litical a risk order than friend robust, wide-open” private and public and transmitting recording every sylla- and day, great issues of our expression on yet latter risk is not ble. The rooted about well discussion as experience, American and it common banal, trivial, mundane, the and upon should not be thrust us: the differ- na- become a society will soon free once person en- talking ences between people. and furtive” “hagridden tion one equipment swathed in electronic real, very they cannot

who not are insignificance by verbal of warrantless reduced impact The corrosive All of legerdemain. topics our us discuss monitoring on sense participant person we expressions ev- use with one expression is security freedom of would undertake with another and surveil- insidious as electronic ery bit as we would never broadcast consent lance conducted speak us ever free- In terms crowd. Few of would parties involved. we our speak freely ly if knew that all words were reluctance the individual’s being captured by machines for later re- qualitative difference exists between no party intercep- potentially lease an unknown and by third before danger posed hostile one risk his auditor audience. No talks to a re- tion and the that person.17 of their con- corder as he talks to a sanctioned a secret police-instigated Extensive versation. bar, In the case at argues the state that recordings, participant and clandestine there is no talking difference between to a of their as evidence coupled with use repeats friend who what is told in confi- speak- self-incriminating remarks of the talking dence to with a one transmitter all chilling of er, grave danger pose “a All or recorder. one needs do to refute that free, commu- and unconstrained private, oneself; statement is to ask the question of society, peo- . . In a free nication. . would it amake substantial difference to their to to watch ought not have ple risk, speaker only to assume the not Lopez v. Unit- carefully.” every word so one’s betrayed by that confidence will be 452, 83 373 U.S. at ed ... recollections, oral but also the that risk J., dissenting).14 (Brennan, at 1395 secretly one’s remarks will be recorded or casual, Certainly, many broadcast? say that to points out dissent caustic, is a consent irreverent remarks would Marburger’s consent is Holmes’ (1961) 81 S.Ct. 5 L.Ed.2d 828 65-66. 14. 486 F.2d at (landlord cannot search consent to of tenant’s Id. 71. also, quarters). See Robinson (Alaska 1978). P.2d California, 16. Stoner v. (1964) (hotel manager can- II 17.486 at 72. F.2d guest search on behalf of not consent room); Chapman guest’s v. United is, inhibited, course, It as would criticism individu- easy to say that one not policies. employee als and could engaged illegal activity an right has no point shortcomings his impunity complain if his conversations are broad- superiors If, however, or in the functions of his office. cast or recorded. law enforce- freely Families not could discuss the foibles lawfully ment officials partici- cause prodding may others. Clever elicit pants secretly to record and transcribe pri- sex, thoughtless religion, comments about conversations, vate nothing prevents moni- politics, acquaintances, personal finances toring of persons those engaged not in ille- thoughts. even one’s innermost One gal activity, who displeasure, have incurred may repeat takes the that his risk friend have not espoused conformed have un- what be re- has been said. One shouldn’t popular causes. quired to take the additional risk of an justices Six of the seven of the Michigan entirely character —that his con- different held, Supreme recently, Court in the ab surreptitiously versation tran- being is specific sence a privacy provision such as scribed or broadcast. Constitution, contained in Alaska’s A a is repeated confidence false friend the defendant was denied the right parties received third with the attendant Michigan under the Constitution to freedom credibility circumstances of the “friend’s” from an unreasonable and seizure search and memory. One’s ill-considered remarks when a officer testified to conver thereby are preserved posterity sation between the defendant and an infor magnetic tape reels of nor insulated equipped mant with a concealed transmitter from the faded memories inherent -in relayed the conversation to the offi passage of choice of time. Faced with the cer knowledge. defendant’s silence or the risk that comments will Beavers, People 393 Mich. stone,” speaker may “etched choose denied, N.W.2d cert. alternative, former to the manifest diminu- 46 L.Ed.2d 111 tion marks spontaneity our An even compelling more reason for such daily discourse.18 ruling presented by is specific Alaska’s provision recognizing

To that the monitored conver constitutional argue it merely is because is which shall be infringed. sation admissible informant’s tes more version The Montana recently reliable Court has ques to an irrelevant timony respond Brackman, held in State v. 582 P.2d 1216 illegal (Mont.1978), tion. discovered Contraband that its constitutional although entry police is inadmissible provision which states in part that was the best contraband evidence right privacy the to “shall not infringed not We exclude the evidence be present. showing compelling without the state the but because tran cause it unreliable prohibited interest” surreptitious broadcast- preserved constitutional scendent values ing police to the aof aby greater are of societal moment guarantee party to the justices conversation. Two a of that evidence to obtain than the use dissented on the basis that there was no Burr, criminal conviction. See Holmes expectation privacy of since the conversa- J., (Hufstedler, dissenting). 486 F.2d at 74 tion occurred in public the lot parking of police It is axiomatic that conduct not shopping center. justified the of basis the fruits obtained. 544 P.2d 834 Schraff Although there is no legis recorded 1975). (Alaska lative history of right Alaska’s privacy to context, Knowledge 18. In this seizure of a conversation permit that the courts will warrant- expressed may implicate and the ideas therein less of innocent conversations rights speech guaranteed of free the could first chill the conversations themselves. See Saxbe, amendment to the United F.Supp. (E.D. States Constitution Burkhart v. Pa.1978). I, and art. sec. 5 of the Alaska Constitution. A review of the Report careful No. affords broader clear that it provision,19 Convention, in 1968 Constitutional right in- penumbral the than proposed, and the amendment provi- other constitutional w^s ferred debates in the of the Whole case, there that not the Coimnittee Were sions.20 amendment)~fes regarding ded to us to amend the need no have been would delegates conclude that the to consti- constitution. added to article tutional convention § power recognized have Federal courts privacy” the words “invasion of out of a privacy in rights to regulate to states against protect gov- concern to extensive protec- the federal than manner broader use electronic ernmental surveillance included specifically California tions.21 techniques, and not out desire to activities collecting and data surveillance government of secret curb activities privacy right its to aegis of within agents.23 Davis, 13 Cal.3d White v. amendment. previously, As noted California has also 94, 105, 533 P.2d Cal.Rptr. recently approved an amendment to its con- stitution, right privacy to including ascertaining purposes some Assistance rights of all among people. inalienable bemay amendment privacy Alaska’s behind Davis, 13 Cal.3d In White v. Cal. obtained, of a recorded the lack despite Rptr. a case which provisions analogy similar history, from dire, 1984 pre- illustrates that Orwellian by other states. recently enacted opposing dictions those warrantless state immediate- Hawaii, became a figments devices not use of electronic are Alaska, express had no similarly after ly imagination, right privacy the California constitution. original in its right privacy provision applied. posed was Police officers was amended its constitution In covertly recorded discus- as students privacy” phrase “invasions add the university public and in sions in classes The seizure. on search and provisions meetings. holding In such surveil- reads: section amended lance activities to be violation of Califor- amendment, to be secure people nia’s the court privacy stated: houses, papers and effects persons, their Although the full contours of the new seizures, searches, against unreasonable provision yet constitutional have not be vio- privacy shall and invasions sketched, tentatively even been we have lated.22 concluded that the surveillance and data gathering challenged activities 513, 510 P.2d Roy, 54 Haw. State aegis case do fall within the that provi- (1973), the Hawaii 1068-69 sion.24 of that amend- purpose explained Court informant, Similarly, In a case where we believe ment. that Alaska’s devices, prohibits of electronic privacy the assistance amendment secret marijuana, monitoring of purchasing upon electronic about testified Like participant. admissible. the mere consent of the evidence court held provision, held not to the contours of Alas amendment was California’s Hawaii yet firmly ka’s are repeating a conversation. person’s prevent meaning privacy The of of established25 as follows: was described purpose Its (Alaska State, sec. Hawaii Constitution. 22. Art. Gray P.2d 528 v. 525 19. 1974). 23. Id. at 1068-69. State, Rohde, P.2d Inc. v. 565 20. Woods & Cal.Rptr. at 24. 120 at 533 P.2d 233. 1977). (Alaska 149 Among applying States, supra con the Alaska 25. cases Katz v. United 21. See Erickson, 581; 510-511, provision 574 350-51, are: State v. stitutional 19 L.Ed.2d at (Alaska 1978) (possession Time, Inc., of cocaine for 1 449 F.2d 251 P.2d and Dietemann protected); personal Fal 1971), use in the home not (9th cited therein. and cases Cir. 880 vary depending repetition on the fac-

necessity private must of conversations. competing often inter- tual and the The of surreptitious context use electronic devices society ests and individual.26 conversations, of to broadcast or record how- defined,27 example, ever, has been for a development is of vintage. recent alone,”28 as “to be let of We conclude expectation that the that one’s when, for themselves persons “to determine will not be secretly recorded how, and to what extent information about or broadcast recognized should be as reason- 29 others,” them is communicated to and able. right which “the protects individual’s inter- prior Even to California’s enactment of preserving dignity his essential as est privacy amendment, its the United States being.”30 human Our conclusion is consist- held, Court of Appeals for the Ninth Circuit concepts ent these with the test of with case, in a diversity that a California com- privacy by Justice Harlan in articulated mon law cause of action for invasion of Katz, adopted by this court. supra, privacy was established when employees of two-pronged Applying Justice Harlan’s Time, Inc., gained entrance to the office test, communicating we believe that one of portion the plaintiff’s home his with con- private matters to another exhibits an actu- secretly sent and photographed then him (subjective) expectation privacy al of electronically recorded and transmitted is equipped whether or not the listener with his persons conversation to third key question is electronic devices. activity his consent. The occurred in coop- is one expectation whether that eration in cracking down on society prepared recognize as rea- is quackery. Expressing medical the view of sonable. many jurisdictions that such electronic sur- privacy rights, veillance violated the court enforcement, In of law the context stated: it use informers is a is true that jurisdictions In other than necessary crime. California in highly fighting tool common law illegal drugs, as involved tort invasion combating sale recognized, is case, na it has because the clandestine been consist transactions, by police ently surreptitious held that testimony ture of the electronic re cording the criminal plaintiffs or others trusted informers causing convic is of the few methods one emotional distress him is actiona Society is not ble. Despite tions be obtained.31 some variations in the de accept subjec scription reasonable the willing applied and the labels to the engaged tort, in a expectation agreement tive of one con there publication is repeated. not For a necessary tort, that will versation element of the gossip generations, condoning that the trespass while existence of a technical friend, immaterial, society countenanced that proof special false Commission, generally, Hodges, con Alaska Public Offices 570 27. See “Electronic Visual 1977) (certain (Alaska information P.2d 469 Surveillance and the Fourth Amendment: The physicians is within zone of Big Hastings communicated Arrival of 261, Brother?” Const.L.Q. State, Rohde, privacy); (1976). Inc. v. Woods & 262-63 1977) (warrantless (Alaska adminis P.2d 138 premises inspections business trative prohibited); Brandéis, Right 28. Warren and “The to Priva- State, 562 P.2d Anderson v. cy,” (1890). 4 Harv.L.Rev. 1977) (Alaska (state may sexual con control State, juveniles); P.2d duct of Ravin v. Westin, Privacy (1967). 29. and Freedom (Alaska 1975) marijuana (possession of personal protected). adults for use in the home Hufstedler, “The Directions and Misdirec- also, Howard, See “State Courts and Constitu Right Privacy,” tions aof Constitutional Court,” Day Rights Burger tional (1971). Record of N.Y.C.B.A. 62 Va.L.Rev. 928-37 (Alaska 31. Pascu Erickson, 1, v. 22 26. See State 574 P.2d n. 144 1978). (Alaska 1978). monitoring v. electronic of (E. g., Nader conversations required. damages is not that, be allowed. It be may should (1970) N.Y.2d 25 Corp. Motors General contexts, other search and seizure the re- 647, N.E.2d 765 255 560, 307 N.Y.S.2d quirement may of a warrant be law); obviated of District Columbia (applying exigent under circumstances. We withhold (1964) 106 N.H. v. Eastman Hamberger passing presented on that issue until with a 239; (1958) Harper Roach v. 107, A.2d specific however, Generally, case. a search 564; 869, McDaniel 105 S.E.2d 143 W.Va. warrant be required permit- should before (1939) Bottling Co. v. Coca-Cola Atlanta ting monitoring electronic of conversations. 810; 92, Pearson cf. Ga.App. S.E.2d Dodd, 279, 410 F.2d U.S.App.D.C. v. We believe that this require 947, (1969) 701, cert. denied ment will not unreasonably impinge on le 465).32 2021, 23 L.Ed.2d gitimate law enforcement efforts.34 In United States v. supra, there was litiga of civil purposes If for testimony eight about separate conversa consti tion, bugging electronic participant 745, tions that were monitored. 401 U.S. law a common invasion of tutes an 747, 1122,1123, 453,456. 28 L.Ed.2d an obviously violates such conduct privacy, Certainly, based on an affidavit of the in of the declaration expressed constitutional formant as to earlier non-monitored conver warrant, of a search In the absence right. sations, a warrant was In obtainable. be held to be should so obtained evidence case, appears Glass’ that Ms. Baker be illegally acquired. purchase lieved she could heroin at Glass’ conduct of only just that It seems probable home.35 If there were cause for re activity be engaged in criminal those belief, a warrant could have been sec en of law Legitimate interests vealed. requirement ured.36 Just as the warrant authorities, however, may gener forcement protects against unreasonable search and in other manner as met in the same ally be seizures, prevent improper it can invasions of In the absence and seizures. monitoring. searches Alas privacy of electronic warrant should exceptions, search its people limited that ka’s Constitution mandates magistrate, impartial invasions of means obtained be free from monitoring to believe of conversa surreptitious cause of probable on based discovered,33before tions. activity will be criminal State, g., v. Anderson 562 P.2d e. 247-48. F.2d at

32. 449 State, 1977); (Alaska Ravin v. 537 P.2d See, g., 543 P.2d e. v. Keller (Alaska 1975). 503-04 holding We decline base our 1975); Spietz, (Alaska State protection, particularized on this how- (Alaska 1975). ever, since we have concluded that the of infringed by participant warrantless bugging argument is that aids advanced 34. One monitoring regardless conversations may ques- safeguarding This in tionable since vices informants. police locus surveillance. presence de- of electronic risk, may add his on informant “anti-bugging” sophisticated technolo- because predic 36.The dissent cites Justice Coleman’s presence gy may may or it of the device Beavers, disclose People tion in her dissent in event, otherwise be discovered. denied, Mich. 227 N.W.2d 522 cert. Hampshire that contention has met New 46 L.Ed.2d 111 permits partici- holding statute requirements for technical permit monitoring pant the introduc- does not specificity in the issuance of warrant could tape of a conversa- tion at trial tion transmitted held that the was to allow legitimate searches and seizures of frustrate The court a device. such activity. incident to criminal We exception purpose of the statute’s Conversations, course, agree. do protect the un- officers variety variety places and occur in a subjects. pur- for and that dercover officer poses ing required description is a What is equivalent to monitor- the was not of rescue person subject which is reasonable purposes conver- of introduction circumstances, leave under the and we shall Ayres, 383 A.2d at trial. State sation requirements further to future refinement (N.H.1978). cases. recognized high previously de- 35. We have See, surrounding gree the home. In Judge States, Blair’s well-reasoned On Lee v. supra, hold that We agent the evidence obtained narcotics overheard a suppressing by conversation decision means correctly applied microphone electronic surveillance radio transmit- by by by ter carried an art. secs. 14 informant with whom precepts guaranteed the the defendant spoke. agent’s The testimony the Alaska Constitution.37 relating he what had heard prop- was held AFFIRMED. erly against admitted the defendant in his selling opium. trial for the Rejecting de- BURKE, J., dissents. argument fendant’s that such conduct was BURKE, Justice, dissenting. analogous illegal wiretapping, the Su- preme Court of the the United States held Supreme Court of there was no of his consistently held that the Fourth violation Fourth rights, Amendment use, saying; the prevent Amendment does evidence, moni- electronically presence of statements of a radio set is not suffi- simi- circumstances suggest tored or recorded under cient to more than the most at- See, case at present analogy to those in the bar. lar tenuated to wiretapping. Peti- Lopez v. United tioner g., talking e. was confidentially and in- (1963); discreetly trusted, On with one he and he was Lee United overheard. This was due to aid from (1952). receiver, 96 L.Ed. 1270 See also transmitter sure, to be but the same States effect his privacy as if agent Other federal courts 28 L.Ed.2d 453 Lee had been eavesdropping out- interpreting multitude state courts side an open window. The use of bifo- cals, provisions found in their own state glasses similar field or the telescope mag- nify the view. expressed object constitutions have same the of a witness’ vision Annot., (1964). Thus, A.L.R.2d 1283 seizure, forbidden search See or if they even overwhelming weight of authority the holds focus without knowledge his or consent by upon secured means of a me- that evidence what one supposes to be or electronic device is chanical indiscretions. It would be a dubious ser- admissible, appears it that one of the genuine where vice to the liberties by protected to the conversation consented to or parties Fourth Amendment to make them interception. Id. cooperated spurious in its bedfellows with impro- liberties par- Although through illegal has not raised been obtained use of an eaves- ties, dropping we note existence AS 11.60.290 device. provides: prohibited punisha- Conduct AS 11.60.290 is imprisonment pursuant ble person fine or or Eavesdropping. both It is unlawful for a holding to AS 11.60.310. Our is unaffected statute, however, (1) eavesdropping interpreting or device to hear since we are use an provisions. any part Moreover, record all oral constitutional or conversation we do not party positively sanctioning without the consent of a to the conver- construe AS 11.60.290 as sation; conduct not declared unlawful therein. The (2) divulge any report Judiciary use information or House Committee ac- reasonably bill, he knows or should know was companying original prior enacted through illegal obtained dropping use of an eaves- adoption the ment, amend- device for his own or another’s ben- stated: efit; regard by wiretap to evidence obtained contents, existence, (3) publish sub- eavesdropping being other devices used in stance, any meaning purport, effect or proceedings any court the bill does not through illegal he has heard way change existing law of Alaska. The device; eavesdropping use of an rejection admittance of such evidence is existence, (4) publish divulge, or con- governing left to law case and the rules substance, tents, purpose, meaning effect or admissibility interpreted by of evidence as acquaint- become conversation he has the court. reasonably should ed with after he knows or also, 1966 H.J. at 525-29. See Roberts v. conversation and the informa- know (Alaska 1969). 900-02 in the conversation was tion contained pant agent which and which that analogies fully was enti farfetched vised tled the to disclose. And device was not conversa- eavesdropping on a liken would planted by means an physical unlawful of the of one tion, with the connivance the defendant and wire ant’s office agent a bribe. his sation on a Supreme agent could court Court parties, zure. We find In Amendment. properly ing to the have constitutional emerges human agents to would have by an unlawful tion here. Court constitutionally protected area. 86 L.Ed. validity of these decisions ed L.Ed. “eavesdropping” man United pocket. Once it is recording of a conversation States, Lopez v. United in this “electronic testify said: in the electronic Lopez, been used 679], 5 L.Ed.2d Court which ear. United States [365 small 1322. It has been testify an unreasonable recording overhear conversations [66 Noting, as did the case, that the plain been Indeed about During a visit See, gave agent proper the defendant . recording device carried no violation U.S. A.L.R. challenge, when constitutional eavesdropping” whatever past beyond the reach of the about his conversation e. Olmstead Unit physical invasion of to enable . its an Internal device not be this case involves g., recorded the conver- approval . [agent] sustained States, supra, the perspective. 376]; conversation, the 734, supra. The agent himself search insisted government offered Goldman the Davis could claim relat any proper to use of instances Revenue between superior in ques defend- v. planted against Fourth 505, 81 devices Silver only sei- the no a - supra, the sion government agent relating a conversation for the Court saw no from radio transmitter concealed upon the between overheard person of was error to stated: and out invasion More heard more than the petitioner’s circumstances which would violate the Fourth his official use his conversations with a de- fendant and counters with 382]. otherwise Amendment 408 at 412-414 ferent result either scribing his conversations with States, conversations ment with electronic stead carrying States, supra; (2) ment a Concededly police agent a plurality the United States Court of Appeals recently, located Seventh Circuit which held that it For constitutional (1) simultaneously records them Amendment. immediately reporting of petitioner’s premises on his connections by monitoring violating U.S. defendant and an informant informant. Four members of assent, warrant simultaneously admit elsewhere or to other opinion, is rights. either to recording agent in United testify concerning required ^[293] necessity person, Lopez [17 equipment defendant and without Court reversed a deci- or carries radio and neither the testimony L.Ed.2d 374 at who was there with authorizing agent at Mr. Justice White It Hoffa 300-303, purposes, States if latter’s Fourth was carried in write for a warrant. himself.2 transmissions transmits the who conceals which he defendant, v. agent v. down saw 87 S.Ct. his no dif- United agents under equip- equip- them, tran- nor en- in- is did that term. The Government sense of transmitting frequency. in on device to listen use an electronic supra. On Lee v. If the have it would not otherwise agent oper- conduct and revelations of an Instead, only used the device was ating equipment heard. without electronic do possi evidence obtain the most reliable not invade the defendant’s constitutional- justifiable expectations privacy, in which the nei- ly ble of a conversation partici ther does simultaneous agent own was Government’s 438-39, 753-54, 83 S.Ct. at 1387-88. 2. 373 U.S. 1. 343 U.S. at made the agent Relating same conversations to Electronic (Ap- Surveillance by others transmissions received Draft, proved 1971). The pro- standard agent from the whom defendant vides: .

talking and whose trustworthiness The use of electronic surveillance tech- necessarily risks.3 defendant niques by law enforcement officers for the by overhearing the au- or foregoing The view reflected of recording wire or incorporated in of oral thorities has been 4.1§ communications with the consent of the American Bar Association’s Standards one parties of the permitted.4 should be 751, ducting interviews, 91 at 1125. Mr. 3. 401 U.S. S.Ct. Justice routine reliance judgment properly placed in the agents’ Black concurred the Court be in the memories forth contemporaneously. reasons set in his dissent in Katz magis- ment that the officer first find a testi- admissibility the informant’s The try trate and then to describe the conver- ruling way by affected is in no mony (under to place sation be “seized” and the of the two testimony the inadmissible Katz, anyplace, including it could be some the con- monitored police officers [who sidewalk) to where it is be “seized” and versation], The warrantless (if any) go then to the warrant to two testimony of these subsequent and for self-defeat.6 designed the scene is the transmitted tainted renders witnesses conversation, but does not the account of I Like Justice Coleman believe the better prevent the informant any way by great weight view is that favored spoken statement to as to the testifying bar, authority. Accordingly, in the case directly.5 him recording respon- I would hold that dissent, Justice Coleman In well-reasoned with the dent Glass’ conversations infor- court, position criticized the Michigan of the right of any mant Baker was not a violation stating: colleagues, taken her I, by art. 14 of the guaranteed to Glass § assume, and, I standards federal By Alaska, Constitution of the State of majority of this standards suppressing court erred in superior Court, taped a device to a record from tape recording on the evidence of be admissi- body would [the informant’s] grounds stated. testimony by as would be in' evidence ble leads me to the further reasoning Similar closet or at an listening from a people there no conclusion that was violation of premises viewing window or open rights under art. 22 of the State Glass’ § can be Conversations with binoculars. provides: That section Constitution. parties. to third or related written down people The to right matter, monitoring the practical As a infringed. recognized and shall not be through a consensual same legislature sec- implement shall greater de- no provides “walkie-talkie” tion. gree of “intrusion.” grounded testify. most serious reasons in the most is enti- Where he himself to

witness policy objection should testify, fundamental considerations no valid there can be tled to suppression overhearing recording warrant the failure to use or or an the use of to device, product and reliable evidence. Nardone v. of its of relevant the introduction [60 to ex- United have the one should trial. No Overhearing (1939). testimony party or L.Ed. 307] third clude recording possible none those reasons or “rely involves recording flaws on memory, or to chal- considerations. . . . [witness’s] Relating credibility to Electronic Sur- lenge without be- A.B.A. Standards . . . [his] Draft, 1971) (Approved by corroborating at 126-27. ing that is veillance evidence beset Lopez impeachment.” susceptible (Emphasis original.) at 516. 5. 227 N.W.2d U.S. at [83 too, may necessary Overhearing, 1381]. at 522. Id. Only an informant. recognized by su- Unquestionably, more vital than in the community of Ameri ” court, respondent, even perior Baker can schools.’ 120 Cal.Rptr. at testify concerning to be entitled her would P.2d at quoting the Supreme Court of own with Glass and to relate the dealings Tucker, Shelton surrounding dealings those 479, 487, 247, 251, 5 L.Ed.2d Therefore, the best of her recollection. short, governmental in electronic of those conversations terest might have been furthered respondent’s not an invasion of privacy. was the type of surveillance carried on in that provided recording simply electronic case was held be outweighed by a free accurate record of the state- incriminating society’s interest in having the university undisputed to Baker and it is ments made classroom remain a forum for the free ex personally as testify that Baker could change of I ideas. certainly applaud the As in Lopez these statements. stated decision in but what that all has to States, supra: do with the situation in the case at bar is [respondent’s] Stripped its essentials beyond my ken. argument saying amounts to that he has I would superior reverse the court’s sup- rely possible constitutional pression order. agent’s memory flaws in the chal- agent’s credibility

lenge the without be-

ing corroborating beset evidence that susceptible impeachment.

is not For argument justify

no other can excluding

an accurate version of a conversation that agent testify memory.7 could argument

I to be consider

merit. Like the Court of the Lopez, I think the risk Alaska, Petitioner, STATE of dealing respondent took in with Baker in- cluded the risk that spoken words accurately reproduced court, “would be THORNTON, Respondent. Michael memory

whether faultless or mechanical No. 3764. recording.”8 Roy, See also State v. Haw. 510 P.2d 1066 Supreme Court of Alaska. majority’s reliance White v. Da Sept. vis, 1978. 757, 120 Cal.Rptr. 13 Cal.3d is, believe, I completely unwar similarity I little ranted. see between the

surveillance done in the case at bar and done in where officers

engaged in wholesale secret

university class discussions in order com

pile present, dossiers on those rather than part investigation of an specific crimi activity.

nal Central to the California Su

preme Court’s condemnation of surveil

lance in that case was the obvious threat

posed freedoms, to First Amendment “ that, recognition its vigilant protec ‘The

tion of constitutional freedoms is nowhere

7. 373 U.S. at 8. Id. the aided notes taken States, 347, 364, Campbell States, 389 U.S. United See v. United 373 U.S. 487 507, 518, 576, 1356, (1967), namely: (1963). 589 [83 19 L.Ed.2d S.Ct. 10 L.Ed.2d But 501] informants, eavesdropping credibility may that carried out electronic where suspect, whose be used, see, g., or are e. means involves no “search” “seizure.” Osborn v. United States, 429, 385 U.S. 323 Katz the Court held that there was a Fourth S.Ct. 17 [87 L.Ed.2d (1966), government 394] Amendment where where victims of violation crimes are en- gaged key agents listening in perpe- conversations attached a device to the out- with the themselves, see, telephone g., trators side aof booth and recorded the e. Rathbun v. States, 161, telephone 355 defendant’s end U.S. 107 conversation. S.Ct. 2 [78 case, party investiga- in L.Ed.2d 134] Unlike the facts no that or where the to being individually tors as such are conversation had consented to its moni- involved and credibility police. significant their will tored and recorded the Mr. Justice factor in subsequent trial, see, g., Lopez the in result Brennan concurred the in stat- e. v. Unit- States, ing required 1381, ed 373 U.S. 427 that reversal was Desist v. S.Ct. [83 10 States, 244, 1030, (1963), every L.Ed.2d 462] 394 U.S. 22 effort should be (1969). to through made record the L.Ed.2d 248 In Desist the Court held Katz, supra, apply prospectively, the best available recording would i. means. For e., reproduce very only will spoken to those electronic surveillances occur- the words with significance ring all the added the date of that decision in 1969. after that comes from inflection, (The emphasis aspects surveillance in White v. United and the States other However, speech. 1965.) Reyes, in oral occurred Mr. See State v. Justice Bren- Ore. 209 595, expressed (1957). goal nan further belief that the 308 P.2d 182 [Or.] the Fourth finding requirement imposes a the truth in Amendment warrant the criminal trial de- secretly defendant, too, mands no both where an informant records a less. The has a presented being stake the conversation with the accused and he best evidence where to Thus, jury. recording court and transmits conversation was done in the as such ‘eavesdropping’ any “involves no case at bar. whatever in proper Lopez sense of that term.” v. United commentary 4. The to 4.1 states: States, § 1381, 439 S.Ct. [83 10 Ultimately, 462], the standard . . . unthinkingly rests L.Ed.2d placed It should not be proposition category that the “function of a is trial wiretapping the same with falsity Williams, to out bugging. seek and determine the or truth Wiretapping- charges brought against Eavesdropping the defend- Problem: A Defense Coun- Lopez View, ant.” v. United (1960); sel’s 44 Minn.L.Rev. (1963). Schwartz, S.Ct. Proposals [83 10 L.Ed.2d 462] Legalize On Current To end, always Wiretapping, To that law must seek to 103 U.Pa.L.Rev. 166-67 (1954). too, obtain the Overhearing best and most reliable evidence. eavesdrop- is not Traditionally, ping. speaks that evidence has consisted “When one man to another he mainly testimony of the ordinarily witnesses who all takes doing, including the risks inherent in so they saw or heard what later reveal in court. the risk that the man to better, however, fallibility No speaks man knows public whom he will make what he ** * testimony of human than that man logical who has heard. It is but a prospect trained principle law. The science reasonable extension of this that a through techniques hearer, electronic surveillance man take the risk that his to free provide subject can with us evidence not to memorize what he hears for later verbatim ought, repetitions, the frailties of human nature recording there- is instead or transmit- fore, applauded. ting The use of such tech- to another.” Katz United area, short, niques in this en- should be U.S. 363 n* [88 L.Ed.2d couraged, discouraged, they (1967) (White, concurring). should 576] J. pro- be encumbered with administrative overhearing The crucial issue in investigators cedure. Where trained are con- situation is instead the encourage It serves to hon- called to our defendant’s two decisions One contrary directly protect agent and to the life of the holding esty attention Peo Michigan, plays Court deadly game or informant. He 554, 227 N.W.2d Beavers, 398 Mich. ple microphone and the allows him speedy denied, (1975), cert. help. access In that provides importantly, More a means absence of a in the held that the court case against degrad- the courtroom protect warrant, electronic search ing flagrant perjury. use of an informant defendant’s Further, very nature of the narcot- sei search and unreasonable constituted subject ics trade renders it to need for Michigan provision of zure, under a Otherwise, quick action. the “bird will our own art. § similar Constitution flown,” opportunity have listen to held, as did However, court Michigan a “buy” require- will have been lost. The case at bar: in the court superior

Case Details

Case Name: State v. Glass

Court Name: Alaska Supreme Court

Date Published: Sep 15, 1978

Citation: 583 P.2d 872

Docket Number: 3565

Court Abbreviation: Alaska