Opinion
Court of Appeals No. A-8088.
April 26, 2006.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mary E. Greene and Mark I. Wood, Judges. Trial Court No. 4FA-01-128 CR.
Marcia E. Holland, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Kenneth J. Diemer, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Scott J. Nordstrand, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
In an earlier opinion, we remanded this case to the superior court for additional findings on several issues. We now have received additional findings from Superior Court Judge Mark I. Wood and the supplemental memoranda from the parties. Based on the superior court's findings, we affirm the superior court's order denying Illya Brown's suppression motion. Accordingly, we affirm Brown's conviction.
Brown v. State, Alaska App. Memorandum Opinion and Judgment No. 4770 (October 8, 2003), 2003 WL 22304141.
Background facts
On January 10, 2001, Officer James O'Malley, a member of a state-wide drug enforcement unit, received a phone call from an employee of the Fairbanks Comfort Inn. The employee told O'Malley that she thought there was something suspicious going on in a room registered to Charmayne Washington, who had rented the room using photo identification. The employee became suspicious because there had been an unusual number of incoming phone calls, some from callers saying that they had been paged with the number. Also, the employee reported that a man, who was not listed on the registration card but who identified himself as Reginald Williams, called from the room to pay for another night. O'Malley checked computer records for both Williams and Washington and learned that Charmayne Washington was on probation for a drug charge and that one of several people in the database named Reginald Williams had been convicted of robbery in Anchorage in 1991.
O'Malley called Washington's probation officer, Glenn Bacon, and reported that he suspected Washington of drug activity at the hotel. O'Malley also told Bacon that Washington was in the room with someone who was known to be involved with drugs (apparently referring to the Reginald Williams with the robbery conviction). Bacon took no immediate action. O'Malley and Investigator Teague Widmier, another member of the drug unit, watched the room registered to Washington for half an hour to see if known drug users came or went, but no one entered or left. During the half-hour stakeout, six more phone calls were directed to the room from the front desk.
O'Malley called Bacon again and updated him on the stakeout. Bacon contacted his supervisor and left for the hotel to conduct a "home visit," that is an inspection of Washington's room to see if she was complying with probation conditions. Widmier contacted the federal Drug Enforcement Administration, and two DEA agents arrived at the hotel along with an investigator from the Internal Revenue Service. They joined the stakeout and waited for Bacon.
See State v. James, 963 P.2d 1080, 1081 (Alaska App. 1998).
Washington was on probation for a felony drug offense. Her probation conditions included a condition that she "[s]ubmit to a warrantless, non-consensual search . . . of [her] person, personal property, residence . . . for controlled substances and prohibited weapons, at the direction of a probation officer."
After Bacon arrived, he announced he would be the person to contact Washington. Two of the federal agents went outside to watch the room window and reported that they saw an African-American woman look out the window. (Washington is an African-American woman.) The remaining officers gathered at the door of the room registered to Washington. Bacon knocked and announced that he was Washington's probation officer and he needed to speak to her. A male voice (Brown's) replied that she was not in the room. Bacon knocked again, and again the male voice responded that she was not there. After Bacon tried a third time, Trooper O'Malley announced that they were State Troopers and told the man that he must open the door immediately or he would be arrested. O'Malley heard movement behind the door during the exchange. The man responded that she wasn't there and said he had to get dressed.
The officers attempted to open the door with a key provided by the management of the hotel, but the door was bolted. The man inside said that Washington wasn't there and asked if the officers had a warrant. Bacon responded that he was Washington's probation officer and that he didn't need a warrant. The officers heard the deadbolt unlatch, opened the door with the key, and entered the room. They forced Brown, who was near the door, onto the bed.
The only other person in the room when the officers entered was nineteen-year-old Tamerian White. The officers seized crack cocaine they saw in plain view. They also seized a crack pipe from Brown's clothing and over $4,000 in cash.
After the grand jury returned the indictment, Brown moved to suppress the evidence, arguing that the entry into the room was illegal. Superior Court Judge Mary E. Greene denied Brown's motion. Brown entered a no contest plea preserving his right to appeal the denial of the motion.
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
In our first opinion in the case, we determined that we needed additional findings to resolve the case. Because Superior Court Judge Mary E. Greene had retired, the case was assigned to Judge Wood, and Judge Wood entered the additional findings.
Was the forcible entry into the hotel room lawful?
Judge Wood found that Washington was subject to a probation condition that included her consent to a search of her residence by a probation officer. Judge Wood found that Washington's original judgment, effective February 12, 1999, contained the following language:
Submit to a warrantless, non-consensual search by a law enforcement officer of your person, personal property, residence or any vehicle in which you are found for controlled substances and prohibited weapons, at the direction of a probation officer.
The phrase "at the direction of a probation officer" was handwritten on the document. Judge Wood took judicial notice under Evidentiary Rule 202(c) of the judgment in Washington's case to establish that the handwritten addition was included in the court's judgment.
Brown argues that a supplement to Washington's probation conditions dated June 7, 2000, is the relevant document on this point. That document does not contain the handwritten addition "at the direction of a probation officer." Because this addition is not included in the supplement, Brown contends that the trial court's finding that Washington was subject to searches conducted at the direction of a probation officer is clearly erroneous. But the June 7, 2000, supplement provides that "all conditions contained in the original judgment and order filed are hereby continued unless they are expressly contrary to the modification herein." As the version of the condition contained in the supplement is not "expressly contrary" to the condition contained in the original judgment, Judge Wood did not err when he ruled that the handwritten addition was in effect.
Brown next argues that the probation condition was illegal because it had no standards of reasonableness tied to it. Alaska law allows for probation search conditions that directly relate to the crime for which the probationer was convicted. Washington was convicted of misconduct involving a controlled substance. The search condition provided for searches for controlled substances and prohibited weapons. This is precisely the sort of search condition envisioned by the Alaska Supreme Court. Brown has not shown that the probation condition was without standards.
Roman v. State, 570 P.2d 1235, 1243 (Alaska 1977).
See id. at 1242-43.
Judge Wood found that the hotel room qualified as Washington's residence, based on the totality of the circumstances. Substantial evidence supports that finding. Bacon testified that Washington had not informed Bacon that she had moved to the Comfort Inn, but Washington's behavior in the weeks leading up to the incident led Bacon to believe that Washington was "unstable." She had missed an office visit on December 20, 2000, and on December 27 she submitted a "hot UA" (a urinalysis) that tested positive for cocaine. In addition, the police had learned from the hotel employee that Washington had rented the room using photo identification. The employee became suspicious because there had been an unusual number of incoming phone calls, some from callers saying that they had been paged with the number. Also, Washington had recently lost her job under curious circumstances, and had reported a couple of different address changes, most recently to another Fairbanks hotel.
Judge Wood found that although Washington had rented the room for a short time, the fact that the room had been reserved for an additional night created a reasonable inference that she intended to remain at the Comfort Inn. Additionally, given Bacon's description of Washington's instability, and the fact that her last address was another hotel, Judge Wood found that Bacon's conclusion that Washington had changed her residence to the Comfort Inn was reasonable.
Brown argues that Washington did not know that a hotel could be a residence, as Bacon had never defined the term for her. But Washington had previously notified Bacon that she relocated to the Fairbanks Hotel, so she was aware that a hotel room could qualify as a residence. Given Bacon's concerns about Washington's instability, it was reasonable for Bacon to suspect that Washington had moved to the Comfort Inn, but had neglected to report that change of residence.
Judge Wood also concluded that Bacon had reasonable suspicion to believe that Washington had violated the conditions of her probation. Bacon testified that Washington had recently missed an appointment with him, submitted a "hot" urinalysis, lost her job, and changed her address twice. Judge Wood reasoned that under these circumstances, Bacon had reason to believe that Washington had changed residences without notifying him, a violation of her probation. Judge Wood further found that, based on the information Bacon received from O'Malley, Bacon had reasonable suspicion that Washington was in the company of a convicted felon from Anchorage. Finally, Judge Wood found that the combination of Washington's original drug conviction, her "hot" urinalysis, her multiple address changes and job loss, her possible association with a known felon, and the unusual phone calls to the room rented in her name, gave Bacon reasonable suspicion that Washington was engaged in illegal drug activity in violation of her probation.
Brown argues that any basis Bacon may have had to believe that Washington was violating her probation conditions was flawed because it was based on misinformation provided by O'Malley. Brown contends that two pieces of information O'Malley gave to Bacon were misleading — that Washington was in the room, and that she was in the company of a known felon who might have been involved with drugs.
Judge Wood found that Bacon had a reasonable suspicion that Washington was in the hotel room. Judge Greene had previously found that he "had good reason to believe that Ms. Washington was there, since it was she who was the legal possessor of the room." Judge Wood found that the room was originally rented with Washington's identification. O'Malley testified that a hotel janitor stated that he had seen the same woman who rented the room inside the room. Before the officers entered the room, the federal officers outside the window saw an African-American woman in the room. When Bacon asked if Washington was in the room, the officers told Bacon they had just seen Washington there. Bacon also testified that, despite the age difference, Tamerian White was similar in appearance to Washington. The ruling that Bacon had reasonable suspicion that Washington was in the room is supported by the evidence.
Brown also argues that the information about Reginald Williams, the man who reserved the room for the second night, was reckless. Brown presented evidence that several people named Reginald Williams were in the computer database, but only one had a felony conviction for robbery.
Considering all the other factors Judge Wood found, including Washington's recent urinalysis, her missed appointment, and her employment and housing problems combined with the heavy phone traffic directed to the hotel room she had rented, we conclude that Bacon had reasonable suspicion that Washington was in violation of her probation without including the information regarding Reginald Williams. Thus, we agree with Judge Wood that Bacon had reasonable suspicion that Washington had violated the conditions of her probation.
Judge Wood found that, under the totality of the circumstances, the entry into the hotel room was directed by Bacon. He found that when O'Malley called Bacon with information about Washington, Bacon independently evaluated that information, contacted his supervisor, and decided to attempt to contact Washington. Judge Wood found that the police and the probation officer acted independently and professionally.
Judge Wood also found that, when Bacon arrived at the Comfort Inn and met with the assembled law enforcement officers, "[e]veryone agreed that PO Bacon was the lead officer and that everyone else was there to assist him in contacting his probationer. . . ." The court found that:
implicit in the decision that the police would be assisting PO Bacon in contacting Charmayne Washington would be the individual initiative of supporting officers to render whatever assistance might be reasonably necessary to help PO Bacon achieve the objective. In that sense, when an officer took individual initiative to assist PO Bacon with his stated objective he would be acting implicitly under PO Bacon's direction.
Judge Wood further found that when O'Malley announced the presence of the state troopers and threatened arrest if the door was not opened, he was acting "on his own initiative consistent with PO Bacon's purpose and under his implicit direction." In his testimony in the initial evidentiary hearing, Brown stated that he unbolted the door in response to Bacon's statement that he was Washington's probation officer and did not need a warrant. The court found that Brown unlatched the deadbolt in response to Bacon's statement that he was a probation officer and did not need a warrant, not because of O'Malley's threat of arrest. Under the totality of the circumstances, Judge Wood found that O'Malley acted implicitly under the direction of Bacon even though he took part in the conversation at the door without an express instruction to do so.
Judge Wood's findings are supported by the record. Bacon testified that he contacted O'Malley before he left for the hotel to let him know that he planned to respond and to request the officers' assistance in that response. Upon arrival at the hotel, the officers met and agreed that Bacon would lead the contact. Bacon testified that he initiated the knocking.
Bacon testified that his primary goal was to talk with Washington — while he thought he might search the room, he could not make that decision before he spoke with her. He also testified that the first step in a field contact, for officer safety purposes, was to sweep the premises to see who was there. Bacon testified that during the initial briefing with the other officers, he stated that if there emerged evidence of new criminal activity, he would turn the scene over to the law enforcement officers. Bacon testified that he could not recall who was the first to cross the threshold, he or O'Malley, but that several officers entered the room nearly simultaneously.
Judge Wood found that Bacon's objective was to speak with Washington face-to-face, and that he had authority to search her residence without her consent. In order to achieve this contact with Washington, the door to the room needed to open. Bacon initiated the knocking and identified himself as Washington's probation officer. Judge Wood found that the other law enforcement officers were acting to assist Bacon in his goal of getting the door open so that he could talk to Washington.
In Payton v. New York, the United States Supreme Court announced that the "chief evil" that the Fourth Amendment is directed at preventing is the physical entry of the home. A warrantless entry by police into a person's residence violates the Fourth Amendment unless it falls within one of the limited exceptions to the warrant requirement. In Griffin v. Wisconsin, the Supreme Court concluded that Wisconsin's interest in operating a probation system presents "special needs" beyond normal law enforcement that justifies departures from the usual warrant and probable cause requirements.
445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980).
Id. at 585, 100 S. Ct. at 1379.
Id. at 586, 589-90, 100 S. Ct. at 1380, 1381-82.
483 U.S. 868, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987).
Id. at 873-74, 107 S. Ct. at 3168.
In Soroka v. State, the Alaska Supreme Court recognized the common-law authority of a probation officer to search a probationer's residence without a warrant as long as the probation officer had probable cause to believe that the probationer had violated the terms of probation. But the Alaska Supreme Court limited this common-law authority in Roman v. State. In Roman, the court held that warrantless searches of probationers (and parolees) were permissible only if the sentencing court (or the parole board) had specifically authorized warrantless searches in the conditions of the defendant's probation (or parole).
598 P.2d 69 (Alaska 1979).
Id. at 71.
570 P.2d 1235 (Alaska 1977).
Id. at 1243-44.
As Judge Wood found, the superior court had imposed a search condition as part of Washington's parole conditions. The evidence showed, and the superior court found, that the room at the Comfort Inn qualified as Washington's residence, and that Bacon reasonably believed that Washington was present in the room. Furthermore, based on the superior court's factual findings, we conclude that Bacon had probable cause to believe that Washington was in the room.
See Saucier v. State, 869 P.2d 483, 484 (Alaska App. 1994) ("Whether probable cause arises from the [superior court's factual findings] . . . is a purely legal issue over which we exercise our independent judgment.").
In this situation, is the probation officer entitled to enter the "residence" to initiate contact with the probationer? In Motley v. Parks, an en banc panel of the Ninth Circuit ruled that officers with probable cause to believe that the parolee is a resident may enter the residence to conduct a warrantless search pursuant to a parolee's search condition. Motley had resided at her apartment with a boyfriend, Jamerson, who was released on parole with a standard parole condition that he consent to a search of his residence. When officers showed up at Motley's door demanding to enter to search Jamerson's residence, Motley accurately told the officers that Jamerson had been returned to custody weeks earlier on an apparent parole violation. The officers forcibly entered the residence over Motley's objection and searched for Jamerson.
432 F.3d 1072 (9th Cir. 2005).
Id. at 1079.
Id. at 1075.
Id. at 1076.
Id.
The court held that, under the Fourth Amendment, officers acting under authority of the parole condition that authorized a search had the authority to enter and search a residence that the officers had probable cause to believe was the parolee's residence.
Id. at 1079.
In this case, the superior court's findings support the conclusion that Bacon had probable cause to believe the Comfort Inn room was Washington's residence and that Washington was present. These circumstances gave Bacon reason to question the validity of Brown's assertion that Washington was not present. Because Washington was subject to a probation condition authorizing a search of her residence, Bacon was authorized to enter the residence in an attempt to contact his probationer. Because the officers were entitled to enter the hotel room, they were entitled to seize evidence that was in plain view.
Conclusion
The judgment of the superior court is AFFIRMED.