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State v. Avery (7/17/2009) ap-2225

State v. Avery (7/17/2009) ap-2225

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
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) Court of Appeals No. A-9961
Petitioner, ) Trial Court No. 3AN-05-08247 CR
v. ) O P I N I O N
Respondent. ) No. 2225 July 17, 2009
          Petition for Review from the Superior  Court,
          Third  Judicial District, Anchorage,  Michael
          L. Wolverton, Judge.

          Appearances:  Terisia K. Chleborad, Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Talis  J. Colberg, Attorney General,  Juneau,
          for   the   Petitioner.   Glenda  J.   Kerry,
          Assistant Public Advocate, and Rachel Levitt,
          Public    Advocate,   Anchorage,   for    the

          Before:   Coats, Chief Judge, and  Mannheimer
          and Bolger, Judges.

          COATS,  Chief Judge.

          In  February and March of 2005, Ezial Avery was in jail
awaiting trial on charges that he kidnaped and sexually assaulted
his wife.  At that time, Avery was subject to a court order which
prohibited him from contacting his wife.  In spite of  the  court
order,  Avery  telephoned  his wife from  the  jail  on  numerous
occasions and tried to persuade her to not testify against him in
front of the grand jury.
          The Department of Corrections routinely records inmates
telephone  calls.  When the police learned that  Avery  had  been
contacting his wife, they obtained a warrant that authorized them
to  obtain  and  listen to the recordings of the telephone  calls
Avery  had made to his wife.  Based on these telephone  calls,  a
grand  jury indicted Avery on one count of first-degree tampering
with a witness (for inducing or attempting to induce a witness to
testify  falsely or offer misleading testimony).1  Twelve  counts
of  unlawful contact in the first degree (for contacting V.Q.  in
violation of the court order) were added by information.2
          Avery  moved to suppress the telephone recordings.   He
argued  that the State had violated his rights under  the  United
States  and  Alaska Constitutions when it recorded his  telephone
conversations without a warrant.  Superior Court Judge Michael L.
Wolverton   granted  Averys  motion  to  suppress.    The   State
petitioned  for review.  We granted the States petition,  and  we
now reverse the superior courts ruling.

          Factual and legal background
          Alaska Statute 33.30.231(c) requires the Department  of
Corrections  to monitor the phone calls of prisoners in  whatever
manner the Commissioner determines is appropriate:
          [I]n  order  to  preserve  the  security  and
          orderly  administration of  the  correctional
          facility  and  to  protect  the  public,  the
          commissioner  shall  monitor  or  record  the
          telephone  conversations of  prisoners.   ...
          The  monitoring or recording may be conducted
          on  all calls or selectively or in some other
          limited   manner   as   determined   by   the
          commissioner to be appropriate.
(The  statute  specifically exempts telephone  calls  between  an
attorney  and a prisoner, as well as calls between the Office  of
the Ombudsman and a prisoner.)3
          As we have already noted, the Department of Corrections
routinely  records inmates telephone calls (except  those  to  an
attorney  or  the  Ombudsman).  Signs posted above  the  prisoner
telephones  warn  that  telephone  calls  may  be  monitored  and
recorded.   In addition, each prisoner phone call is preceded  by
an  auditory  warning that this phone call may be  monitored  and
          However,  at  the  time the Department  of  Corrections
recorded   Averys  phone  calls,  there  was  a   Department   of
Corrections policy in effect, Policy 810.01, which declared  that
calls  of prisoners ... who have [not] been convicted of a  crime
may  only  be  monitored and recorded when  authorized  by  court
order.   This policy was adopted in 2002.  Apparently,  by  2005,
when Averys telephone calls were recorded, the Department was  no
longer  following  this  policy, but it  had  not  been  formally
          The  only witness to testify at the evidentiary hearing
on  Averys suppression motion was the security sergeant from  the
Anchorage jail.  He testified that all prisoners telephone  calls
(with  the  exception  of  calls  to  lawyers,  members  of   the
Legislature,  or  the  Ombudsman)  were  recorded  for   security
reasons.  The sergeant stated that he had no knowledge of  Policy
810.01.   (Policy 810.01 was revised on May 22, 2007  to  provide
that all calls may be monitored and recorded at any time.)

          Judge Wolvertons ruling
          In  his  decision, Judge Wolverton relied  in  part  on
Policy   810.01  as  the  justification  for  suppressing  Averys
telephone calls.  Because Avery had not yet been convicted at the
time  his  calls  were recorded, Judge Wolverton  concluded  that
Policy  810.01  prohibited the Department from  recording  Averys
calls.   Judge Wolverton also stated that, because prisoners  are
presumed  to know the rules of the jail, Avery should be presumed
to  be  aware  of Policy 810.01.  Thus, the judge concluded  that
Avery  had  [both]  a  subjective and  objective  expectation  of
privacy in his phone calls at the Anchorage Correctional Center.
          Moreover,   Judge   Wolverton   concluded   that    the
warrantless recording of Averys telephone calls violated not only
Policy  810.01, but also [Averys] privacy rights under the Alaska
and  United  States Constitutions.  He therefore  granted  Averys
motion to suppress.

          Why we reverse Judge Wolvertons ruling
          To  prevail under the search and seizure clauses of the
United States and Alaska Constitutions, Avery must show (1)  that
he  had an actual subjective expectation of privacy, and (2) that
his  expectation of privacy was one that our society is  prepared
to  recognize  as reasonable. 4  Thus, even if we accepted  Judge
Wolvertons conclusion that Avery had a subjective expectation  of
privacy  in  his phone calls from jail, we would  still  have  to
determine whether Averys expectation of privacy was one that  our
society is prepared to recognize as reasonable.
          Averys  expectation of privacy in his phone calls  from
jail   would  not  be  considered  reasonable  under  the  Fourth
Amendment  to  the  United  States  Constitution.   In  Bell   v.
Wolfish,5   the   United  States  Supreme  Court   examined   the
constitutional rights of pretrial detainees in the context  of  a
class  action  lawsuit.  The prisoners in Wolfish had  challenged
certain  prison  rules as violative of their First,  Fourth,  and
Fifth  Amendment  Rights:   (1) a rule prohibiting  inmates  from
receiving  books from anyone other than a book club or publisher;
(2) a rule prohibiting inmates from receiving packages containing
food  and personal property; (3) a rule prohibiting inmates  from
observing  searches  of their rooms; and  (4)  a  rule  requiring
prisoners  to submit to body-cavity searches after every  contact
visit.6    The  Supreme  Court  concluded  that  all   of   these
regulations were reasonable.
          The   Supreme  Court  reaffirmed  the  principle   that
          prisoners do not forfeit all constitutional protections by reason
of  their  conviction and confinement in prison.7  But the  Court
also emphasized that simply because prison inmates retain certain
constitutional  rights does not mean that these  rights  are  not
subject  to  restrictions and limitations.8  In other words,  [a]
detainee simply does not possess the full range of freedoms of an
unincarcerated individual.9  The Court noted that the maintenance
of  institutional order, discipline, and security  are  essential
goals in correctional facilities and concluded that even when  an
institutional  restriction  infringes a  specific  constitutional
guarantee ... the practice must be evaluated in the light of  the
central   objective   of   prison  administration,   safeguarding
institutional  security.10  Finally, the Court held  that  prison
administrators should be accorded wide-ranging deference  in  the
adoption  and execution of policies and practices that  in  their
judgment are needed to preserve internal order and discipline and
to maintain institutional security.11
          Applying  these principles, the Supreme Court  held  in
Wolfish  that  even the highly invasive practice  of  body-cavity
searches  did  not violate the prisoners Fourth Amendment  Rights
because   the   searches   were  not   unreasonable   under   the
circumstances.12  The Court noted that the test of reasonableness
requires,  in  each  case,  a  balancing  of  the  need  for  the
particular  search against the invasion of personal  rights  that
the  search  entails.13  Accordingly, [c]ourts must consider  the
scope  of  the particular intrusion, the manner in  which  it  is
conducted, the justification for initiating it, and the place  in
which  it  is  conducted.14   The Court,  after  [b]alancing  the
significant  and legitimate security interests of the institution
against the privacy interests of the inmates, concluded that  the
body-cavity searches were reasonable.15
          Several years later, in Hudson v. Palmer,16 the Supreme
Court stated:
          [W]e  hold  that society is not  prepared  to
          recognize   as   legitimate  any   subjective
          expectation of privacy that a prisoner  might
          have   in   his   prison   cell   and   that,
          accordingly,     the     Fourth     Amendment
          proscription  against  unreasonable  searches
          does  not  apply within the confines  of  the
          prison  cell.   The  recognition  of  privacy
          rights  for  prisoners  in  their  individual
          cells  simply cannot be reconciled  with  the
          concept  of incarceration and the  needs  and
          objectives of penal institutions.
               A right of privacy in traditional Fourth
          Amendment terms is fundamentally incompatible
          with the close and continual surveillance  of
          inmates  and their cells required  to  ensure
          institutional  security and  internal  order.
          We  are  satisfied that society would  insist
               that the prisoners expectation of privacy
          always  yield to what must be considered  the
          paramount     interest    in    institutional
Based  on these precedents, it seems clear that the United States
Supreme  Court  would  uphold  the monitoring  and  recording  of
telephone  calls at issue in this case.  Moreover, lower  federal
courts  have consistently upheld the right of a penal institution
to record inmate telephone calls.18
          Avery, however, also contends that the recording of his
telephone calls was unreasonable under the Alaska Constitution.19
The Alaska Constitutions search and seizure provision (article I,
section 14) is more protective than the Fourth Amendment  to  the
United  States  Constitution.20  But we  doubt  that  the  Alaska
Supreme  Court would find that Avery had a reasonable expectation
of privacy in his telephone calls from jail.
          As we explained earlier, AS 33.30.231(c) authorizes the
monitoring of prisoners telephone calls to preserve the  security
and  orderly administration of the correctional facility  and  to
protect  the  public.  In Larson v. Cooper,21 our  supreme  court
declared  that  [p]rison  security is a  compelling  governmental
interest,  and  thus  limitations  on  prisoners  freedoms  would
generally  be  upheld  if they were rationally  related  to  this
          We  conclude that the monitoring of prisoners telephone
calls is rationally related to the goal of prison security.   The
witness  at Averys evidentiary hearing (the security sergeant  at
the  Anchorage jail) testified that this monitoring is  conducted
to  ensure that prisoners do not make plans to escape, or smuggle
drugs  or  weapons  into  the facility,  or  threaten  or  harass
witnesses.    Thus, the monitoring authorized by AS 33.30.230(c),
with its codified exceptions for telephone calls to attorneys and
government officials, is at least presumptively constitutional.
          Moreover, in City & Borough of Juneau v. Quinto,23  the
Alaska  Supreme  Court  held that when  a  person  is  aware,  or
reasonably  should  be aware, that he or she  is  speaking  to  a
police officer who is in the process of executing either a lawful
arrest or a lawful investigative stop, society is not prepared to
recognize as reasonable an expectation that the conversation will
not  be  surreptitiously recorded.24  In the present case,  Avery
was  not  speaking  directly  to law enforcement  or  corrections
officials,  but the circumstances clearly placed  him  on  notice
that  his  telephone  conversations  were  not  private.   As  we
explained   earlier,  signs  were  posted  above   the   prisoner
telephones,  warning inmates that their telephone  calls  may  be
monitored  and  recorded.  In addition, every call  at  issue  in
Averys case was preceded by the auditory warning that this  phone
call may be monitored and recorded.
          For  these  reasons,  we  reject  the  superior  courts
conclusion  that  the warrantless recording of  Averys  telephone
calls  violated Averys rights under the Fourth Amendment  to  the
United States Constitution or under article I, section 14 of  the
Alaska  Constitution.   The recording of Averys  phone  calls  is
          consistent with these constitutional provisions.  Moreover, the
monitoring was authorized by AS 33.30.230(c).
          Therefore,  if the recording of Averys telephone  calls
was  illegal, it was illegal only because it violated  Department
of  Corrections  Policy 810.01.  The remaining question  is  thus
whether the exclusionary rule should be applied to violations  of
an executive agencys written policies.
          In  Berumen v. State,25 we set out factors to  consider
in  determining whether to apply the exclusionary rule  in  cases
where  a  government officer violated a statute.26  These factors
are:  (1) whether the statutory requirement ... restriction [was]
clear  and  widely known;  (2) whether the statute was  primarily
enacted to protect the rights of individual citizens rather  than
to  generally  benefit  society; (3)  whether  admission  of  the
evidence   would   make  courts  accomplices   to   the   willful
disobedience of the law; and (4) whether the police have  engaged
in widespread or repeated violations of the statute.27
          In  the present case, as we have pointed out, there was
no   violation  of  a  statute.   Rather,  Alaska  statutory  law
expressly  authorizes  the  recording of  all  inmates  telephone
calls.   Averys  claim  does not rest on any  violation  of  this
statute, but rather on a violation of a related provision of  the
Department of Correctionss procedural manual, Policy 810.01.
          Further,  the testimony at the evidentiary  hearing  in
Averys  case supports the conclusion that Policy 810.01  was  not
clear  and widely known.  The only witness who testified at  that
hearing, the security sergeant at the Anchorage jail, stated that
he was not aware of this written policy, and that the Departments
actual  practice was to record all inmates phone calls.  It  thus
appears that, if the Department engaged in misconduct, it was  in
failing  to  amend  Policy 810.01 to conform to  the  Departments
actual practices.
          Under   these  circumstances,  we  conclude  that   the
violation  of  Department of Corrections Policy 810.01  does  not
justify  the  application  of the exclusionary  rule.   For  this
reason,   the  superior  court  erred  when  it  granted   Averys
suppression motion.

          The  order of the superior court granting Averys motion
to  suppress  is  REVERSED, and this  case  is  remanded  to  the
superior court for further proceedings on the indictment.  We  do
not retain jurisdiction of this matter.
     1 AS 11.56.540(a)(1).

     2 AS 11.56.750.

     3  AS  33.30.231(c)  (A recording of a telephone  call  made
under  this subsection shall be kept confidential, and access  to
the  recording  and its contents is limited to  persons  who  are
acting within the scope of their official duties and whose access
to  specific  recordings  has  been authorized  by  the  facility
superintendent.   A  telephone call between  an  attorney  and  a
prisoner  or between the office of the ombudsman and  a  prisoner
may  not  be  monitored or recorded except when authorized  by  a

4  See  Katz  v.  United States, 389 U.S. 347,  361,  88  S.  Ct.
507,  516,  19 L. Ed. 2d 576 (1967) (Harlan, J., concurring)  (My
understanding  of the rule that has emerged from prior  decisions
is  that there is a twofold requirement, first that a person have
exhibited  an  actual (subjective) expectation  of  privacy  and,
second,  that the expectation be one that society is prepared  to
recognize  as  reasonable. ); see also State v. Glass,  583  P.2d
872,   875  &  n.9  (Alaska  1978)   (applying  Justice   Harlans
articulation  of  the rule in Katz under Alaska  law);  Smith  v.
State, 510 P.2d 793, 797 (Alaska 1973) (same).

     5 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979).

     6 Id. at 530, 99 S. Ct. at 1859.

7 Id. at 545, 99 S. Ct. at 1877.

     8 Id. at 545, 99 S. Ct. at 1877.

     9 Id. at 546, 99 S. Ct. at 1878.

     10   Id. at 547, 99 S. Ct. at 1878.

     11   Id.

     12   Id. at 558-60, 99 S. Ct. at 1884-85.

     13   Id. at 559, 99 S. Ct. at 1884.

     14   Id.

     15   Id.

     16   468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984).

17   Id. at 526, 104 S. Ct. at 3200.

     18    See, e.g., United States v. Amen, 831 F.2d 373, 379-80
(2d  Cir.  1987) ([P]rison inmates have no reasonable expectation
of privacy.  In the prison context the reasonableness of a search
is  directly  related  to legitimate concerns  for  institutional
security.  If security concerns can justify strip and body-cavity
searches,  and  wholly random cell searches, then  surely  it  is
reasonable   to   monitor   prisoners  telephone   conversations,
particularly where they are told that the conversations are being
monitored. (citations omitted)); United States v. Gangi, 57  Fed.
Appx.  809, 815 (10th Cir. 2003) (We agree with the Ninth Circuit
that any expectation of privacy in outbound calls from prison  is
not  objectively  reasonable and that  the  Fourth  Amendment  is
therefore  not  triggered by the routine taping  of  such  calls.
(quoting  United States v. Van Poyck, 77 F.3d 285, 291 (9th  Cir.

     19   See article I, section 14 & article I, section 22.

     20    Woods & Rohde, Inc. v. State, Dept of Labor, 565  P.2d
138, 150 (Alaska 1977).

     21   90 P.3d 125 (Alaska 2004).

     22   Id. at 129.

     23   684 P.2d 127 (Alaska 1984).

     24   Id. at 129.

     25   182 P.3d 635 (Alaska App. 2008).

     26   Id. at 641.

     27   Id. (quoting Harker v. State, 637 P.2d 716, 719 (Alaska
App. 1981), modified by 663 P.2d 932, 934-35 (Alaska 1983)).

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