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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ALEX TRENTON BELTZ,
Court of Appeals No. A-13742
Petitioner, Trial Court No. 4FA-19-03522 CR
v.
O P I N I O N
STATE OF ALASKA,
Respondent.
STATE OF ALASKA,
Court of Appeals No. A-13775
Petitioner, Trial Court No. 3KN-20-00750 CR
v.
LESLI RENEE RICHARDSON,
Respondent. No. 2780 - June 7, 2024
Petitions for Review from the Superior Court, Fourth Judicial
District, Fairbanks, Paul R. Lyle, Judge, and Third Judicial
District, Kenai, Lance Joanis, Judge.
Appearances: Nico Ambrose (petition) and Megan R. Webb
(briefing and oral argument), Assistant Public Defenders, and
Samantha Cherot, Public Defender, Anchorage, for Petitioner
Beltz. Ann B. Black, Assistant Attorney General, Office of
Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney
----------------------- Page 2-----------------------
General, Juneau, for Respondent (A-13742), and Petitioner (A-
13775). Michael Horowitz, Law Office of Michael Horowitz,
Kingsley, Michigan, under contract with the Office of Public
Advocacy, Anchorage, for Respondent Richardson.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge ALLARD, writing for the Court.
Judge WOLLENBERG, concurring.
A person commits thecrimeofsecond-degree promoting contraband under
AS 11.56.380(a) if the person (1) "introduces, takes, conveys, or attempts to introduce,
take, or convey contraband into a correctional facility" or (2) "makes, obtains, possesses,
or attempts to make, obtain, or possess anything that person knows to be contraband
while under official detention within a correctional facility." Second-degree promoting
contraband is a class A misdemeanor, but the crime is elevated to first-degree promoting
contraband under AS 11.56.375(a) - a class C felony - if the contraband is, inter alia ,
a controlled substance. In these consolidated petitions for review, we are called upon to
construe the promoting contraband statutes in the context of arrestees who were found
to possess contraband while being booked into a correctional facility.
After correctional officers found drugs on their persons during the booking
process following their arrests, Alex Trenton Beltz and Lesli Renee Richardson were
1
charged with unlawful possession of controlled substances.
They were also separately
2
indicted on the felony crime of promoting contraband in a correctional facility. Beltz
and Richardson moved to dismiss the promoting contraband charges, arguing that the
State had failed to establish that they acted voluntarily in bringing drugs into the
1 AS 11.71.050(a)(4) and AS 11.71.040(a)(12), respectively.
2 AS 11.56.375 & AS 11.56.380.
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----------------------- Page 3-----------------------
correctional facilities. In Beltz's case, the Fairbanks superior court denied the motion;
in Richardson's case, the Kenai superior court granted the motion and dismissed the
charge.
In these consolidated petitions for review, the parties dispute what
"voluntary act" is required to establish criminal liability under the promoting contraband
statute for arrestees who are brought to a correctional facility. Beltz and Richardson
argue that, for purposes of Alaska's promoting contraband statute, an arrestee must take
an affirmative step to hide contraband on their person at a point when they know they are
likely going to jail. The State, meanwhile, asserts that an arrestee's failure to terminate
possession of contraband after being given an opportunity to do so is sufficient to
establish a voluntary act.
For the reasons explained in this opinion, we hold that an arrestee commits
the "voluntary act" required by the promoting contraband statute when the arrestee has
actual notice or is otherwise aware that maintaining possession of contraband in the
correctional facility constitutes a separate criminal offense and, after being given an
opportunity to terminate possession, continues to conceal illegal drugs.
In light of this holding, and the facts of each case as presented to the
superior court, we reverse the denial of the promoting contraband charge in Beltz's case,
and we affirm the dismissal of the promoting contraband charge in Richardson's case.
Why we conclude that an arrestee acts voluntarily in introducing
contraband into a correctional facility when the arrestee is given an
opportunity to terminate their possession of illegal drugs and fails to do so,
despite knowledge that promoting contraband is an additional offense
Under Alaska law, "The minimal requirement for criminal liability is the
performance by a person of conduct that includes a voluntary act or the omission to
- 3 - 2780
----------------------- Page 4-----------------------
3
perform an act that the person is capable of performing." A "voluntary act" is defined
as "a bodily movement performed consciously as a result of effort and determination"
- and it "includes the possession of property if the defendant was aware of the physical
4
possession or control for a sufficient period to have been able to terminate it."
The voluntariness of a defendant's conduct is an implicit element of all
crimes.5
If a defendant actively disputes voluntariness, the defendant is entitled to a jury
instruction on this defense, and the State must prove the element of voluntariness beyond
6
a reasonable doubt. A defendant raising a claim of involuntariness "seeks to challenge
7
the State's proof of the actus reus of the crime, rather than the defendant's mental state."
That is, "the defendant intends to argue that there is reasonable doubt as to the
8
voluntariness of his acts (as that term is defined under criminal law)."
The parties in this case agree that there must be some voluntary act
underlying the promoting contraband charge - and they also generally agree that an
arrestee's act of promoting contraband cannot be considered "voluntary" under Alaska
law unless the arrestee, at a minimum, has a meaningful opportunity to surrender the
contraband.9
But the parties disagree as to the scope of the "voluntary act" that an
arrestee must engage in to be liable for bringing contraband into a correctional facility.
3 AS 11.81.600(a).
4 AS 11.81.900(b)(68).
5 See, e.g., State v. Simpson, 53 P.3d 165, 169 (Alaska App. 2002); Palmer v. State, 379
P.3d 981, 989 (Alaska App. 2016).
6 See Simpson, 53 P.3d at 169; Palmer, 379 P.3d at 989.
7 Palmer, 379 P.3d at 989.
8 Id.
9 See AS 11.81.900(b)(68).
- 4 - 2780
----------------------- Page 5-----------------------
As we noted above, subsection (a)(1) of Alaska's promoting contraband
statute precludes a person from "introduc[ing], tak[ing], convey[ing], or attempt[ing] to
10
introduce, take, or convey contraband into a correctional facility."
On appeal, Beltz
and Richardson argue that arrestees do not act voluntarily within the meaning of this
provision unless they take affirmative steps to conceal contraband when they know they
are likely going to jail.
In support of their position, Beltz and Richardson rely on the minority view
among courts. The leading case reflecting this minority view is the Oregon Court of
11
Appeals's decision in State v. Tippetts. In Tippetts, the defendant was arrested and
brought to the jail, where an officer asked him whether he had any knives, needles, or
12
drugs.
The officer searched the defendant and found a bag of marijuana that the
13
The defendant was charged with Oregon's equivalent of
defendant had not disclosed.
14
promoting contraband.
During trial, the defendant moved for a judgment of acquittal, arguing that
no reasonable jury could find that he had acted voluntarily because, following his arrest,
10 AS 11.56.380(a)(1). We note that the State actually charged Beltz and Richardson
under both theories of promoting contraband. See AS 11.56.380(a)(1)-(a)(2). Beltz and
Richardson contend that they should only be charged under subsection (a)(1). We tend to
agree with Beltz and Richardson, and the concurrence, that arrestees are properly charged
under subsection (a)(1), but we need not directly address this point given our resolution of
these petitions.
11 State v. Tippetts, 43 P.3d 455 (Or. App. 2002).
12 Id. at 456.
13 Id.
14 Id. (citing Or. Rev. Stat. § 162.185(1)(a)).
- 5 - 2780
----------------------- Page 6-----------------------
15
he could not avoid taking drugs into jail. The trial court denied the motion, reasoning
that the defendant could have avoided the charge by simply admitting to possessing
16
controlled substances before the officers discovered the drugs.
17
The court held
The Oregon Court of Appeals reversed the conviction.
that, to support a conviction for supplying contraband under these circumstances, the
State needed to prove "(1) that [the] defendant either initiate[d] the introduction of
contraband into the jail or cause[d] it to be introduced and (2) that he d[id] so
18
consciously."
The court reasoned that the defendant "did not initiate the introduction
of the contraband into the jail or cause it to be introduced in the jail. Rather, the
contraband was introduced into the jail only because the police took [the] defendant (and
19
the contraband) there against his will."
The Oregon court acknowledged that an arrestee could potentially be liable
for introducing contraband into a correctional facility but only under limited
circumstances - i.e., where the involuntary act was "a reasonably foreseeable or likely
15 Id.
16 Id.
17 Id. at 460.
18 Id. at 457.
19 Id. The Oregon Court of Appeals has extended this logic to charges brought under
the other subsection of Oregon's contraband statute - i.e., to a person "confined in a
correctional facility" who is charged with knowingly possessing contraband. See State v.
Gotchall, 43 P.3d 1121, 1122 (Or. App. 2002) (per curiam) ("If [the] defendant did not
voluntarily introduce contraband into the correctional facility, we do not see how, on these
facts, she could voluntarily possess that contraband once she was confined in the facility.");
see also Or. Rev. Stat. § 162.185(1)(b).
- 6 - 2780
----------------------- Page 7-----------------------
20
consequence of the voluntary act on which the state seeks to base criminal liability."
Because the State did not dispute that the defendant's involuntary transport to jail was
an intervening cause of the drugs being introduced into jail, and because, according to
the court, "no reasonable juror could find that the introduction of contraband into the jail
was a reasonably foreseeable consequence of possessing it," the court concluded that the
State presented insufficient evidence to establish that the arrestee voluntarily introduced
21
drugs into the jail.
Two other states have reached conclusions consistent with this minority
view. Both New Mexico and Washington have held that a person must enter jail
voluntarily in order to commit the voluntary act sufficient to establish liability for
22
carrying or possessing a controlled substance in jail.
20 Tippetts, 43 P.3d at 459-60 (citing Model Penal Code § 2.01, 120 (Tentative Draft
No. 4 1955)); see State v. Thaxton , 79 P.3d 897, 900 (Or. App. 2003) (upholding contraband
conviction when the defendant stuffed marijuana in his sock at a time when he knew that
officers were likely to arrest him and take him to jail, and thus "putting the marijuana in the
sock was a voluntary act directed toward introducing the contraband to the jail").
21 Tippetts, 43 P.3d at 459-60; see also State v. Gonzalez, 71 P.3d 573, 574 (Or. App.
2003) (per curiam) (holding that "mere possession of drugs when [the defendant] was taken
by police to a correctional facility is not legally sufficient to prove that he voluntarily
introduced contraband into that facility . . . even if, as the state argues, defendant's arrest and
the discovery of the drugs were 'readily foreseeable consequences' of his prearrest conduct."
(citing State v. Delaney, 71 P.3d 93 (Or. App. 2003) (per curiam))); State v. Ortiz-Valdez,
79 P.3d 371, 373 (Or. App. 2003) (concluding no criminal liability where "defendant merely
passively continued to possess drugs that were in his possession beforehand" and "did
nothing affirmatively or consciously to take possession of the drugs or hide them on his
person at a point that he knew that he was likely going to jail").
22 See State v. Cole, 164 P.3d 1024, 1027 (N.M. App. 2007) (holding, that to be guilty
of "bringing contraband into a jail," a person must "enter the jail voluntarily," and it is "of
no moment" that the defendant "could have avoided the charge . . . by admitting to the
(continued...)
- 7 - 2780
----------------------- Page 8-----------------------
But the vast majority of courts reject this approach in favor of a different
conception of the necessary "voluntary act." The Idaho Supreme Court's decision in
23
State v. Gneiting is representative of this majority view.
In Gneiting, the defendant was
24
The arresting
arrested for possessing controlled substances and drug paraphernalia.
officer "asked [the defendant] multiple times whether she had anything illegal on her and
warned her that if she took illegal items into the jail, she would receive an additional
25 26
charge."
The defendant denied possessing anything illegal. During a strip search,
27
however, officers found methamphetamine on the defendant's person.
The State charged the defendant with, among other things, felony
28
possession of contraband within a correctional facility. After a jury found her guilty
of possessing contraband, the defendant appealed, arguing that the State had failed to
29
prove that she voluntarily brought contraband into a correctional facility.
TheIdahoSupremeCourt rejected this claim. Thecourtsurveyed decisions
from other jurisdictions and noted that, under the majority view, "an arrestee, having
22 (...continued)
booking officer that he possessed marijuana"); State v. Eaton, 229 P.3d 704, 706
(Wash. 2010) (en banc) (holding that a sentence enhancement for possession of a controlled
substance in a jail required a finding that the defendant "took a volitional act to place
himself" in the jail).
23 State v. Gneiting, 468 P.3d 263 (Idaho 2020).
24 Id. at 265.
25 Id.
26 Id.
27 Id.
28 Id.
29 Id. at 265-66.
- 8 - 2780
----------------------- Page 9-----------------------
been advised that bringing an illegal substance into a correctional facility will constitute
a separate offense, makes a voluntary choice to possess the contraband within the
correctional facility when she continues to conceal, or fails to disclose, the contraband
30
on her person." The Idaho court adopted this interpretation of law, ruling that the
defendant's possession of drugs within the jail was voluntary because she made the
choice to continue possessing drugs even after being provided multiple opportunities to
31
give up the contraband.
The court also rejected the defendant's claim that any "choice" she had to
relinquish her possession of the drugs was not truly voluntary since it would have
required her either to incriminate herself by admitting to drug possession or remain silent
and risk ultimately being charged with possessing contraband: "[H]aving to make a
difficult choice regarding whether to invoke the right to remain silent does not violate
32
the Fifth Amendment."
At least eleven other courts have reached the same, or a similar,
33
conclusion.
30 Id. at 267-70.
31 Id. at 268-70.
32 Id. at 270-71.
33 See, e.g., Barrera v. State, 403 P.3d 1025, 1027-29 (Wyo. 2017) (finding that a
defendant acted voluntarily where the defendant was advised that bringing contraband into
a detention facility would constitute a felony and the defendant denied possessing such
contraband); State v. Cargile, 916 N.E.2d 775, 777 (Ohio 2009) (noting that the defendant
"affirmatively concealed the drugs by stating to the arresting officer that he did not possess
anything . . . despite the warning [the defendant] received that if he brought drugs into the
detention facility he would be committing a felony"); Taylor v. Commonwealth, 313 S.W.3d
563, 565 (Ky. 2010) (holding that a defendant committed a voluntary act when, despite being
warned of possible felony charges and having an opportunity to dispose of contraband, the
(continued...)
- 9 - 2780
----------------------- Page 10-----------------------
In advocating against this majority approach, Beltz and Richardson focus
on the potential unfairness of requiring arrestees who possess illegal drugs to essentially
incriminate themselves in order to avoid prosecution for promoting contraband. Beltz
also asserts that requiring arrestees to voluntarily reveal any illegal controlled substances
33 (...continued)
defendant did not disclose the presence of contraband before entering a detention center);
Brown v. State , 89 S.W.3d 630, 631-32 (Tex. Crim. App. 2002) (en banc) (noting that
defendants were informed that "they needed to tell [the deputy] about any contraband that
was possessed, such as drugs or weapons, before they stepped inside the jail"); State v.
Alvarado , 200 P.3d 1037, 1042 (Ariz. App. 2008) (holding that a defendant's voluntary act
was established by "both the arresting officer and the detention officer inform[ing the]
defendant of the consequences of bringing contraband into the jail and [giving] him an
opportunity to surrender any contraband"); People v. Low, 232 P.3d 635, 638 (Cal. 2010)
(holding that a defendant acted voluntarily when he was given "advance warning" of
California's promoting contraband statute but "violated its terms despite ample opportunity
to avoid doing so"); State v. Winsor, 110 S.W.3d 882, 888 (Mo. App. 2003) (holding that a
defendant committed the voluntary act of promoting contraband by choosing to enter the jail
while in possession of a controlled substance despite being informed that "bringing a
controlled substance onto the premises of the county jail constituted a felony"); Herron v.
Commonwealth, 688 S.E.2d 901, 906 (Va. App. 2010) (holding that a defendant committed
the requisite voluntary act when the defendant failed to disclose contraband despite being
provided an opportunity to do so and "advised of the consequences of bringing drugs into the
jail"); Baker v. State, 208 N.E.3d 626, 641 (Ind. App. 2023) (holding that a defendant was
informed of the consequences of possessing contraband in a jail but ignored that warning and
thus committed a voluntary act); People v. McClintic, 484 P.3d 724, 728 (Colo. App. 2020)
(concluding no voluntary act where the defendant "neither concealed nor attempted to
conceal her [contraband], but . . . voluntarily gave it to the police" during the booking
process); State v. Carr, 2008 WL 4368240, at *5 (Tenn. Crim. App. Sept. 26, 2008)
(unpublished) (concluding that the defendant acted voluntarily because, "after being advised
of the consequences of bringing drugs into the jail, the [defendant] consciously chose to
ignore the officers' warnings, choosing instead to enter the jail in possession of
[contraband]").
- 10 - 2780
----------------------- Page 11-----------------------
they may possess in order to avoid being prosecuted for promoting contraband presents
34
the same sort of unconstitutional dilemma presented in Gudmundson v. State.
The defendants in Gudmundson were hunters who killed a Dall sheep in an
35
After illegally killing the sheep, they
area that was closed to hunting for that species.
36 If they left the sheep where it was, they would be
were left with a "cruel dilemma."
guilty of wanton waste (AS 16.30.010(a)); if they brought it with them, they would be
guiltyoftransporting illegally taken game(5AlaskaAdministrativeCode92.140).37 The
hunters chose to leave the sheep and were subsequently prosecuted for, and convicted
of, wanton waste.38 Thesupremecourt vacated their convictions, agreeing with themthat
substantive due process was violated because the relevant statute and regulation created
irreconcilable duties after illegally taking game.39
But as the State points out, arrestees like Beltz and Richardson are not faced
with committing a new offense no matter what choice they make. Rather, an arrestee
who possesses an illegal controlled substance on their person commits a crime (the crime
of possession) before ever entering a correctional facility. The arrestee commits an
additional crime only by choosing to maintain possession after becoming aware that
introducing contraband into a correctional facility constitutes a separate offense. If the
34 Gudmundson v. State, 822 P.2d 1328 (Alaska 1991).
35 Id. at 1328; see also 5 Alaska Administrative Code 80.300(B) (repealed 1989)
(prohibiting taking game in a closed area).
36 Gudmundson, 822 P.2d at 1329 (quoting Gudmundson v. State, 763 P.2d 1360, 1361
(Alaska App. 1988)).
37 Id. at 1332-33.
38 Id. at 1329.
39 Id. at 1333.
- 11 - 2780
----------------------- Page 12-----------------------
40
arrestee relinquishes the drugs, the arrestee is not committing a new offense at all. We
therefore agree with the State that arrestees do not face the same "cruel dilemma" that
the defendants in Gudmundson faced.41
We also agree with the majority of courts that have held that the privilege
againstself-incrimination does not precludecriminal liabilityfor failing torelinquish any
contraband on one's person. As these courts have explained, the statutes criminalizing
promoting contraband punish the act of failing to surrender contraband, not the right to
42
remain silent.
Moreover, an arrestee has no legal right to possess contraband in a
correctional facility. As the Alaska Supreme Court has similarly recognized, the Fifth
Amendment does not protect a defendant's decision to lie, nor does it create "a privilege
43
We have previously rejected arguments that statutes criminalizing
to commit a crime."
acts like refusal to submit to a breath test violate the privilege against self-
40 See Greinier v. State, 23 P.3d 1192, 1196 (Alaska App. 2001) (rejecting defendant's
argument that her conviction was the result of a due process dilemma similar to that in
Gudmundson, when defendant was not faced with inevitably committing a new crime but
rather providing statements that could conceivably be used to prove her complicity in a
previous crime).
41 See Wing v. State, 268 P.3d 1105, 1109-10 (Alaska App. 2012) (explaining that a
defendant is not unconstitutionally forced to commit a new crime when choosing between
providing a breath sample and refusing to submit to a breath test because the breath test
merely obtains evidence of whether a driver is or is not already above the statutory limit).
42 See, e.g., State v. Gneiting, 468 P.3d 263, 271 (Idaho 2020) (explaining that the
invocation of the right to silence does not "prevent law enforcement from searching an
arrestee who has been brought into a correctional facility"); State v. Cargile, 916 N.E.2d 775,
777-78 (Ohio 2009); Taylor v. Commonwealth, 313 S.W.3d 563, 566 (Ky. 2010).
43 Webb v. State, 580 P.2d 295, 302 (Alaska 1978) (quoting State v. Falco, 292 A.2d 13,
21 (N.J. 1972)).
- 12 - 2780
----------------------- Page 13-----------------------
44
incrimination. We find persuasive the views of several courts that have addressed the
issue of whether premising liability for promoting contraband on a defendant's refusal
to disclose possession of it and concluded that such a choice, though difficult, does not
violate a defendant's privilege against self-incrimination when the choice is made with
awareness of the legal consequences of that refusal. 45
Thatsaid,werecognizetheinherent unfairness ofadvising arrestees oftheir
Miranda rights and then expecting them to subject themselves to possible prosecution
by voluntarily relinquishing any illegal drugs they may possess. The Alaska Supreme
Court has recognized a similar potential unfairness in the context of refusal to submit to
a breath test. In Graham v. State, the supreme court acknowledged the risk that an
arrestee could erroneously believe that the rights contained in the Miranda warning
apply to the breath test and that their right to silence includes their right to refuse a breath
46
test.
The court therefore held that, if a person arrested for driving under the influence
appears confused about their rights, "the officer must clearly advise that person that the
44 See, e.g., Leslie v. State , 711 P.2d 575, 578 (Alaska App. 1986); Svedlund v.
Anchorage , 671 P.2d 378, 381 (Alaska App. 1983); see also Palmer v. State, 604 P.2d 1106,
1109 (Alaska 1979).
45 See, e.g., Cargile, 916 N.E.2d at 777-78 (noting that the Fifth Amendment does not
confer a privilege to lie or be protected from making difficult choices regarding whether to
remain silent); Taylor, 313 S.W.3d at 566 (recognizing that "a number of courts have rejected
the notion that there is a right to be protected from having to make difficult choices regarding
whether to invoke the Fifth Amendment right against self-incrimination"); People v. Low,
232 P.3d 635, 649 (Cal. 2010) (explaining that "[t]he Fifth Amendment privilege against
self-incrimination does not remove every difficult choice 'of the guilty suspect's own
making'" (quoting Brogan v. United States, 522 U.S. 398, 404 (1998))).
46 See Graham v. State, 633 P.2d 211, 214-15 (Alaska 1981).
- 13 - 2780
----------------------- Page 14-----------------------
47
rights contained in the Miranda warning do not apply to the breathalyzer examination."
As a result of the supreme court's decision in Graham, breath test advisories now contain
an explicit warning that the right to remain silent does not include the right to refuse the
48
breath test.
Although we believe that a similar advisory may be appropriate in the
context of arrestees facing potential promoting contraband charges, we do not mandate
it in this case.49
We do however require, as a matter of due process, that the defendant
have notice or be otherwise aware that promoting contraband is an additional offense,
separate from the offense of mere possession. Such knowledge ensures that the
defendant is making a knowing and voluntary decision when they fail to terminate their
possession of illegal drugs when given the opportunity to do so. We note that the easiest
way to accomplish such notice is through the use of affirmative warnings prior to or
47 Id. at 215.
48 See, e.g., Rask v. State, 404 P.3d 1236, 1240-42 (Alaska App. 2017) (discussing the
manner in which a defendant may be notified that refusing to submit to a breath test
constitutes a crime); Olson v. State, 260 P.3d 1056, 1058, 1064 (Alaska 2011) (reversing and
remanding for a defendant to show that they were prejudiced by an incorrect warning
regarding the consequences of refusing a breath test); Fee v. State, 825 P.2d 464, 467 (Alaska
App. 1992) (reversing a defendant's conviction for refusal to submit to a chemical test
because the defendant "was not clearly advised that his Miranda rights" did not protect his
refusal to submit to chemical testing); Bodey v. State, 2009 WL 929434, at *2 (Alaska App.
Apr. 8, 2009) (unpublished).
49 We note in this context that the purpose of the promoting contraband statute of
keeping prohibited items out of correctional facilities is best served by encouraging people
to relinquish their contraband, rather than simply increasing criminal exposure for those
caught with prohibited items in the booking process. See Rask, 404 P.3d at 1242 (Suddock,
J., concurring) (encouraging the State to revise its breath test warning based on proven
techniques for writing effective warnings because doing so will likely decrease the number
of breath test refusals).
- 14 - 2780
----------------------- Page 15-----------------------
during the booking process. A review of case law from other jurisdictions demonstrates
50
that such warnings are standard in many jurisdictions.
But the lack of affirmative
warnings in a given case is not necessarily dispositive, as the requisite awareness may
be proven through other evidence, including but not limited to, a defendant's pre- and
post-arrest conduct and statements.
In its briefing, the State relies heavily on a decision by the North Carolina
51
Court of Appeals, State v. Barnes. Although sometimes characterized as part of the
"majority" approach, Barnes is distinguishable from the other cases in the majority
approach because it does not include any warnings or require that the defendant have a
meaningful opportunity to voluntarily relinquish anyillegaldrugsthey may haveon their
50 See, e.g., State v. Cole, 164 P.3d 1024, 1025, 1027 (N.M. App. 2007) (noting that
defendant was provided with a form explicitlywarning him about the consequences of failing
to disclose contraband, though nevertheless adopting the minority position that a defendant
brought to a correctional facility while under arrest does not commit a voluntary act); State
v. Alvarado , 200 P.3d 1037, 1038-39 (Ariz. App. 2008) (noting that both a police officer and
detention officer warned defendant of the consequences of introducing contraband into a
jail); Cargile, 916 N.E.2d at 776 (noting that the defendant was twice warned that he should
disclose any drugs or weapons because bringing such items into the jail could be charged as
a felony); Barrera v. State, 403 P.3d 1025, 1028-29 (Wyo. 2017) (explaining that "courts
adopting the majority position [regarding the voluntary act of introducing contraband] focus
on a choice made by arrestees after they have been advised that a failure to disclose they were
carrying drugs prior to entering a jail would result in a felony prosecution"); State v.
Gneiting, 468 P.3d 263, 270 (Idaho 2020); Taylor, 313 S.W.3d at 565; Brown v. State,
89 S.W.3d 630, 631-32 (Tex. Crim. App. 2002) (en banc); Low , 232 P.3d at 638; State v.
Winsor, 110 S.W.3d 882, 888 (Mo. App. 2003); Herron v. Commonwealth, 688 S.E.2d 901,
906 (Va. App. 2010); Baker v. State, 208 N.E.3d 626, 641 (Ind. App. 2023); State v. Carr,
2008 WL 4368240, at *5 (Tenn. Crim. App. Sept. 26, 2008) (unpublished).
51 State v. Barnes, 747 S.E.2d 912 (N.C. App. 2013), aff'd, 756 S.E.2d 38 (N.C. 2014).
- 15 - 2780
----------------------- Page 16-----------------------
52
person. Instead, Barnes relies solely on the act of possession as the necessary voluntary
53
act.
In other words, a defendant is guilty of promoting contraband under North
Carolina law if the defendant's original possession was voluntary, even though the
defendant could not have foreseen at that time that they would be arrested and then
54
involuntarily transported to a correctional facility.
We disagree with this reasoning, as do the majority of courts included in
the "majority" approach. As the Wyoming Supreme Court noted, "[C]ourts adopting the
majority position focus on a choice actually made by arrestees after they have been
advised that a failure to disclose they were carrying drugs prior to entering a jail would
55
result in a felony prosecution." We agree with Wyoming and the other majority courts
that the voluntary act that is the basis for imposing criminal liability for promoting
contraband rests on the defendant's conscious decision to maintain possession of their
illegal drugs in the correctional facility despite their knowledge that failing to relinquish
their drugs will constitute the additional crime of promoting contraband.
52 Id. at 920-21; see also Gneiting, 468 P.3d at 268 (listing Barnes among the majority
approach).
53 Barnes, 747 S.E.2d at 920. Under North Carolina law, simple possession of a
controlled substance is a lesser included offense of North Carolina's "possession of a
controlled substance in a penal institution or local confinement facility" statute, meaning that
a defendant cannot be convicted of both crimes. Id. at 922. We have held that under Alaska
law, however, mere possession of a controlled substance is not a lesser included offense of
promotion of contraband, and that a conviction for both does not violate the prohibition on
double jeopardy. See Lampkin v. State, 141 P.3d 362, 364, 366 (Alaska App. 2006).
54 Barnes, 747 S.E.2d at 920-21.
55 Barrera, 403 P.3d at 1028-29 (interpreting the Wyoming statute consistently with the
majority view).
- 16 - 2780
----------------------- Page 17-----------------------
With these principles in mind, we now turn to the specific facts of Beltz's
and Richardson's cases.
Why we reverse the denial of Beltz's motion to dismiss his indictment
Beltz was arrested for trespassing after he entered a stranger's apartment
in an effort to avoid the police who were responding to a call about juveniles smoking
drugs at an apartment complex.
The arresting officer later testified at the grand jury hearing that when she
placed Beltz in handcuffs, she saw syringes sticking out of his pocket. Beltz also gave
56
the arresting officer a fake name when he was arrested.
The officer subsequently
transported Beltz to the Fairbanks Correctional Center (FCC) for booking.
Later in the grand jury proceeding, a grand juror asked the arresting officer
if she had asked Beltz if he had any drugs on him. The officer responded as follows:
What I normally do when someone is handcuffed is I go
through a whole spiel where I ask them do you have [a]
weapon[?] . . . Do you have anything that's going to poke
me or stick me[?] Do you have anything that's going to get
you in trouble at the jail[?] Usually I do that as soon as
handcuffs go on. Now in this situation - because it was up
in the apartment - I know I didn't do it then. I don't recall
if I gave him that exact spiel after I had officially arrested him
for . . . a different crime. I can say that I normally do that.
However, upon entering FCC, there is a warning sign
prohibiting weapons, controlled - or I think it's weapons
and other chemical substances.
56 Beltz was later identified at Fairbanks Correctional Center after a correctional officer
recognized him from "prior contacts" he had with Beltz. (Beltz has a very distinctive neck
tattoo.)
- 17 - 2780
----------------------- Page 18-----------------------
After Beltz arrived at FCC, he was strip searched. During the strip search,
Beltz pulled a red packet off the bottom of his right foot and swallowed it. The officer
subsequently found white packets - later determined to be buprenorphine - between
Beltz's butt cheeks.
The correctional officer who strip searched Beltz testified at the grand jury
hearing that, when he asked Beltz what was in the packets, Beltz stated that the red one
contained "just pieces of cotton that people use to filter their heroin before they shoot it."
Beltz stated that the white packets contained "something along the lines of Suboxone . . .
just to help him not feel as sick as he began to detox off of whatever he ha[d] been
taking."
The grand jury indicted Beltz for first-degree promoting contraband based
57
on his possession of the buprenorphine. Beltz was also separately charged with two
misdemeanor counts of fifth-degree misconduct involving controlled substances for
possessing the syringes and the buprenorphine, as well as one count of false
information.58
Beltz moved to dismiss the indictment, arguing that the State did not show
that he had acted voluntarily within the meaning of the statute because he was
involuntarily brought to the jail. He also contended that the charges violated due process
and punished him for exercising his right against self-incrimination.
A Fairbanks superior court judge denied Beltz's motion.
Having reviewed the grand jury record in light of the clarification provided
in this opinion, we conclude that the evidence presented to the grand jury failed to
57 AS 11.56.375(a)(3).
58 AS 11.71.050(a)(4) and AS 11.56.800(a)(1)(B)(i), respectively.
- 18 - 2780
----------------------- Page 19-----------------------
59
establish that Beltz committed the requisite voluntary act of promoting contraband.
Despite the odd location of the buprenorphine, there was no evidence that Beltz was
aware that he was going to be arrested and that he concealed the drugs with the purpose
of trying to smuggle the drugs into a correctional facility. Nor is there clear evidence
that he continued to maintain possession of the illegal drugs despite knowing that
promoting contraband was an additional crime that was separate from mere possession.
Indeed, it does not appear that Beltz was ever given a meaningful opportunity to
voluntarily relinquish the drugs prior to the strip search. The arresting officer could not
remember whether she had warned Beltz about taking drugs into the correctional facility
and there was no evidence that any of the correctional officers had ever discussed the
matter with him.
We acknowledge that the arresting officer testified that there was a sign
outside the correctional facility that could have alerted Beltz to the fact that it was a
crime to possess drugs while in a correctional facility, and we acknowledge that such a
sign should be sufficient to establish the requisite mens rea on the part of visitors to a
correctional facility who are charged with promoting contraband. But we conclude that
such a sign is not alone sufficient in the context of arrestees who are very differently
situated than visitors. Whereas a visitor voluntarily comes to the facility and can easily
avoid "introduc[ing], tak[ing], [or] convey[ing]" contraband into a correctional facility
by leaving the item in their car or in lockers partly provided for that purpose, an arrestee
who was arrested while carrying illegal drugs does not have such an option available to
them. Although not facing the "cruel dilemma" of the hunters in Gudmundson, an
arrestee in this situation nevertheless faces a difficult choice of whether to subject
59 See Alaska R. Crim. P. 6(r) ("The grand jury shall find an indictment when all the
evidence taken together, if unexplained or uncontradicted, would warrant a conviction of the
defendant.").
- 19 - 2780
----------------------- Page 20-----------------------
themselves to potential prosecution by voluntarily relinquishing their drugs or whether
to risk an additional charge of promoting contraband in the hopes that the drugs will not
be discovered during the booking process. In our view, due process requires that this
difficult choice be at least a knowing one.
For these reasons, we reverse the denial of Beltz's motion to dismiss the
charge of promoting contraband. Beltz's other charges remain.
Why we affirm the dismissal of Richardson's indictment
Therecord beforeus ofRichardson'sarrest isverylimited. Richardsonwas
charged with fourth-degree misconduct involving controlled substances (possession of
60
heroin) and first-degree promoting contraband, and her case proceeded to a grand jury.
A grand jury subsequently indicted her on these offenses.
Richardson moved to dismiss the promoting contraband charge. For
reasons that are unclear, the parties did not submit grand jury transcripts to the superior
court but instead stipulated to the following facts for purposes of the motion to dismiss
indictment:61
60 Richardson was later charged with violating conditions of release.
61 The State suggests in its brief that the grand jury proceeding reveals additional facts
beyond the parties' stipulation that would potentially impact the trial court's ruling, and the
State asks us to remand so that further factual findings can be made. But the State agreed to
submit this case for consideration on a set of stipulated facts and forgo the submission of the
grand jury transcript for the superior court's consideration. Thus, the transcript is not part
of the appellate record, and we conclude that the State has waived this request. Cf. Bertilson
v. State, 64 P.3d 180, 185 (Alaska App. 2003) (holding that the defendant waived his
challenges to the indictment by failing to ensure that the grand jury transcript was part of the
appellate record). We note that the dismissal of the indictment is without prejudice to the
State reindicting Richardson on the promoting contraband charge if the State believes that
it has sufficient evidence to pursue such a charge under the guidance provided by this
(continued...)
- 20 - 2780
----------------------- Page 21-----------------------
Ms. Richardson was arrested for driving with a suspended or
revoked license and brought to Wildwood Pretrial. While
being booked in, she was asked if she possessed drugs [or]
"things that might poke him." She denied being in
possession. However, while in the holding tank, she was
caught possessing heroin. She was interviewed by the police
and admitted that she possessed the heroin, but stated that she
did not admit to it as she did not wan[t] to be charged.
LikeBeltz, Richardsonmovedto dismissthepromoting contraband charge,
arguing that the State could not prove she had acted voluntarily within the meaning of
the statute because she was involuntarily brought to jail. She also contended that the
charges violated due process and punished her for exercising her right against self-
incrimination.
The Kenai superior court granted Richardson's motion to dismiss. The
court concluded that criminal liability required "a voluntary choice." In the limited
factual account it had been asked to evaluate, the court found no evidence that
Richardson had made the requisite voluntary choice and that her conduct did not go
beyond "mere possession."
The State asks us to reverse the superior court order dismissing
Richardson's charge. But based on the limited factual record before us, there is little
evidence suggesting that Richardson was on notice that continuing to possess drugs
within the facility was its own offense. There is no evidence that she was warned of the
consequences, on either this or a prior occasion. While Richardson's denial during the
booking process that she possessed drugs, and her later admission that she did not
disclose her possession of heroin because she did not want to be charged with possessing
it, are certainly relevant to whether Richardson had an opportunity to surrender the drugs
61 (...continued)
opinion.
- 21 - 2780
----------------------- Page 22-----------------------
and nonetheless chose not to do so, we conclude that, on the stipulated facts submitted
to the court, the court correctly dismissed the indictment for promoting contraband.
Conclusion
Accordingly, we REVERSE the denial of Beltz's motion to dismiss the
charge of promoting contraband, and we AFFIRM the order dismissing the charge for
promoting contraband in Richardson's case.
- 22 - 2780
----------------------- Page 23-----------------------
Judge WOLLENBERG, concurring.
The Court today holds that, in order for an arrestee who is brought to a
correctional facility with drugs on their person to be criminally liable for promoting
contraband, thearresteemusthaveknowledgethat maintaining possession ofcontraband
in the correctional facility constitutes a separate criminal offense and continue to conceal
the drugs after being given an opportunity to terminate possession. The Court grounds
this ruling in the question of voluntariness - i.e., whether and when an arrestee's act of
introducing drugs to a correctional facility may be deemed a voluntary act.
In my view, the "voluntary act" framing is not the ideal lens through which
to view the issue in this case. It is, of course, true that an arrestee is not, as a general
matter, brought to a correctional facility voluntarily. And the fact that an arrestee is
brought to the correctional facility against their will (and often unexpectedly) is what
contributes to a sense of unfairness at charging an arrestee not only with drug possession
1
-generally, a misdemeanor
-but also an additional felony-level crime, in the absence
2
of proof that the arrestee intentionally sought to introduce drugs into the facility.
1 See AS 11.71.050-.060.
2 State v. Barnes, 747 S.E.2d 912, 921 (N.C. App. 2013) (recognizing the "equitable
appeal" of the notion that it is "unfair to punish a defendant who chooses to possess a
controlled substance and is then arrested and taken into custody without voluntarily
surrendering the controlled substances in his possession as severely as a defendant who
deliberately chooses to introduce controlled substances into a penal institution"); cf. Martin
v. State, 17 So. 2d 427, 427 (Ala. App. 1944) (reversing conviction for public intoxication
due to the lack of a voluntary act by the defendant where law enforcement officers removed
the defendant from his home and into the public); Fontaine v. State, 762 A.2d 1027, 1031-32
(Md. App. 2000) (holding that the defendant, who was arrested in Delaware but transported
to Maryland for processing, was not present in Maryland voluntarily and thus could not be
convicted in Maryland of intending to distribute the drugs found on his person during a strip
(continued...)
- 23 - 2780
----------------------- Page 24-----------------------
But, in my view, approaching the issue in these petitions through the lens
of statutory interpretation is a cleaner approach that more closely comports with the
3
legislative intent to deter people from bringing contraband into the facility.
Alaska Statute 11.56.380 defines the base-level offense of second-degree
promoting contraband, and it sets out two separate ways an individual can commit the
offense - i.e., if the person:
(1) introduces, takes, conveys, or attempts to
introduce, take, or convey contraband into a
correctional facility; or
(2) makes, obtains, possesses, or attempts to
make, obtain, or possess anything that person
knows to be contraband while under official
detention within a correctional facility.
4
The misdemeanor
Second-degree promoting contraband is a class A misdemeanor.
offense is elevated to first-degree promoting contraband - a class C felony - when the
contraband is a deadly or defensive weapon, an item intended to be used to facilitate
5
escape, or a controlled substance.
Beltz and Richardson were each charged with one count of first-degree
promoting contraband, pursuant to both theories of liability. They argue, however, that
they should only have been charged under subsection (a)(1). I agree with this view -
2 (...continued)
search).
3 See Audio of House Judiciary Committee, House Bill 661, discussion between
Legislative Staff Counsel Barry Stern and Reps. Ed Dankworth, Terry Gardiner, and Lisa
Rudd, Tape 13, at 37:20 - 38:59 (Feb. 23, 1978) (noting concern over people trying to get
"dangerous items" into institutions, including "maximum security institutions").
4 AS 11.56.380(b).
5 AS 11.56.375.
- 24 - 2780
----------------------- Page 25-----------------------
and further reason that Beltz and Richardson should have been charged solely with
attempting to introduce, take, or convey contraband into a correctional facility.
I recognize that this statutory approach has not been fully briefed by the
parties, and my conclusions are therefore necessarily tentative. Nevertheless, I take this
opportunity to lay out what I consider to be a preferable statutory analysis because I
believe that the majority's framing raises difficult issues and risks being overly broad. 6
As this Court explained in Hillman v. State, the legislative history of the
second-degree promoting contraband statute "unambiguously demonstrates that the
7
legislature intended the two subsections to apply to two different groups of people." In
particular, the Commentary to Alaska's Revised Criminal Code states, in relevant part,
that the crime of promoting contraband can be committed both by persons bringing
contraband into the facility and by persons already confined at the facility:
Note that the crimes can be committed by either the person
who brings the contraband into the facility (§ 380 (a) (1)) or
the person confined in the facility (§ 380 (a) (2)). Use of the
culpability term "knows" in § 380 (a) (2) and its absence in
(a) (1) indicates that the person who brings the contraband
into the facility is not required to know that the item is
contraband. Recklessness is sufficient as to that element
[8]
(§ 11.81.610 (b) (2)).
6 See, e.g., Zehrung v. State, 569 P.2d 189, 195 (Alaska 1977), as modified on reh'g,
573 P.2d 858 (Alaska 1978) (holding that, as a general matter, "when one is arrested and
brought to a jail for a minor offense for which bail has already been set in a bail schedule,
[the arrestee] should be allowed a reasonable opportunity to attempt to raise bail before being
subjected to the remand and booking procedures and the incident inventory search").
7 Hillman v. State, 382 P.3d 1198, 1200 (Alaska App. 2016).
8 Commentary to Alaska's Revised Criminal Code, 1978 Senate Journal Supp. No. 47
(June 12), at 79 (emphasis added).
- 25 - 2780
----------------------- Page 26-----------------------
In Hillman, the defendant was a convicted inmate who was found guilty of
promoting contraband under subsection (a)(1) (the "introducing" theory) after
correctionalofficers discoveredher with chewingtobaccofollowingavisit with someone
9 10
Relying
who came from outside the prison. On appeal, we reversed her conviction.
on the Commentary set out above, we reasoned that "[t]he first subsection (a)(1) was
intended to apply to non-incarcerated persons who brought contraband from outside the
correctional facility into the facility," while "[t]he second subsection (a)(2) was intended
to apply to incarcerated persons who obtain contraband while they are within the
11
correctional facility." Because the defendant was a prisoner serving a sentence who
had "obtained" contraband, rather than "introduced" it, we concluded that she was
12
convicted under the wrong theory of guilt.
Arrestees do not fit neatly into either statutory category; they transition
fromnon-incarcerated personsto incarceratedpersons as they moveintotheconfinement
area of the correctional facility. But the plain language and legislative history of the
statute support the view that the appropriate subsection for charging Beltz and
Richardson - arrestees who did not succeed in getting drugs into the correctional
13
facility - was subsection (a)(1).
9 Hillman, 382 P.3d at 1199.
10 Id. at 1200.
11 Id.
12 Id.
13 Id. ; see also Green v. State, 541 P.3d 1137, 1143 (Alaska App. 2023) ("When we
engage in statutory interpretation, we examine the plain language of the statute, the
legislative history, and the legislative purpose of the statute." (citing Alaska Trustee, LLC v.
Bachmeier, 332 P.3d 1, 7 (Alaska 2014))).
- 26 - 2780
----------------------- Page 27-----------------------
First, the statute distinguishes between people who enter "into" a
correctional facility ((a)(1)) and people who are under official detention "within" a
14
correctional facility ((a)(2)).
"Correctional facility" is defined as "premises, or a
15
As
portion of premises, used for the confinement of persons under official detention."
the legislative commentary explains, subsection (a)(2) was intended to apply to persons
16
"confined" in the facility - that is, to persons who have already been through the
booking process and are in the portion of the facility where confinement occurs.
That subsection (a)(2) is limited to those who are already confined within
the facility is evidenced by the plain language of (a)(2), which criminalizes not only
"possess[ing]," but also "mak[ing]" and "obtain[ing]" contraband - actions that apply
to persons confined within a correctional facility but do not naturally apply to an arrestee
who is being brought into the facility. That is, an arrestee would not generally "make"
or "obtain," or attempt to make or obtain, contraband at the time of booking; rather, it is
only once the arrestee is confined "within [the] correctional facility" that the arrestee can
be said to be violating subsection (a)(2) by making, obtaining, or possessing
contraband.17
14 AS 11.56.380.
15 AS 11.81.900(b)(9).
16 Commentary to Alaska's Revised Criminal Code, 1978 Senate Journal Supp. No. 47
(June 12), at 79.
17
Thus, even though an arrestee is under "official detention," the arrestee is not yet
confined "within a correctional facility" for purposes of subsection (a)(2). See
AS 11.81.900(b)(42) (defining "official detention" as "custody, arrest, surrender in lieu of
arrest, or actual or constructive restraint under an order of a court in a criminal or juvenile
proceeding, other than an order of conditional bail release"); cf. Crosby v. State, 770 P.2d
1154, 1155-57 (Alaska App. 1989) (holding that, while the defendant was under "official
(continued...)
- 27 - 2780
----------------------- Page 28-----------------------
Second, as the Commentary notes, different mental states apply to the two
different categories of people - those charged under subsection (a)(1) (who must be
reckless as to whether an item is contraband) and those charged under subsection (a)(2)
18
(who must know that an itemis contraband). This lends further support to the view that
the two subsections were intended to apply to two different groups of people.
Consistent with Hillman, therefore, I wouldconcludethat subsection (a)(2)
does not apply to the conduct of arrestees like Beltz or Richardson, and that the relevant
question is whether Beltz and Richardson - who were discovered with drugs before
they were confined in the correctional center - "attempt[ed] to introduce, take or
convey" the contraband into the correctional facility, i.e., the area of confinement.
This approach is consistent with practical considerations and with our
obligation to avoid construing statutes in a manner that leads to absurd or
19
unconstitutional results. Contraband means "any article or thing which persons
confined in a correctional facility are prohibited by law from obtaining, making, or
20
possessing in that correctional facility." Contraband is further defined by regulation
in an expansive way that includes items - including tools, keys, and cameras - which
17 (...continued)
detention" while on furlough from the Department of Corrections to a residential treatment
facility, he was not under "confinement" for purposes of second-degree escape from a
"correctional facility").
18 Commentary to Alaska's Revised Criminal Code, 1978 Senate Journal Supp. No. 47
(June 12), at 79.
19 See Williams v. State, 853 P.2d 537, 538 (Alaska App. 1993).
20 AS 11.56.390.
- 28 - 2780
----------------------- Page 29-----------------------
are not of a readily illicit nature but which are often possessed during processing into a
21
detention facility.
Visitors regularly carry such items andaregenerally expected toplacethem
in lockers after they enter the building and before they enter the secure area to visit a
prisoner. Arrestees are also typically expected to hand over all of their belongings
during the booking process. In its briefing, the State appears to acknowledge that a
person must be given an opportunity to relinquish any contraband, and does not argue
that an arrestee who voluntarily does so when requested after entry into the jail building
22
is guilty of promoting contraband. I agree that due process and fair notice requires an
21 See 22 Alaska Administrative Code 05.660(b), which defines "contraband" to include:
(1) weapons, including firearms, explosives, knives, hacksaw blades, tear gas,
dangerous chemical agents, or any tool or other object that may be used as a
weapon, from which a weapon may be fashioned, or that is intended to be
perceived as a weapon;
(2) controlled substances, the possession of which is punishable by either
criminal or civil penalties, and any other type of medication;
(3) alcohol, including wine, distilled spirits, home brew, and any other type of
alcoholic substance;
(4) cameras, sound or video recorders, or any electronic or mechanical
receiving or transmitting equipment;
(5) any article, including keys, tools, electronic or mechanical devices, and
identification information, intended to be used as a means of facilitating an
escape; and
(6) any other article, including money, toiletries, books, food, mail, and
pictures, that is introduced, taken, or conveyed into a facility, or made,
obtained, or possessed in a facility in a manner intended to frustrate or evade
detection.
22 See People v. McClintic, 484 P.3d 724, 728-30 (Colo. App. 2020) (holding that a
defendant could not be convicted of introducing contraband where she voluntarily
relinquished marijuana when she was asked about it during a search at the jail).
- 29 - 2780
----------------------- Page 30-----------------------
opportunity to relinquish contraband; it is not enough for the State to show that an
arrestee, or other person who enters the correctional facility building, was in "mere
possession" of contraband in order to establish the crime of promoting contraband.
Accordingly, in my view, because the phrase "correctional facility" means
the area of the prison used for the confinement of prisoners, arrestees - who are not yet
within the correctional facility - are not generally liable for promoting contraband
under subsection (a)(2), a provision that applies only to a person who "makes, obtains,
possesses, or attempts to make, obtain, or possess anything that person knows to be
23
contraband while under official detention within a correctional facility ." Rather,
arrestees are generally subject to liability under subsection (a)(1) for "attempt[ing] to
introduce, take, or convey contraband into a correctional facility," unless they actually
24
succeed in smuggling it into the prison population.
And under the general definition of "attempt," the State must prove that a
person in Beltz's and Richardson's situation intended to introduce, convey, or take
contraband into the confinement portion ofthecorrectional facility -andthat the person
25
took a substantial step toward that end.
As I noted, it is not sufficient for the State to
23 AS 11.56.380(a)(2) (emphasis added).
24 AS 11.56.380(a)(1) (emphasis added).
25 AS 11.31.100(a) ("A person is guilty of an attempt to commit a crime if, with intent
to commit a crime, the person engages in conduct which constitutes a substantial step toward
the commission of that crime."); cf. Commonwealth v. Collier, 693 N.E.2d 673, 674-76
(Mass. 1998) (holding that, where a third party transported the defendant to within 100 yards
of the defendant's former wife, in violation of a protective order, the State was required to
show that the defendant intended the act which led to the violation, even though the crime
of violating a protective order generally requires only knowledge).
- 30 - 2780
----------------------- Page 31-----------------------
show simply that the person possessed the drugs; the State must show that it was the
26
person's "conscious objective" to take the drugs into the secure part of the facility.
This statutory interpretation better addresses two fundamental weaknesses
I see with the majority's approach.
First, I find the Fifth Amendment and due process implications of the
majority's approach troubling, and I think there is a significant question as to how an
arrestee's privilege against self-incrimination is affected by the compelled disclosure of
27
controlled substances. As a legal matter, it is true that criminal liability for promoting
contraband for an arrestee brought to a correctional facility with drugs is not premised
on an arrestee's failure to admit to drug possession but rather on "the nontestimonial act
28
of knowingly bringing controlled substances into the correctional facility." As a
practical matter, however, a defendant who is handcuffed and unable to physically turn
over any drugs may be compelled to tell the correctional officer of his possession in
29
response to official questioning or risk the addition of a felony charge.
26 AS 11.81.900(a)(1) ("A person acts 'intentionally' with respect to a result described
by a provision of law defining an offense when the person's conscious objective is to cause
that result.").
27 Both the Fifth Amendment to the United States Constitution and Article I, Section 9
of the Alaska Constitution provide that no person "shall be compelled" in a criminal
proceeding "to be a witness against himself." The Fourteenth Amendment to the United
States Constitution and Article I, Section 7 of the Alaska Constitution guarantee due process
to state criminal defendants.
28 People v. Low, 232 P.3d 635, 648 (Cal. 2010) (alterations omitted).
29 See Barrera v. State, 403 P.3d 1025, 1031-32 (Wyo. 2017) (Kautz, J., dissenting)
(concluding that, where a detention officer did not give an arrestee the option of refraining
from answering his question as to whether the arrestee had illegal substances on his person,
or ask the arrestee if he wished to waive his privilege against self-incrimination, but instead
(continued...)
- 31 - 2780
----------------------- Page 32-----------------------
The Alaska Supreme Court's decision in Gudmundsonv. State supports the
notion that requiring a person to choose between incriminating themselves and facing
30
additional criminal liability violates due process.
In Gudmundson, the court held that
a hunter faced with two courses of action, both of which were criminal, "should not have
to incriminate himself, nor subject himself to liability for further criminal acts" - and
31
that such a legal conundrum violated substantive due process. The majority approach
in these cases may require arrestees to make just such a choice. In contrast, requiring
that the State show that it was an arrestee's conscious objective to take drugs into a
correctional facility and that the arrestee took a substantial step toward that end solves
the voluntariness issue without the additional Fifth Amendment and due process
32
concerns.
Second, the majority's holding that the requisite voluntary act is shown
when the arrestee has notice that possession of contraband is an additional offense, and
the arrestee then fails to terminate possession of any contraband, casts too wide a net.
The obvious intent of the promoting contraband statutes is to prevent dangerous items
29 (...continued)
required the arrestee to confess or face a felony charge for taking a controlled substance into
the jail, the officer interfered with the arrestee's privilege against self-incrimination); see
generally E.L.L. v. State, 572 P.2d 786, 788 (Alaska 1977) ("The privilege against self-
incrimination applies where the answers elicited could support a conviction or might furnish
a link in the chain of evidence leading to a conviction." (citing McConkey v. State , 504 P.2d
823, 825-26 (Alaska 1972))).
30 Gudmundson v. State, 822 P.2d 1328, 1333 (Alaska 1991).
31 Id.
32 Alternatively, I agree with the California Supreme Court that if the defendant is
required to communicate knowledge about illegal substances in his possession, "the remedy
is to ensure that the statements, and any evidence derived from them, 'cannot be used'
against the defendant criminally" in a prosecution for possession. See Low, 232 P.3d at 649.
- 32 - 2780
----------------------- Page 33-----------------------
or contraband fromentering correctional facilities. But procedures, such as the thorough
strip search described by the correctional officer in Beltz's case, are already in place to
33
ensure that an arrestee is unable to enter a correctional facility with contraband.
Additional procedures like explicit warnings also serve the statutory goal and should be
routine.
Giventheseprotectivemeasures,themajority's approach allows an arrestee
to be charged with promoting contraband when there was little to no chance that the
arrestee would have actually introduced contraband into a correctional facility and no
34
evidence that this was the arrestee's conscious objective.
On the other hand, the statutory interpretation I have outlined here
effectuates the statutory intent of the promoting contraband statutes because it targets
only those arrestees who are actually intending to introduce or smuggle contraband into
35
a correctional facility.
33 The correctional officer who conducted the strip search of Beltz testified at the grand
jury proceeding that these searches are "thorough," in order to ensure that "no weapons, cell
phones, or contraband" are brought into the facility. In the course of these searches, a
correctional officer inspects an arrestee's mouth, arms, fingers, feet, genitalia, and buttocks,
thereby minimizing the likelihood of an arrestee entering a correctional facility with
contraband.
34 See Barrera, 403 P.3d at 1032-33 (Kautz, J., dissenting) (contending that the arrestee
did not "take" a controlled substance into a jail where there was "no possibility" that the
controlled substance would escape detection during the strip search and accompany him into
the jail as an inmate and thus, the arrestee's actions "had no connection to [the] legislative
purpose" of keeping controlled substances out of the hands of inmates and others).
35 See, e.g., State v. Thaxton, 79 P.3d 897, 899-900 (Or. App. 2003) (upholding a
contraband conviction when the defendant stuffed marijuana in his sock at a time when he
knew that officers were likely to arrest him and take him to jail, and thus "putting the
marijuana in the sock was a voluntary act directed toward introducing the contraband to the
(continued...)
- 33 - 2780
----------------------- Page 34-----------------------
Employingthis analysis, theindictments in thesecases -premised on both
theories of liability for promoting contraband and not limited to "attempts" to introduce
contraband - are flawed. I therefore concur with the Court's opinion.
35 (...continued)
jail"); Barrera, 403 P.3d at 1032 (Kautz, J., dissenting) (citing, as an example of a person
who could be charged with promoting contraband, an inmate on work release who voluntarily
chooses to bring controlled substances to the correctional facilityupon his return from work).
- 34 - 2780
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