Opinion
Court of Appeals No. A-9036.
October 11, 2006.
Appeal from the Superior Court, Second Judicial District, Trial Court No. 2BA-03-635 Cr, Barrow, Michael I. Jeffery, Judge.
Margi A. Mock, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
This case presents two issues, both dealing with the legality of a parole search of Christopher P. Hugo's person. Hugo argues that even when a parolee's conditions of parole authorize warrantless searches of the parolee, any such parole search must be premised on a reasonable suspicion that the parolee is currently or has recently broken the law. Hugo also argues that the parole condition in his particular case is invalid because the Parole Board failed to give him sufficient notice that it intended to impose this condition, and also failed to give him sufficient opportunity to object to it.
For the reasons explained here, we reject Hugo's first contention on the merits, and we conclude that Hugo failed to preserve the second contention for appeal.
Hugo's contention that, even when a parolee is released on condition that he submit to searches by a parole officer, any search conducted by the parole officer must be supported by reasonable suspicion that the parolee has broken the law
One of Hugo's conditions of parole was that his parole officer could search him for controlled substances without a warrant. Hugo argues that even when a parolee is released on such a condition, the parole officer nevertheless must have a reasonable suspicion that the parolee has engaged in renewed criminal activity before the parole officer conducts the authorized search. Hugo contends that even when a person's parole conditions purport to authorize warrantless searches, the Fourth Amendment to the United States Constitution requires that the parole officer have a reasonable suspicion of criminal conduct.
The United States Supreme Court recently decided this issue against Hugo. In Samson v. California, ___ U.S. ___, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), the Supreme Court held that, with the possible exception of searches that are "arbitrary, capricious[,] or harassing", the Fourth Amendment allows suspicionless searches of parolees if such searches are authorized by state law. Id., 126 S.Ct. at 2202.
Hugo alternatively argues that even if the Fourth Amendment does not require parole searches to be supported by reasonable suspicion, the Alaska Supreme Court has independently imposed a requirement of reasonable suspicion.
To support this argument, Hugo relies on the Alaska Supreme Court's decision in Roman v. State, 570 P.2d 1235 (Alaska 1977). According to Hugo, Roman holds "that even when a [parole] release condition state[s] that the individual [is] subject to a search for any reason, . . . the search must [still] be reasonable". Appellant's Opening Brief, page 11. As we explain in the next few paragraphs, this is true in the sense that the search must be conducted at a reasonable time and in a reasonable manner. But Roman does not require that parole officers have a reasonable suspicion of renewed criminal activity before they perform searches under the authority of a warrantless-search parole condition.
Roman does hold that the Parole Board must act reasonably when the Board makes its initial decision whether to impose a warrantless search condition. Specifically, Roman holds that such a decision is reasonable only if the Parole Board's authorization of warrantless searches is supported by "a reasonable nexus between the parolee's underlying offense and the condition [of parole authorizing these searches]." Roman, 570 P.2d at 1244.
In addition, Roman holds that the authority to conduct these warrantless searches must be restricted to parole officers and police officers acting at their direction; the Parole Board can not grant this authority to all police officers. Id. at 1243-44. And Roman suggests that even when a condition of parole validly authorizes warrantless searches, these searches must be conducted at reasonable times and in a reasonable manner, so as to protect parolees from undue harassment. Id. at 1242 n. 19.
But Roman does not require that the individual searches conducted under the authority of such a parole condition be supported, on each occasion, by reasonable suspicion that the parolee has engaged in new criminal behavior or has violated the conditions of parole.
Two years after Roman, in Soroka v. State, 598 P.2d 69 (Alaska 1979), the Alaska Supreme Court declared:
If the conditions of [a person's] probation [authorize] searches on demand . . ., no showing of probable cause [is] necessary. Searches authorized in connection with grants of probation or parole may be executed without the need for additional justification, as long as they are reasonably conducted and not made for purposes of harassment. Roman v. State, 570 P.2d at 1242 and n. 19.
Soroka, 598 P.2d at 71 n. 5 (citations omitted).
We addressed the relationship between Roman and Soroka in State v. James, 963 P.2d 1080 (Alaska App. 1998):
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, even when no specific condition of probation authorized the search, so long as the probation officer had probable cause to believe that the probationer had violated the terms of probation. However, the supreme court limited this common-law authority in Roman v. State. In Roman, the court held that warrantless searches of probationers and parolees would thenceforth be lawful only if the sentencing court or the Parole Board had specifically authorized warrantless searches in the conditions of the defendant's probation or parole.
In one respect, the authority to conduct warrantless searches granted in Roman is considerably broader than the common-law authority recognized in Soroka: under Soroka,
a warrantless search conducted without the benefit of a specific condition of probation had to be supported by probable cause; but under Roman, warrantless searches authorized by a condition of probation or parole could be conducted "without the probable cause necessary for [the] issuance of a search warrant". On the other hand, Roman declared that sentencing courts and the Parole Board do not have unlimited authority to impose warrantless-search conditions: rather, such conditions will be allowed only when the record establishes "a reasonable nexus" between the defendant's underlying conduct and the decision of the court or the Board to allow warrantless searches.
James, 963 P.2d at 1082 (footnotes omitted).
We recently reiterated this point in Brown v. State, 127 P.3d 837, 843 (Alaska App. 2006): when a condition of probation or parole authorizes a search upon the request of a probation or parole officer, "no particularized suspicion [is] necessary".
For these reasons, even assuming that Hugo's parole officer did not have reasonable suspicion that Hugo was engaged in new criminal activity, the parole officer's search of Hugo's person was lawful.
Hugo's claim that the Parole Board denied him due process of law by failing to give him advance notice that the Board intended to impose a warrantless-search condition, and by failing to inform him that he had the right to object to this condition
Hugo raises one additional claim in his opening brief to this Court. He argues that the Parole Board denied him due process of law by failing to give him sufficient advance notice that one of his conditions of parole would authorize warrantless searches, or by failing to give him a fair opportunity to object to this condition of parole. For the reasons we are about to explain, we conclude that Hugo did not preserve this issue for appeal.
Hugo was charged with fourth-degree controlled substance misconduct after his parole officer found a quantity of marijuana on his person. Hugo filed a motion to suppress this evidence, arguing that the parole officer's search was illegal, but the superior court denied Hugo's motion.
Later, Hugo entered a Cooksey plea of no contest to the drug charge, reserving his right to appeal the superior court's denial of his suppression motion.
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
The problem in this case arises from the fact that, in all of the discussions of Hugo's proposed Cooksey plea, neither the defense attorney nor the prosecutor nor the trial judge specified the issues to be preserved for appeal. Rather, all three of them referred simply (and repeatedly) to the fact that Hugo was reserving his right to pursue "the suppression motion" on appeal.
Accordingly, we must now examine Hugo's suppression motion to determine what issues were preserved for appeal. In that suppression motion, Hugo made three arguments:
First, Hugo argued that the parole condition authorizing searches of his person for drugs bore no reasonable relation to the facts of his offense — and thus, under Roman v. State, the Parole Board had no authority to impose this condition.
Second, Hugo argued that even though the challenged parole condition arguably bore a reasonable relation to Hugo's conduct while in prison (to wit, his drug use and suspected drug use), the supreme court's decision in Roman strictly limited parole conditions to those that are related to the inmate's underlying offense. In other words, Hugo argued that the Parole Board was prohibited from relying on an inmate's conduct in prison as an independent basis for a parole condition.
Third and finally, Hugo argued that even if the disputed parole condition was valid, Hugo's parole officer needed reasonable suspicion that Hugo was engaged in renewed criminal conduct before the parole officer could validly conduct a search under that parole condition.
Judge Jeffery agreed with Hugo's first argument (that there was no nexus between the parole condition and Hugo's original offense), but the judge disagreed with Hugo's second argument. Citing the supreme court's decision in Smith v. Department of Corrections, 872 P.2d 1218, 1225 (Alaska 1994), Judge Jeffery ruled that the Parole Board can validly rely on an inmate's conduct while in prison as a basis for a parole condition. Judge Jeffery further ruled that Hugo's "write-ups" for using marijuana while in prison provided a reasonable basis for the challenged parole condition. (Hugo does not challenge this aspect of Judge Jeffery's decision.)
Finally, Judge Jeffery agreed with Hugo that Hugo's parole officer needed reasonable suspicion to conduct the search. However, the judge found that, under the circumstances of Hugo's case, the required reasonable suspicion was present.
This would appear to resolve all of Hugo's claims. However, in his written decision, Judge Jeffery engaged in an extended discussion of whether Hugo was given adequate notice that the Parole Board was considering imposing such a warrantless-search condition of parole, and whether Hugo was given an adequate opportunity to respond to the proposed condition.
For present purposes, the important thing is that these due process issues were raised by Judge Jeffery sua sponte. They were not raised in Hugo's suppression motion, and they were never fully litigated.
(While Hugo's suppression motion was under advisement, Judge Jeffery asked the State to furnish him with documentation from Hugo's parole file, and the judge relied on this documentation when he decided that Hugo had received due process from the Parole Board. However, there was never an evidentiary hearing on the factual circumstances surrounding the Parole Board's decision to impose a warrantless-search condition on Hugo's parole release.)
In his suppression motion, Hugo never asserted that the Parole Board had imposed this condition on him without fair notice. Indeed, in his motion, Hugo told the superior court that his suppression argument was premised on the assumption that he had agreed to the challenged condition of probation:
Hugo does not dispute the fact that the warrantless search of his person and belongings was authorized . . ., nor does he dispute the fact that submission to the search was a condition of his release on parole. . . . Nevertheless, [Hugo] asserts that the search in this case was unconstitutional because there is an insufficient nexus between the offense he committed and the conditions of his parole authorizing searches on less than probable cause. These warrantless search conditions are constitutionally infirm, even though Hugo agreed to them. . . .
(Emphasis added)
After Judge Jeffery denied Hugo's suppression motion, Hugo filed a motion for reconsideration.
Because Judge Jeffery devoted so much of his decision to discussing whether Hugo received due process from the Parole Board, and because the judge appears to have based his ruling (that Hugo received due process) on his resolution of several issues of fact that were never fully litigated, one would expect Hugo to challenge this aspect of the judge's ruling if Hugo believed that, in fact, he had not received due process from the Parole Board.
But instead, Hugo presented only one argument in his motion for reconsideration: the argument that Judge Jeffery was wrong when he ruled that a condition of parole might validly be premised on an inmate's conduct in prison, as opposed to the circumstances of the inmate's original offense. Hugo never mentioned the issue of whether he received sufficient advance notice of the parole condition or an adequate opportunity to object to it. And Hugo never suggested that Judge Jeffery had drawn the wrong factual or legal conclusions from the parole file documentation the judge requested from the State.
Now, on appeal, Hugo argues that, as a factual matter, he was unaware that the Parole Board intended to impose this condition on him, and he further argues (again, as a factual matter) that he never knew that he had the right to object to the proposed condition. These arguments are raised for the first time on appeal.
Moreover, because these arguments hinge on issues of fact that Hugo never raised or asked for an opportunity to litigate, we would reject Hugo's attempt to raise these issues now even if Hugo's appeal had come to us in the normal manner ( i.e., following a conviction at trial) rather than as the result of a Cooksey plea.
For these reasons, we conclude that Hugo's attack on this aspect of Judge Jeffery's decision was not preserved for appeal.
Conclusion
The judgement of the superior court is AFFIRMED.