*1 so that 25.30.050(a) jurisdictional, AS Petitioner, oppose did not Alaska,

her the motion failure STATE jurisdictional defect.7 result waiver of the GLASS, Respondent. Theodore jurisdictional de to the

In addition superior August fect inherent Petitioner, Alaska, STATE of it further court we think proceeding, significance superior that court denied THORNTON, Respondent. Michael motion January Karen’s 1978 modification conducting hearing, evidentiary without ALDRIDGE, Appellant, W. James jur requested. Given although one superior underlying flaw isdictional Alaska, Appellee. 1977 order and its subse August court’s STATE hearing to Karen on her quent denial COFFEY, Appellant, Thomas Lee con change custody, we have motion for cluded the matter should be remanded that superior

to the court Alaska, Appellee. STATE of hearing custody conducting a to determine 2965 and 3002. Nos. rights.8 and visitation Alaska. Court of proceedings. for further Remanded

May 1979. BURKE, not participating. foregoing and that superior the fact the chil- Given 7. if the that Even court assumed Alaska, primary jurisdiction custody be- was vested in dren have been in in Alaska Ronald’s jurisdiction appropriate cause it was the state of initial we it since October deem here, 25.30.050(a) custody still lived AS still Ronald remain in Ronald’s that pending children precluded assuming jurisdiction Alaska from custody issues. resolution Oregon jurisdiction. until declined court Further, upon case to the su- remand of the to 6 of the Uniform § Note Commissioner’s court, perior think the should determination (U.L.A.) (1973): Custody Jurisdiction Act Child July based Ronald’s 1977 motion be change than one state have “When the courts of more custody permanent from Karen. jurisdiction priority in under 3 or section jurisdiction superior court lacked Since proceed time which court determines custody modify award Karen earlier . .” action time, subsequent hearing no was held that February prior judge’s to the 1978 affirmance jurisdictional Although underpinnings of order, properly his we think burden is superior August have court’s 1977 order custody permanent voided, Ronald to should argued show persuasively can been it changed The court’s form Karen to him. February superior be determination, court de- when however, custody, change based nied Karen’s motion for Oregon at the time jurisdiction the best of the children did interests since jurisdic- is made. October 1977 declined to exercise determination proceeding. tion Karen’s modification over

H Backstrom, David Deputy C. De- Public fender, Shortell, Defender, and Brian Public Anchorage, respondents for Theodore and Michael Thornton. Cannon, Johnson, Christenson,

James H. Inc., Fairbanks, Shamberg ap- & for pellant Aldridge. James W. Cowan, Kenai,

Robert Merle Walter Share, Defender, Anchorage, Asst. Public appellant Coffey. for Thomas Lee Guaneli, Gullufsen, J. Patrick J. Dean Gen., Attys. Hickey, Asst. Daniel W. Chief Prosecutor, Hanley, James L. Asst. Dist. Gross, Gen., Atty. Atty. and Avrum M. Ju- neau, petitioner. appellee BOOCHEVER,

Before C. and RABI- NOWITZ, CONNOR, BURKE and MAT- THEWS, JJ.

OPINION ON REHEARING BOOCHEVER, Chief Justice. (Alas State 1978), ka we held that warrantless electron monitoring ic a conversation between a informant and defendant violated free the defendant’s sei dom from unreasonable searches and zures under the Alaska Constitution. On 15, 1979, January considering supple after parties, we issued an mental briefs order, follow, stating what governed by cases would Glass. 1978), (Alaska 583 P.2d 872 State v. Thornton, (Alaska 1978), Al 583 P.2d 886 1978), (Alaska dridge 584 P.2d 1105 585 P.2d 514 1978), ruling. new governed Apart from decision those apply prospectively activity occur- agree cases. While we with the borderline September after ring argument general proposition, date the decision.1 latter police departments require we decline to simply applies an estab a decision prosecutors general to monitor law, even if in a new factual lished rule of commentary trends noticed situation, question of does *3 assume, question of on a first im- and question of not arise. state, pression in this this court will a only arises when a court announces new specific in man- interpret our constitution a Wainwright, v. 407 rule of law. Milton ner, authority in the absence of clear so 2180, 371, 2, 2174, n. 92 33 381 S.Ct. construing provi- a similar constitutional 1, (1972) (Stewart, n. 2 dissent L.Ed.2d 9 Thus, holding represents in sion. our Glass 394 U.S. ing); Desist v. United law, 247-48, a of and we must examine 22 new rule 89 L.Ed.2d S.Ct. denied, govern. 89 new rule will rehearing S.Ct. what (1969). 23 L.Ed.2d 251 acknowledges The state that defendant decided, previously This court had not the Glass receive benefit the new discussed, require- warrant even whether a rule. Its brief states: applied participant monitoring, but ment It is the benefit the new clear that decisions, including and state most federal rule is to the defendant in the by plurality the decision the United States [L]itigants . declaring decision. White, Supreme Court in United States v. proceed no incentive to if would not receive the benefit the new rule. not im- L.Ed.2d Thornton, Although Aldridge Coffey and posed a requirement.2 such Defendants Glass, formally consolidated with were point discussing to law review articles the at they were under advisement the same courts, independence increasing of state effect, were, by in time and considered the past interpreting decisions of this court our decisions, as with court one case. All the guarantees, specifically state constitutional exception Coffey, announced on the privacy, broadly the more than Coffey delayed day the same as Glass. was guarantees. argue that They federal the issues, with other in addi- dealt community law enforcement should have Thus, participant monitoring.3 tion to the adopt foreseen that Alaska would a war- holding Thorn- requirement applicability of the Glass rant and add the ton,4 Aldridge Coffey simply should be an ex- encouraged obtain warrants in decision, arriving tion, jury 1. In we and bias of the our considered the error in instructions arguments urging applica- judge. detailed 585 P.2d at 519-26. trial tion of Glass in and Allen v. Nix State State. cases, granted petitions In both we ground alternative under which 4.We note an review and affirmed fusing trial court orders re- by the hold- Thornton would be covered retroactively. Our deci- Thornton, state, defendant, ing. In not the sion was based on the order issued in in- petitioned granting of an a for review order State, (Alaska, stant case. See Nix v. No. 4286 Blair, suppress. Judge motion to who heard 15, 1979), State, Jan. (Alaska, and Allen v. No. 4395 Thornton, sup- suppression arguments in Jan. pressed partici- the results warrantless effect, pant monitoring anticipating, in our authority contrary, In we noted to the fact, Blair, holding Judge it was Glass. In reasoned, which we believe is better and also decision,” a “well-reasoned noted that White was far ing from clearcut hold- suppressed initially P.2d at who had by Court, 583 P.2d at 876-78. tapes in and our decision affirmed his Thus, law, suppression briefing order. all 3. Of Thornton, conformity always probably been in most influential regarding participant monitoring. Dicker the Glass decision. United States In addition issue, son, 1969), (7th Coffey’s arguments the court to that F.2d 1111 Cir. evaluated application delay, gave primarily prospective concerning pre-indictment speedy to its trial violation, entrapment, holding, denial of cross-examina- but noted: (1965);5 applicability tension of de- rule to Judd fendant Glass. must an independent make case.6 decision each In Judd v. Any inevitably further line we draw (Alaska 1971),7 P.2d at 278 we noted the arbitrary. somewhat When the law guiding criteria question resolution changes, get some the benefit of of retroactivity: change, do When only others not. (a) the purpose to be served the new named defendant is covered new standards; (b) the extent the reliance rule, appeals other defendants whose raised by law enforcement authorities on the old simply same issue feel it was standards; (c) effect on the ad vagaries of the court prevent- calendar that justice ministration of a retroactive ed their being case from deci- landmark new standards. Link sion. If all eases on direct review receive 618, 636-638, letter v. benefit, those on collateral review do 1731, 14 attempts equi- not. the court to increase *4 integrated into [footnote text] ty between by increasing the coverage rule, of the new it the increases purpose the rule in is Glass to society unfairness to and law enforcement protect of Alaskans the good who in officials faith relied on the law spontaneity of discourse that marks a free as they it was when We acted. noted society. tapes ex- State, 273, Judd v. 482 P.2d potential cluded because their unreliabili- 1971): ty: any one that realizes decision will We exclude the evidence not it

[0]nce is involve an arbitrary which classification unreliable but because the transcendent particularly is not except preserved by guar- defensible values constitutional impact, greater terms of antee its then one are of societal has arrived moment at a than the starting point making use of that the neces- evidence to obtain a sary policy criminal conviction. decisions. (citation omitted). 583 P.2d at 878 require

The constitution does not that the new rules of law be retroac The purpose points quite criteria decisive- effect, Walker, tive Linkletter v. ly away application from retroactive 1731, 1737, 14 85 S.Ct. : However, previ- determining retroactivity, it is not our intent to favored. ever, disturb how- ously suppressions ordered policy evidence antic- these considerations are not extant. ipating holding today. encourage people doWe not want to disre- (citation omitted).

413 F.2d at 1117 Dickerson gard expectation law in that courts will impliedly grounds by was overruled other change change and that will be Court in Beckwith v. United Thus, retroactive. tivity when the issue of retroac- concerned, case-by-case approach is expressly overruled on oth- those particularly desirable. Linkletter v. grounds authority er on the of Beckwith in 85 S.Ct. at Fitzgerald, United States v. 545 F.2d L.Ed.2d at 608 (7th Cir. square holding nothing 5. Linkletter’s in the 7.Judd examined the retroactive effect of Chi compels application constitution California, mel v. protection equal argu- new rules answers the by appellant Aldridge. ment advanced More- 24 L.Ed.2d 124 limit which over, Aldridge, since we scope ed of warrantless searches incident dowe not need to address his alarm other We arrest. held that the rule of Chimel equal protection defendants would be denied if place taking “shall all searches protections do not receive the same after the date of Chimel June him. Earlier, 1969.” 482 P.2d in Fresneda v. 143 n. 28 stability legal continuity 6. When norms held that Chimel would be to cases application in the of such norms are core direct in this at the time Chimel protected fashioning legal review values to be rule, general promoting predict- was decided. rules of law ability rely for those who must on the rules are they acted. We stated was law when of the decisions Su- A of the Judd: dealing States preme the United Court indicates that questions from the un- problems [arise] [Practical pur- prosecuting analysis police, is the point in starting disputed fact that upon relied public have agencies of the and the' purpose pose criterion. Where law, and of the previous statements integ- related to the primarily new rule is respect for great impact that the verdict, application thereof rity society such is based the law in our to all cases. generally been extended has generally. A public acceptance digested but future can be change for the hand, other where On the interpretation of a new application is not to standard of a new constitutional by pre- accepted past conduct fact arbitrary or unreliable minimize leads us confu- judicial decisions vious ends, other retroac- but to serve findings, any theory hesitancy accept sion and been generally de- with corre- except gamesmanship one of nied. system for our whole sponding disrespect 952-53 Rutherford of laws. omitted). (footnotes

(Alaska 1971) omitted). (footnote P.2d at tape recordings The exclusion of by noting turn to the second criterion We product of warrantless mon- by law enforce- fact reliance First, itoring two functions. de- serves was reason- pre-Glass law ment officials on *5 monitoring conversa- police ters from not could able. Law enforcement officials and a citizen tions between informant ruling in to expected be foresee obtaining a warrant.8 This without first to warrants for decisions not seek and thus served deterrence function cannot be entirely rea- monitoring were occurring to police conduct applying Glass extent of good in faith. The sonable and The of the decision. second before the date intermingles with reliance enforcement rationale is criterion, the effect of retroactive the third judicial integrity which imperative justice. application on the administration requires that the courts not made complete If the rule in Glass invasions of consti- “party lawless cases retroactivity so it would rights by permitting citizens tutional negative effect already completed, governmental use of unhindered justice be sub would the administration invasions.” fruits of such States, 394 United U.S. stantial. Desist v. Sears, 912 State v. 553 22 L.Ed.2d 1976) (footnote omitted). judicial in- 89 S.Ct. (1969).9 The tegrity not undermined when state’s function is accurately police to what brief notes: conformed their actions argue We believe that we sufficient- 583 P.2d 878. ly spective 8. The that both the initial defendants pro- open protect tapes taping subsequent free and discussion in and the use of require- application of rights. the warrant their We do court invade constitutional separate ment. Further, perceive taping not the use proves argument too the defendants’ Glass ad- constitutional violations. The evil imposes a warrant a decision much. Whenever requirement, police taping of out- dresses is conversations argue that the could judicial scrutiny: province side the evidence, gath- apart initial from its use of the ering, may . law enforcement officials However, separate crite- harm. is secretly lawfully participants cause record recognize admitting ria private [with- and transcribe conversations then-existing according gathered evidence warrant], nothing prevents monitoring out a defendant, par- always not unfair law is ticularly engaged illegal persons of those ty, in activi- if the reliable. evidence displeasure, have not who have incurred Katz v. United 9. Desist held that espoused unpopular caus- conformed have U.S. es. noted, Every prospectively in to activity ease which conviction have tape resulted from recorded evidence occurring September or after 1978.13 reopened would have and examined. cases, many evidence will have been BURKE, concurs. lost, and witnesses memories faded una- WITZ, J., CONNOR, with RABINO whom vailable. J., joins, dissents. implicitly The defendants admit these con- sequences they urge only retroac- BURKE, Justice, concurring. Glass to cases today’s opinion I concur in on rehearing review at the time Glass decision.10 but wish strongly to state that I still believe Estimates from the state defend- wrongly this case was decided in the prosecution ants indicate that the of a num- place, first expressed my reasons in legal ber in currently system (Alas- dissent in 583 P.2d 872 entails conversations monitored without a ka That is now belief further warrant.11 We acknowledge that in these strengthened by of the United cases, police testify informant could States Court United States tapes. tapes may, without how- - Caceres, -, ever, bolster the testimony informant’s L.Ed.2d 733 we believe that if the prior knowledge that Glass would become RABINOWITZ, Justice, dissenting. law, and, sought could have based upon the facts most these could In Fresneda v. 143 n. authorizing obtained warrants we held that the constitu monitoring.12 penalize We decline rule tional announced Chimel Califor prosecution under those circumstances. nia, applicable

Based on ruling pend behind our to all cases decision, we conclude ing direct review this court as of the exceptions previously of the four cases I date the Chimel decision.1 am not *6 rejected involving to one case fifteen which defendants in An- distinction trespas- between chorage, fifteen sory searches and those which there was no individual twenty cases being Juneau, and five physical penetration to seven protected premises, cases handled would not be In by the application. Fairbanks Public Defender. That esti- Desist, involving monitoring court noted: mate of cases being not include cases handled by private a [T]he determination whether particular eavesdropping for basis the estimate is not attorneys. instance led to the intro- indicated in the brief. duction of tainted evidence at trial would in time-consuming most be a difficult cases 12. v. See State 881. task, which, when particularly attempted 13. We note Court of Michi long weighty after event, would impose gan Beavers, has held that the rule of v. People burden on court. any denied, 393 Mich. 227 N.W.2d 511 cert. 394 U.S. at 89 S.Ct. L.Ed.2d at 256. (1975), would not retroactive. In v. People 10. Only appellant requested Drielick, 255 N.W.2d 400 Mich. this court “purely retroactively.” cert. Coffey asks, alternative, Giass be L.Ed.2d refused pending to all cases review. appellate Beavers, warrantless prohibited of a conversation participant, transmission An 11. affidavit from Daniel W. Hickey, to a case direct at the time of Bea review state’s Prosecutor, Chief that at least states vers. forty-eight cases involve “nonconsensual par- monitoring recording and/or ticipant of state- reaching holding, 1. In this we relied on Desist ments made an individual now known to be v. 244, 255-58, United agent.” a state The affidavit was based on (1969) 1030, 1037-38, 22 to a response memorandum sent to all district (Harlan, dissenting); Linkletter throughout attorneys the state. (1965); general Schwartz, do not offer a counter- and H. Retroactivi- estimate, but the Nix and Due A Reliability, for Process: ty, Reply petition points X6 Friedman, Rice, Hed- Hoppner, R. Saul depart from the should that we

persuaded Anchorage, for land, Ingraham, & and, therefore, hold Fleischer would of Fresneda rule appellant. court on direct in this that all decision, in the Glass the date of review on Cohen, Atty., Asst. Dist. William Charles electronic issue of warrantless which the Anchorage, Balfe, Atty., Dist. Joseph D. raised, governed monitoring was Juneau, Gen., Gross, Atty. Avrum M. holdings of State by the substantive appellee. (Alaska RABINOWITZ, J., and CON- C. Before CONNOR, J., joins in the dissent. BOOCHEVER, MAT- NOR, BURKE and THEWS, JJ.

OPINION

PER CURIAM. of sale of mari- Appellant convicted SHINE, Appellant, Joseph T. In this of AS 17.12.010.1 juana in violation constitutionality of he attacks appeal Alaska, Appellee. overly STATE of statute, arguing that it “is broad and Alaska violates both the federal 4191. No. proscribes conduct constitutions Supreme Court of Alaska. protected by the which is legitimately which can be well as conduct June light of our regulated by the State.” State, 565 P.2d 179 holding in Brown v. appeal this is frivolous. See P.2d 351 also Anderson judgment of the 1977). Accordingly, the superior court is AFFIRMED. *7 present appeal Mishkin, each 33 U.Chi.L.Rev. Professor issue, fortuity

(1966). is first same of which case of that Additionally, should not be determinative decided in Fresneda v. cases.”) we observed that in the other 143 n. issue adopted rule we back to the announced dates Appellant participated in the sale of Marshall’s in United Chief Justice marijuana pounds to an undercover Cranch) Peggy, (1 Schooner States v. place prearranged in an sale took officer. The Lopez also v. Bow- L.Ed. 49 Anchorage Airport. International automobile en, (Alaska 1972) (“The 66 n. 7 $7,000. price purchase retrospec- rule on ] rationale [Fresneda several cases are where