STATE of Alaska, Petitioner, v. Michael THORNTON, Respondent.
No. 3764.
Supreme Court of Alaska.
Sept. 15, 1978.
Stripped to its essentials [respondent‘s] argument amounts to saying that he has a constitutional right to rely on possible flaws in the agent‘s memory or to challenge the agent‘s credibility without being beset by corroborating evidence that is not susceptible of impeachment. For no other argument can justify excluding an accurate version of a conversation that the agent could testify to from memory.7
I consider that argument to be without merit. Like the Supreme Court of the United States in Lopez, I think that the risk respondent took in dealing with Baker included the risk that the words spoken “would be accurately reproduced in court, whether by faultless memory or mechanical recording.”8 See also State v. Roy, 54 Haw. 513, 510 P.2d 1066 (1973).
The majority‘s reliance on White v. Davis, 13 Cal.3d 757, 120 Cal.Rptr. 94, 533 P.2d 222 (1975), is, I believe, completely unwarranted. I see little similarity between the surveillance done in the case at bar and that done in White, where police officers engaged in wholesale secret recording of university class discussions in order to compile dossiers on those present, rather than as part of an investigation of specific criminal activity. Central to the California Supreme Court‘s condemnation of the surveillance in that case was the obvious threat posed to First Amendment freedoms, and its recognition that, “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” Id. 120 Cal.Rptr. at 101, 533 P.2d at 229, quoting the Supreme Court of the United States in Shelton v. Tucker, 364 U.S. 479, 487, 81 S.Ct. 247, 251, 5 L.Ed.2d 231 (1960). In short, any governmental interest that might have been furthered by the type of surveillance carried on in that case was held to be outweighed by a free society‘s interest in having the university classroom remain a forum for the free exchange of ideas. I certainly applaud the decision in White, but what that all has to do with the situation in the case at bar is beyond my ken.
I would reverse the superior court‘s suppression order.
Steven J. Call, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, Avrum M. Gross, Atty. Gen., Juneau, for petitioner.
Mark E. Ashburn, Asst. Public Defender, Fairbanks, Brian Shortell, Public Defender, Anchorage, for respondent.
Before BOOCHEVER, Chief Justice, RABINOWITZ, CONNOR, BURKE and MATTHEWS, Justices.
OPINION
BOOCHEVER, Chief Justice.
This matter is before us on the State of Alaska‘s petition for review.1 The issue presented is nearly identical to the one decided by this court in State v. Glass, 583 P.2d 872 (Alaska 1978).
In the case at bar the superior court entered an order suppressing evidence consisting of tape recordings of conversations between respondent Michael Thornton and Phillip Herian, a police informant. Those conversations related to various sales of cocaine allegedly made by Thornton. All such conversations were recorded by Herian or with Herian‘s consent, but without the prior knowledge of Thornton. Some of the conversations occurred on the telephone. Others took place in Herian‘s home. The recordings were made without benefit of a search warrant or other order of the court.
For the reasons stated in our opinion in State v. Glass, supra, we hold that the recording of the conversations in this case violated Thornton‘s rights under
Accordingly, the superior court‘s order is AFFIRMED.
BURKE, J., dissents.
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 majority‘s conclusion that the electronic monitoring and recording of the defendant‘s conversations violated his rights under