Summary
upholding search of probationer and his vehicle for drugs, where search was authorized by probation officer after police twice called probation officer to alert her that probationer was observed in area known for drug-related activity and had committed traffic violation
Summary of this case from McGraw v. StateOpinion
Court of Appeals No. A-11025 Trial Court No. 4FA-09-3674 CR No. 6027
02-26-2014
ABDULKARIM O. ADEPOJU, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Robert John, Law Office of Robert John, Fairbanks, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Robert B. Downes, Judge.
Appearances: Robert John, Law Office of Robert John, Fairbanks, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge MANNHEIMER.
Abdulkarim O. Adepoju was stopped by the police after he ran a red light. Adepoju was on felony probation for drug offenses at the time, and the police contacted his probation officer. One of Adepoju's conditions of probation required him to submit to searches of his person, and any vehicle he occupied, for controlled substances at the direction of his probation officer. Adepoju's probation officer authorized the police to conduct a search on the probation officer's behalf.
During this search, the police discovered a pill of oxycodone in a plastic bag, and this bag contained cocaine residue. Adepoju was arrested and subsequently charged with two counts of controlled substance misconduct in the fourth-degree (one count for each drug).
Following his indictment, Adepoju asked the superior court to suppress all evidence of the drugs. Adepoju first argued that the police acted unlawfully when they contacted Adepoju's probation officer during the traffic stop. Adepoju next argued that, even if it was lawful for the police to contact the probation officer, the ensuing search was not justified by Adepoju's conditions of probation because the police officers, and not Adepoju's probation officer, were the real instigators of the search.
In the alternative, Adepoju argued that even if his probation officer made the decision to conduct the search, the search was nonetheless illegal because the probation officer did not personally communicate with Adepoju and give Adepoju advance notice of the probation officer's intention to authorize the search. And finally, Adepoju argued that even if the search was completely legal, the State could not use the evidence of Adepoju's drug possession to initiate a new criminal prosecution, but was instead limited to using this evidence in a probation revocation proceeding.
After the superior court rejected all of these arguments, Adepoju and the State agreed (1) that one of the charges against Adepoju (the cocaine charge) would be dismissed, and (2) that the remaining drug charge would be tried to the court (sitting without a jury) on stipulated facts.
The court found Adepoju guilty, and Adepoju now appeals, renewing all of his suppression arguments.
For the reasons explained in this opinion, we conclude that none of those arguments has merit, and we therefore affirm Adepoju's conviction.
Adepoju's claim that it was unlawful for the police to extend the traffic stop long enough to contact his probation officer
Generally speaking, a routine traffic stop "must be temporary and must last no longer than is necessary to effectuate the purpose of the stop". Brown v. State, 182 P.3d 624, 625 (Alaska App. 2008). Adepoju argues that, in his case, the police unlawfully prolonged his traffic stop when they took the time to contact his probation officer, apprise her of the situation, and ask her if she wanted the officers to search Adepoju for drugs.
Relying on Berkemer v. McCarty, 468 U.S. 420, 440-41 & n. 29; 104 S.Ct. 3138, 3150 & n. 29; 82 L.Ed.2d 317 (1984), and the plurality opinion in Florida v. Royer, 460 U.S. 491, 500; 103 S.Ct. 1319, 1325-26; 75 L.Ed.2d 229 (1983).
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Adepoju asserts that the police routinely contact a probation officer if they know that the person they have stopped is on probation, and he contends that this practice is illegal. But given the facts of Adepoju's case, we need not reach this issue.
As we acknowledged in Brown, the police can engage in additional investigative efforts during a traffic stop if there is reasonable suspicion to believe that the motorist is engaged in unlawful activity apart from the traffic violation. 182 P.3d at 626. As we are about to explain, the police already had reasonable suspicion (before they conducted the search) that Adepoju was involved in new drug offenses.
When the police contacted Adepoju's probation officer during the traffic stop, this was actually the second time that they spoke to the probation officer about Adepoju that day.
Over the preceding weeks, police officers assigned to the Fairbanks interagency drug task force had frequently observed Adepoju's car parked outside the same apartment in an area known for drug-related activity. The officers suspected Adepoju was dealing cocaine at that location, and they had also received information (from an informant) that Adepoju was supplying drugs to another drug dealer.
On the day of the traffic stop, one of the task force officers (Avery Thompson) contacted Adepoju's probation officer, Betty Tangeman, and informed her of the task force's suspicions. Adepoju had missed an office visit with Tangeman earlier in the week, so when the police apprised Tangeman of this information, she became concerned that Adepoju might be violating the conditions of his probation. However, Tangeman did not ask the police to search Adepoju at that time.
Later that same day, Thompson once again observed Adepoju parked at the same apartment. The officers observed Adepoju arranging "stuff" in the inner console of his vehicle, and they heard him honking his horn.
Thompson contacted another patrol officer, Dustin Stonecipher, gave him a description of Adepoju's vehicle, and asked him to keep this vehicle under surveillance. Stonecipher began following Adepoju's car. When Stonecipher saw Adepoju run a red light, he conducted a traffic stop of Adepoju's vehicle.
Thompson had informed Stonecipher that Adepoju was on probation, so when Stonecipher made the traffic stop, he immediately told his dispatcher to contact the on-call probation officer. The on-call probation officer that evening happened to be Adepoju's actual probation officer, Tangeman.
This second time, after Tangeman had been apprised of the new information, she decided to authorize the police to conduct a probation search of Adepoju's person and vehicle. Stonecipher then informed Adepoju that his probation officer had authorized a search, and the search was conducted.
Given this record, the police had a reasonable suspicion that Adepoju was engaged in drug-related activity before they called Adepoju's probation officer during the traffic stop. Thus, even if the law required the police to have reasonable suspicion of criminal activity before they contacted the probation officer, the requirement was satisfied in this case.
Adepoju's claim that his probation officer did not make an independent decision whether to conduct the search, but instead acted solely at the instigation of the police
Adepoju points out that the police contacted his probation officer to see if she wanted to authorize a search. Adepoju argues that, because events were set in motion by the police, the ensuing search was not really aimed at enforcing the conditions of Adepoju's probation, but rather was "a pretext for discovering evidence [to be used in] a narcotics prosecution."
The superior court rejected this characterization of events, and the record fully supports the superior court's conclusion.
As explained in the preceding section, the police actually spoke to Adepoju's probation officer twice that day, each time explaining their suspicions that Adepoju was engaged in new drug offenses. But the first time that the probation officer was asked whether she wanted to authorize a search (a search that was expressly allowed by Adepoju's conditions of probation), she declined.
The probation officer later authorized a search when the police contacted her a second time, during the traffic stop, and when the police provided additional information about Adepoju's activities. But the superior court was amply justified in concluding that the probation officer was acting independently in both instances.
Adepoju's claim that the search was unlawful because his probation officer never spoke with him directly
In Joubert v. State, 926 P.2d 1191, 1194 (Alaska App. 1996), this Court declared that when a defendant's conditions of probation require the defendant to submit to a search of their person or property at the direction of a probation officer, Alaska law "requires the probation officer to communicate in some way with the probationer before conducting a search."
In Adepoju's case, his probation officer never communicated directly with him before the search. Rather, the probation officer spoke to the police and authorized the search, and then the police informed Adepoju that the probation officer had directed them to conduct the search. Based on this, Adepoju argues that the search violated the rule announced in Joubert.
But the language of Joubert (quoted above) does not require direct communication between a probation officer and a probationer. Rather, Joubert requires that the probation officer "communicate in some way" with the probationer — in such a manner as to put the probationer on notice that the probation officer is invoking their authority to require the search. That requirement was satisfied in Adepoju's case: the police informed Adepoju (before conducting the search) that his probation officer had authorized the search.
Adepoju's claim that the drugs seized during the search could not be used as the basis for new criminal charges, but only for purposes of revoking Adepoju's probation
At one time, the State of Florida had a special rule regarding evidence that is discovered when probationers are searched pursuant to a condition of probation: the evidence can only be used for purposes of revoking the defendant's probation, and can not be used as the basis for new criminal charges, unless the search would otherwise have been justified absent the probation condition. See Soca v. State, 673 So.2d 24, 25 (Fla. 1996).
(The Florida constitution requires the Florida courts to construe that state's search and seizure provision in conformity with the interpretations of the Fourth Amendment adopted by the United States Supreme Court. Because of this rule, the decision in Soca was abrogated when the United States Supreme Court issued its contrary decision in United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). See Bamberg v. State, 953 So.2d 649, 652-54 (Fla. App. 2007) (acknowledging the abrogation of Soca).)
Adepoju asks this Court to adopt the former Florida rule as the law of Alaska. He argues that this new rule would be consistent with the precept that a warrantless search "must be no broader or more intrusive than necessary to fairly effect the governmental purpose which serves as its justification." Reeves v. State, 599 P.2d 727, 735 (Alaska 1979).
But the issue here is not the breadth or intrusiveness of the search. Rather, the question is whether evidence discovered during a probation search of lawful breadth and intrusiveness can be used as the basis for new criminal charges.
As Professor LaFave points out in his treatise on the law of search and seizure, there is good reason to conclude that the type of exclusionary rule proposed by Adepoju is undesirable. The social policy behind allowing corrections officials to search probationers and parolees is, in fact, related to the social benefit of detecting and preventing new crimes. Thus, the rule that Adepoju suggests "would unduly immunize parolees [and probationers] from conviction" when they have committed new offenses. Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (5th ed. 2012), § 10.10(e), Vol. 5, p. 589 & n. 263.
Alaska law already imposes restrictions on probation and parole searches, see, e.g., Roman v. State, 570 P.2d 1235, 1238-1243 (Alaska 1977), and some restrictions on the use of evidence obtained during probation and parole searches, see Sears v. State, 553 P.2d 907, 912-14 (Alaska 1976). In the absence of some reason to believe that police and corrections officers are routinely ignoring or circumventing the rules that govern their authority to conduct probation searches, or some reason to believe that the Sears limitation on the use of the resulting evidence is no longer functioning as a sufficient deterrent to the abuse of this authority, we decline to adopt the exclusionary rule proposed by Adepoju.
Conclusion
The judgement of the superior court is AFFIRMED.