text:
    Eric Scott PENETAC, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
    Court of Appeals No. A-12804
    Court of Appeals of Alaska.
    January 11, 2019
    Shaul L. Goldberg, Denali Law Group, Anchorage, for the Appellant.
    Sarah E. Stanley, Assistant Municipal Prosecutor, and William D. Falsey, Municipal Attorney, Anchorage, for the Appellee.
    Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges.
   Judge ALLARD.

Following a jury trial, Eric Scott Penetac was found guilty of two counts of child neglect under the Anchorage Municipal Code (AMC). The two counts were merged at sentencing, for a single municipal class A misdemeanor conviction. Penetac was subsequently sentenced to 365 days in jail with 290 days suspended (75 days to serve).

On appeal, Penetac argues that his sentence is illegal because it exceeds the 30-day presumptive maximum sentence that he would likely have faced if he had been convicted of a class A misdemeanor under state law. According to Penetac, the more lenient law that governs sentencing for state misdemeanors (specifically, AS 12.55.135 ) preempts any inconsistent municipal sentencing law. Penetac also argues that the Municipality's own code (specifically, AMC 08.05.020.E) provides that all sentencing under the municipal code is governed by AS 12.55. Lastly, Penetac argues that failure to apply the state sentencing scheme to municipal offenders violates the Equal Protection Clause of the Alaska Constitution.

For the reasons explained here, we reject these arguments and affirm Penetac's sentence.

Why we conclude that AS 12.55.135 does not control Penetac's sentencing

Penetac was convicted of child neglect under the Anchorage Municipal Code. The municipal code classifies child neglect as a class A misdemeanor, and the code authorizes sentences of up to one year in jail for all municipal class A misdemeanors. In contrast, AS 12.55.135, the Alaska statute setting out the permissible sentences for state misdemeanors, limits sentences for most state class A misdemeanors to 30 days unless certain circumstances (not present here) are demonstrated.

On appeal, Penetac argues that, in light of this difference between the state sentencing provision and the municipal code, the district court was required to sentence him under the more lenient state sentencing law.

Penetac's argument is based on a misunderstanding of the interaction between municipal codes and state law under the Alaska Constitution's "home rule" provision. As a home rule city, Anchorage is granted relatively broad powers; the state constitution declares that "[a] home rule borough or city may exercise all legislative powers not prohibited by law or by charter."

When a home rule municipal ordinance is challenged as invalid under state law, we apply the test set out by the Alaska Supreme Court more than forty years ago in Jefferson v. State :

A municipal ordinance is not necessarily invalid in Alaska because it is inconsistent or in conflict with a state statute. The question rests on whether the exercise of authority has been prohibited to municipalities. The prohibition must be either by express terms or by implication such as where the statute and ordinance are so substantially irreconcilable that one cannot be given its substantive effect if the other is to be accorded the weight of law.

Thus, the fact that the penalties for offenses designated "class A misdemeanors" under the municipal code may be inconsistent with the penalties for some offenses designated as "class A misdemeanors" under state law does not, by itself, render the municipal penalties unlawful.

We note that there is, in fact, a statute- AS 29.25.070(g) -that prohibits municipalities (including home rule municipalities) from imposing a greater punishment for a municipal offense if there is a "comparable state offense under AS 11 or AS 28 with elements that are similar to the municipal ordinance." But Penetac does not argue that there is a state crime comparable to the Anchorage municipal offense of child neglect. In the absence of any such showing, we reject Penetac's argument that AS 12.55.135 controls his sentence as a matter of state law.

Why we reject Penetac's interpretation of AMC 08.05.020.E

Penetac also argues that even if AS 12.55.135 does not control his sentencing as a matter of state law, the Municipality of Anchorage's own code explicitly incorporates AS 12.55 into its sentencing scheme. Thus, according to Penetac, AS 12.55.135 controls Penetac's sentence as a matter of municipal law. In support of this claim, Penetac points to AMC 08.05.020.E, which provides:

E. Except as provided in subsection D. of this section, for a class A or class B misdemeanor, the court in the interest of justice may suspend part or all of a sentence imposed or suspend imposition of sentence and place the defendant on probation. In sentencing under this Code, the provisions of AS 12.55 shall apply. This subsection is not applicable to minor offenses. (Emphasis added.)

Penetac contends that the second sentence of this provision-"In sentencing under this Code, the provisions of AS 12.55 shall apply"-means that AS 12.55 controls all sentencing for municipal offenses that are not minor offenses. If we were to read this sentence literally and out of context, we would be forced to agree with this interpretation.

But we are "obliged to avoid construing statutes in a way that leads to patently absurd results or to defeat of the obvious legislative purpose behind the statute." Penetac's interpretation of AMC 08.05.020.E violates this principle because it would render the rest of AMC 08.05.020, which sets out the municipal sentencing scheme in some detail, largely superfluous.

There is also nothing in the relevant legislative history to support Penetac's interpretation. Prior to 1982, former AMC 08.05.020.E stated:

E. Except as provided in subsection D of this ordinance, the court in the interest of justice may suspend part or all of a sentence imposed or suspend imposition of sentence, and place the defendant on probation. In those cases in which probation is authorized under this code, the provisions of AS 12.55.080, AS 12.55.085, 12.55.090, 12.55.100 and 12.55.110 shall apply, except that no person may be placed on probation under this code for a period of more than one year. (Emphasis added.)

In 1982, this last sentence was changed to the current version-"In sentencing under this Code, the provisions of AS 12.55 shall apply." There was no significant legislative discussion of this change. However, the accompanying Assembly Memorandum indicates that the intended purpose of this change was to eliminate the one-year cap on probation. There is no suggestion that the Assembly intended to make any substantive change to the rest of the sentence. Nor is there anything to suggest that the Assembly intended to make all municipal sentencing governed by AS 12.55, thereby rendering most of the rest of AMC 08.05.020 superfluous.

As a general rule, "[a]ll sections of a statute should be construed together so that all have meaning and no section conflicts with another." Because Penetac's interpretation of AMC 08.05.020.E would render the other subsections of that provision meaningless, we reject his proposed interpretation. Instead, we conclude that AMC 08.05.020.E should be interpreted as requiring the courts to follow only those Title 12 provisions that apply directly to defendants sentenced under subsection E-i.e. , those provisions that govern when and how a court may, in the interests of justice, "suspend part or all of a sentence imposed or suspend imposition of sentence and place the defendant on probation."

Penetac's equal protection argument

Penetac also argues that his municipal sentence violates equal protection because it subjects him to a greater penalty than the 30-day presumptive maximum sentence that most class A misdemeanors carry under state law.

This argument is without merit. As already mentioned, Penetac does not claim that he was convicted of a municipal offense with elements comparable to a state offense. Nor has he otherwise shown that, simply because he was convicted of a municipal offense designated as a class A misdemeanor under the municipal code, he is thereby similarly situated to persons convicted of offenses designated as class A misdemeanors under state law. Penetac also ignores the fact that not all state class A misdemeanors are subject to the 30-day cap. Indeed, there are several state class A misdemeanors that are exempt from this limitation and subject to the same penalty range that Penetac himself faced. Accordingly, we find no merit to Penetac's equal protection claim.

Conclusion

The judgment of the district court is AFFIRMED.

      See AMC 08.10.040.B.3 and AMC 08.10.040.B.7.

      Alaska Const. art. I, § 1.

      AMC 08.10.040.D.

      AMC 08.05.020.H.1.

      See AS 12.55.135(a)(1), (2).

      Alaska Const. art. X, § 11.

      Id.

      Jefferson v. State , 527 P.2d 37, 43 (Alaska 1974).

      See id.

      SLA 2016, ch. 36, § 113.

      Williams v. State , 853 P.2d 537, 538 (Alaska App. 1993).

      See State v. Fyfe , 370 P.3d 1092, 1099 (Alaska 2016) (explaining that, in interpreting a statute, courts will "presume that no words or provisions are superfluous and that the legislature intended every word, sentence, or provision of a statute to have some purpose, force, and effect") (internal citations omitted).

      AMC 08.05.020.E was originally codified as AMC 08.50.020.E and subsequently renumbered in 1998. See AO 98-59(S), § 1.

      AMC 08.50.020.E (1976 version).

      AMC 08.05.020.E.

      See Municipality of Anchorage Assembly Memorandum, No. AM 881-82 (Aug. 17, 1982).

      See id.

      See id.

      Monzulla v. Voorhees Concrete Cutting , 254 P.3d 341, 345 (Alaska 2011) (internal citation omitted).

      AMC 08.05.020.E.

      See Planned Parenthood of The Great Northwest v. State , 375 P.3d 1122, 1135 (Alaska 2016) ("When equal protection claims are raised, the question is whether two groups of people who are treated differently are similarly situated and therefore are entitled to equal treatment under the constitution.") (internal citations omitted).

      Class A misdemeanors that are not subject to the 30-day cap include: assault in the fourth degree, sexual assault in the fourth degree, sexual abuse of a minor in the fourth degree, indecent exposure in the second degree in front of a minor, sending an explicit image of a minor, and certain harassment in the first degree. See AS 12.55.135(a)(1)(D)-(E). In addition, the 30-day cap also does not apply to crimes with mandatory minimum sentences of 30 days or more, crimes where the trier of fact finds the "most serious" aggravator, and cases in which a defendant has past criminal convictions similar in nature to the offense for which the defendant is being sentenced. See AS 12.55.135(a)(1)(A)-(C).


source: Caselaw Access Project

author: Judge MANNHEIMER.

license: Public Domain

text:
    Erin A. POHLAND, Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-12443
    Court of Appeals of Alaska.
    Date of Order: January 30, 2019 February 1, 2019
    Cynthia L. Strout, Anchorage, for the Appellant.
    Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
    Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges.
    as amended on rehearing
   Judge MANNHEIMER.

Erin A. Pohland, a former assistant attorney general, appeals her conviction for official misconduct, AS 11.56.850(a). The State alleged that Pohland used her position as legal advisor to the Alaska Labor Relations Agency to benefit her personal friend, Skye McRoberts.

Much of the evidence against Pohland was based on information obtained during a search of her personal computer. This computer was seized when the state troopers executed a search warrant for Skye McRoberts's house-where Pohland was renting an apartment. The troopers were looking for evidence of McRoberts's potential business and financial crimes, but they seized Pohland's computer under the theory that McRoberts might have hidden evidence of her crimes in any computer or electronic storage device located within the house-even Pohland's personal laptop, which was found in Pohland's apartment.

Pohland contends that the search of her computer violated her rights under the Fourth Amendment and under the corresponding provision of the Alaska Constitution (Article I, Section 14 ). We agree with Pohland that the search of her computer was unlawful. Even when the police have a warrant to search a house, a personal computer must be treated differently from other objects or containers in the house. As the United States Supreme Court explained in Riley v. California , a police search of this kind of personal digital device "[will] typically expose to the government far more than the most exhaustive search of a [person's] house", because the device "not only contains in digital form many sensitive records previously found in the home", but also "a broad array of private information never found in a home in any form".

As we explain in this opinion, the troopers did not have probable cause to believe that Pohland's personal laptop computer contained evidence of her landlord's financial and business crimes. Moreover, rather than confining their search to documents and spreadsheets (i.e. , computer files that were more likely to contain evidence of financial and business crimes), the troopers obtained much of the evidence against Pohland by combing through thousands of Pohland's personal text messages. (Pohland was using her laptop computer as a backup device for the data stored on her smart phone.)

For these reasons, we reverse Pohland's conviction.

Underlying facts

Pohland and Skye McRoberts were close friends, and Pohland lived in an apartment (i.e. , a suite of rooms) within McRoberts's house.

Pohland was also an assistant attorney general who advised the Alaska Labor Relations Agency-the agency within the executive branch that dealt with labor union matters.

Pohland's friend McRoberts worked as a union organizer for the Alaska State Employees Association. The State Employees Association was engaged in an effort to unionize the employees of the University of Alaska. In connection with this effort, McRoberts submitted employee "interest" cards to the Labor Relations Agency-cards purporting to express the interest of various University employees in becoming members of the union. (Under Alaska law, at least 30 percent of a proposed bargaining unit must express interest in becoming unionized. )

The Labor Relations Agency came to suspect that a number of these interest cards might have been forged, so the Agency contacted Pohland for advice. Based on the advice that Pohland gave to the Labor Relations Agency, Pohland was charged with official misconduct.

Specifically, the State alleged that Pohland failed to tell the Agency that she was close friends with McRoberts, that she lived in an apartment within McRoberts's home, that she had regularly discussed the unionization effort with McRoberts, and that she had assisted McRoberts in this effort. The State further alleged that Pohland's advice to the Labor Relations Agency was designed to shield her friend McRoberts from any official investigation into the possibility that McRoberts had forged, or had colluded in forging, the employee interest cards.

The seizure and search of Pohland's computer, and the litigation of the suppression motion in the trial court

In March 2011, the Alaska State Troopers obtained a warrant to search McRoberts's house for evidence that she and her husband, Donavahn McRoberts, had committed forgery and falsification of business records relating to the forged interest cards. More specifically, the search warrant authorized the troopers to search the house for various kinds of documents "related to the business and finances" of McRoberts and her husband, as well as documents related to the solicitation of potential union members from the University of Alaska.

When the troopers applied for this search warrant, they knew that Pohland was good friends with McRoberts, they knew that the Labor Relations Agency had sought advice from Pohland regarding the forged interest cards, and they knew that there were reasons to question the competence of Pohland's advice to the Labor Relations Agency.

In particular, the search warrant affidavit recited that Pohland's advice to the Labor Relations Agency "did not follow the guidelines for forged Interest Cards laid out in a National Labor Relations Manual". The search warrant affidavit also asserted that Pohland "failed to advise [the Agency] to contact law enforcement to investigate the matter", and that Pohland failed to tell the Labor Relations Agency that she was good friends with McRoberts and that McRoberts was her landlord.

However, both the troopers and the prosecutor assigned to the case later conceded that, when the troopers applied for the warrant, they did not have probable cause to believe that Pohland was complicit in McRoberts's crimes.

The search warrant issued by the district court contained a provision authorizing the troopers to seize and search any computer or electronic storage media "capable of concealing documents related to the business and finances associated with Donavahn McRoberts or Skye McRoberts."

During the troopers' ensuing search of McRoberts's house, the troopers identified Pohland's separate apartment within the house. This area of the house did not have separate egress to the street, but it was a suite of rooms comprising a bedroom, a separate kitchen, a separate bathroom, and a clothes washer and dryer.

While the troopers were searching Pohland's apartment, they seized a laptop computer. At the time, the troopers conducting the search presumed that the laptop belonged to Pohland. A subsequent examination of the laptop's hard drive confirmed this assumption. The laptop contained numerous documents belonging to Pohland, as well as thousands of text messages between Pohland and various people (backup copies of texts from Pohland's mobile phone).

Many of these text messages were exchanged between Pohland and McRoberts, and some of these text messages appeared to discuss the campaign to unionize the university workers. These text messages became part of the State's case against Pohland when she was later charged with official misconduct for the advice that she gave to the Labor Relations Agency.

After Pohland was charged, her attorney asked the district court to suppress the evidence obtained from the search of Pohland's laptop.

Pohland's attorney argued that Pohland's apartment was a separate living space, and that the warrant authorizing a search of McRoberts's house did not encompass Pohland's apartment. In the alternative, the defense attorney argued that the troopers did not have probable cause to believe that Pohland's personal laptop contained information relevant to the crimes that the troopers were investigating (i.e. , the crimes allegedly committed by McRoberts and her husband).

Following an evidentiary hearing, the district court denied Pohland's suppression motion.

In its ruling, the district court acknowledged that, "generally, if a structure is divided into more than one occupancy unit, probable cause must exist for each unit [which is] to be searched." The district court acknowledged that Pohland "had her own living space" within McRoberts's house, and that Pohland paid rent for this apartment. The court also found that the entrance door into Pohland's apartment was lockable-even though that door was not locked when the troopers executed the search warrant.

However, the district court concluded that Pohland's apartment within McRoberts's house was not so sequestered as to constitute a separate occupancy unit for Fourth Amendment purposes. The district court reached this conclusion because Pohland's apartment did not have its own separate egress to the street, because McRoberts and Pohland were close friends (i.e. , their relationship was not simply landlord and tenant), and because the court found that McRoberts continued to have "general access" to Pohland's apartment "as the landlord and owner of the house".

The district court further concluded that, even though the troopers presumed from the outset that the laptop seized from Pohland's apartment belonged to Pohland, and not McRoberts, the troopers nevertheless had probable cause to believe that Pohland's laptop contained evidence of McRoberts's crimes. The district court pointed out that the entry door to Pohland's apartment was inside McRoberts's house, and that "there was no evidence that ... McRoberts was blocked from access to Pohland's apartment." The court also again pointed out that Pohland and McRoberts were not simply tenant and landlord; instead, they were close friends.

The district court acknowledged (based on the investigating trooper's testimony, and based on the prosecutor's express concession) that when the troopers applied for the search warrant, they did not have probable cause to believe that Pohland herself had committed any crime. Nevertheless, the district court concluded that the troopers had probable cause to believe that McRoberts might have concealed evidence of her own crimes within Pohland's living area - including hiding this evidence on the hard drive of Pohland's laptop computer.

The court therefore ruled that the search warrant authorized the troopers to seize and search Pohland's laptop.

A preliminary note on the issue of whether the troopers could lawfully enter Pohland's apartment to search for evidence of McRoberts's crimes

As we noted in the preceding section of this opinion, the State concedes that when the troopers applied for the search warrant, they did not have probable cause to believe that Pohland was complicit in McRoberts's crimes, or that Pohland was knowingly concealing evidence of McRoberts's crimes. Pohland argues that the troopers therefore failed to establish probable cause to search her personal apartment within McRoberts's house.

As explained in Professor LaFave's treatise on search and seizure law, "a search warrant for an apartment house or hotel or other multiple-occupancy building will usually be held invalid if it fails to describe the particular subunit to be searched". Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (5th ed. 2012), § 4.5(b), Vol. 2, pp. 731-32. To prevent the police from searching the subunits indiscriminately without probable cause, a search warrant for a multiple-occupancy building must normally be supported by a showing of probable cause as to each unit to be searched. See the cases cited in LaFave , § 4.5(b), n. 64, Vol. 2, pp. 732-33.

This multiple-occupancy rule does not apply in situations where a single residence is occupied by several people or families who share the common living quarters, even though they each have a separate bedroom. Id. , § 4.5(b), Vol. 2, p. 741. But in Pohland's case, as we have explained, her apartment was a suite that contained a separate kitchen, a separate bathroom, and clothes washing appliances.

Indeed, the search warrant application implicitly acknowledged that Pohland's apartment was a separate subunit within McRoberts's house. The application explained that McRoberts was Pohland's landlord, and the application expressly sought permission to search "any part of the residence ... that may be occupied or considered to be in the control of Ms. Pohland."

The proposed justification for searching Pohland's apartment was that McRoberts was Pohland's landlord, and that Pohland and McRoberts were close friends-thus suggesting that McRoberts might have gained access to Pohland's apartment and hidden evidence of her own crimes there.

In its decision, the district court ruled that the search of Pohland's apartment was lawful because the evidence presented at the later suppression hearing showed that McRoberts may have had physical access to Pohland's portion of the house. In particular, the district court relied on evidence that, even though the main door to Pohland's apartment could be locked, it was not locked when the troopers entered the house to execute the search warrant. From this, the district court concluded that "there was no evidence that Skye McRoberts was blocked from access to Pohland's apartment."

But it was not Pohland's burden to show that McRoberts was affirmatively blocked from access to her apartment. Rather, it was the State's burden to prove that McRoberts did, in fact, have access to Pohland's apartment. Moreover, this showing had to be made in the search warrant application itself, not from after-acquired information. And the critical question was not whether McRoberts was capable of physically entering Pohland's apartment. The issue here was whether the search warrant application offered reason to believe that McRoberts had control over Pohland's apartment to such a degree that she would use that apartment to hide evidence of her own wrongdoing.

Despite our questions about the district court's ruling on this issue, we conclude that we need not resolve these questions. As we explain in the next section of this opinion, even if we assume that the search warrant application established probable cause for a search of Pohland's separate apartment, the troopers' search of Pohland's laptop computer was unconstitutional.

Why we conclude that the search of Pohland's laptop computer was unconstitutional

In its brief to this Court, the State argues that the search of Pohland's laptop computer was justified under the principle that a search warrant for a residence generally authorizes the police to search personal effects found within the residence (so long as those containers are capable of concealing the evidence described in the warrant). See generally LaFave , § 4.10(b), Vol. 2, p. 946.

The State's argument rests on the premise that Pohland's laptop computer should be viewed as just another personal effect or closed container located in McRoberts's house. For the reasons we are about to explain, we reject this premise.

Portable computing devices-laptop computers, tablets, and smart phones-are distinguishing features of modern life. These devices have changed the way we communicate, and they have changed the way we create and store documents, personal communications and correspondence, photographs, and business records.

The contents of a person's laptop, tablet, or smart phone will often offer a compendium of that person's family and social life, their private and business interests, their recreational activities, and their intimate thoughts. And this digital technology is now practically ubiquitous. According to the Pew Research Center, over 90 percent of Americans own a cell phone, and the rate of computer ownership among adults is roughly 75 percent.

The prevalence of these digital devices has caused courts to re-think the contours of the Fourth Amendment's prohibition against unreasonable searches and seizures. As the United States Supreme Court noted in Riley v. California , 573 U.S. 373, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), a police search of this kind of digital device "[will] typically expose to the government far more than the most exhaustive search of a [person's] house", because the device "not only contains in digital form many sensitive records previously found in the home", but also "a broad array of private information never found in a home in any form". Riley , 573 U.S. at 396-97, 134 S.Ct. at 2491.

Although Riley itself dealt with the search of a cell phone, other courts have recognized that the rationale of Riley applies equally to computers and equivalent devices for storing electronic data. See United States v. Turner , 839 F.3d 429, 434 (5th Cir. 2016) ; United States v. Horton , 863 F.3d 1041, 1047 (8th Cir. 2017), cert. denied --- U.S. ----, 138 S.Ct. 1440, 200 L.Ed.2d 721 (2018).

As illustrated by the lengthy discussion that Professor LaFave devotes to this issue-see LaFave (5th ed. 2012), § 4.10(d), Vol. 2, pp. 962-971, and the accompanying pocket part (2017), pp. 113-15-courts have grappled with two related questions: First, what kind of probable cause must a court demand when the police seek authorization to search a personal computer or other digital device? And second, what level of particularity must a court demand when the court issues such a warrant?

Turning to the question of what kind of probable cause was needed to support the seizure and search of Pohland's laptop computer, we note that the search warrant in this case was issued to allow the troopers to search for evidence of crimes committed by McRoberts -the suspected crimes of forgery and falsification of business records. The troopers did not assert that Pohland was complicit in McRoberts's forgeries and falsifications of business records. Rather, the troopers' justification for searching Pohland's apartment at all was that McRoberts might have concealed evidence of her own wrongdoing inside Pohland's living space.

The warrant authorized the troopers to search for documents "related to the business and finances" of Skye McRoberts and her husband Donavahn. And because business and financial documents nowadays often take digital form, the warrant contained a provision that authorized the troopers to seize and search all the "computers and electronic storage media" within the house for such evidence.

(Technically, the warrant contained a clause that limited this search to only the computers and storage media that were "capable of concealing documents related to the business and finances associated with Donavahn McRoberts or Skye McRoberts". But as a practical matter, this was an authorization to search every computer and digital storage device in the house-because all such devices are "capable" of concealing business and financial documents.)

Putting all of this together, the troopers' rationale for searching Pohland's laptop computer was not because Pohland was suspected of being an accomplice to McRoberts's crimes, but rather because (1) McRoberts was suspected of business and financial wrongdoing, and (2) evidence pertaining to such crimes often takes the form of digital documents, spreadsheets, etc., and (3) McRoberts had physical access to Pohland's living space, and thus (4) McRoberts might have hidden digital evidence of her own crimes on the hard drive of Pohland's laptop.

This kind of speculation did not constitute probable cause to believe that the evidence the troopers were seeking-i.e. , documents pertaining to the business and finances of McRoberts and her husband-would be found on Pohland's laptop.

In their search warrant application, the troopers offered no explanation of why they thought that McRoberts could gain access to the hard drive of Pohland's laptop computer, even if McRoberts had physical access to Pohland's living space. The fact that Pohland's laptop was physically located in a rented apartment within McRoberts's house, and the fact that McRoberts was Pohland's landlord and close friend, does not give rise to the inference that McRoberts had access to the contents of the hard drive in Pohland's laptop. Laptop computers are normally equipped with security mechanisms that allow an owner to restrict access to the contents of the laptop by a password or by a similar identification mechanism, such as a fingerprint.

Nor did the troopers offer any explanation of why, even if McRoberts somehow gained access to the laptop's hard drive, McRoberts would choose to hide her business and financial documents on a laptop computer owned by Pohland-a readily portable device that was generally outside McRoberts's immediate control.

The State cites the Ninth Circuit's decision in United States v. Adjani , 452 F.3d 1140 (9th Cir. 2006), for the proposition that a search warrant can validly encompass computers and digital storage devices belonging to a third person who shares a house with the target of the investigation. But the facts of Adjani differ materially from the facts of Pohland's case.

In Adjani , the government was investigating a computer-based crime (extortion by threatening disclosure of a confidential database), and the government's search warrant affidavit expressly asserted that Adjani's girlfriend was involved in the extortion scheme, either as a witting accomplice or at least as an innocent agent who had been duped into performing acts that furthered the scheme. See Adjani , 452 F.3d at 1146-47 & n.4. The Ninth Circuit concluded that, in these circumstances, there was probable cause to believe that evidence of Adjani's computer-based crime could be found on his girlfriend's computer. Ibid.

In contrast, the search warrant application in Pohland's case did not assert that McRoberts had committed a computer-based crime, nor did it assert that Pohland was actively participating in McRoberts's criminal scheme. And as we have explained, the mere fact that Pohland's laptop was physically located in an apartment within McRoberts's house did not give rise to the inference that McRoberts could access the contents of the laptop's hard drive, nor did it give rise to the inference that McRoberts was likely to hide evidence of her own crimes on a computer that was controlled by Pohland.

Accordingly, we hold that the search warrant application did not establish probable cause to seize and search Pohland's laptop computer.

In addition, the troopers did not confine their search of Pohland's computer to the materials specified in the search warrant. As we have explained, the warrant authorized the troopers to search for digital business and financial records-specifically, digital records related to the business and finances of McRoberts and her husband-to the extent that these records were evidence of McRoberts's suspected crimes of forgery and falsification of business records.

Because a modern personal computing device stores and indexes a huge array of information about the private affairs and communications of its owner, all in one place, an authorization to search any and all computing devices and electronic storage devices can easily become the sort of general warrant that the Fourth Amendment was designed to guard against. This is a situation where "the greatest care in [drafting a search warrant's] description is required", since the likelihood "of [the] seizure of innocent articles by mistake is the most substantial." Accordingly, courts have insisted that warrants for a digital storage device provide a reasonably specific description of the material that the police can search for within the device.

In Pohland's case, as we have already explained, the search warrant authorized the troopers to seize and search all the computers and digital storage devices in McRoberts's house for digital business and financial records-more specifically, records related to the business and finances of McRoberts and her husband-to the extent that these business and financial records were evidence of McRoberts's suspected crimes of forgery and falsification of business records.

But when the troopers searched Pohland's laptop, they did not restrict their search to business and finance documents that Skye McRoberts might have hidden on Pohland's computer. Instead, the troopers conducted a comprehensive examination of the contents of Pohland's laptop-including Pohland's backup of the text messages from her mobile phone. The troopers examined thousands of these text messages, looking for any communication between Pohland and McRoberts, and some of the most important evidence against Pohland was discovered among these text messages.

By searching through these text messages, the troopers exceeded the boundaries of any search that the warrant might reasonably have authorized, given the warrant's description of what could be seized.

For these reasons, we conclude that the search of Pohland's laptop computer violated the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Alaska Constitution. The evidence against Pohland obtained as a result of that search must be suppressed.

Conclusion

The judgement of the district court is REVERSED.

Order

Upon consideration of the petition for rehearing filed by the State of Alaska, IT IS ORDERED:

This Court's earlier decision in this case, Pohland v. State , Opinion No. 2624, issued on November 23, 2018, is WITHDRAWN and is SUPERSEDED by Opinion No. 2632, to be issued on February 1, 2019.

Entered at the direction of the Court.

      573 U.S. 373, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014).

      Riley , 573 U.S. at 396-98, 134 S.Ct. at 2491.

      See 08 AAC 97.060(c).

      See "Technology Device Ownership: 2015" (Oct. 29, 2015), available at: http://www.pewinternet.org/2015/10/29/technology-device-ownership-2015.

      LaFave , § 4.6(a), Vol. 2, p. 774.

      See United States v. Russian , 848 F.3d 1239, 1245-46 (10th Cir. 2017) (holding that a search warrant for a smart phone was insufficient because it failed to specify the particular material being sought); State v. Henderson , 289 Neb. 271, 854 N.W.2d 616, 632-34 (2014) (invalidating a warrant for the search of a cell phone because the warrant failed to limit the search to the content that was related to the probable cause); State v. Castagnola , 145 Ohio St.3d 1, 46 N.E.3d 638, 657-58 (2015) (holding that a search warrant application must be clear as to what the police are seeking on a computing device, and striking down a warrant that permitted the police to examine every record and document on the defendant's computer to find any evidence of the defendant's alleged crimes); Buckham v. State , 185 A.3d 1, 18-19 (Del. 2018) (striking down a warrant that authorized the police to search "any and all store[d] data contained within the internal memory" of the defendant's smart phone for evidence of a shooting: "warrants issued to search electronic devices call for particular sensitivity" in light of the "enormous potential for privacy violations" posed by unconstrained searches of these devices).

      The search warrant in this case authorized the seizure of the following documents and records:
      • "bank statements, cancelled checks, and other records for bank accounts, investment accounts, CDs, IRAs, 401Ks, or other accounts"
      • "income tax records ... and any correspondence from the IRS"
      • "loan information from any source"
      • "business documents including mailing receipts, invoices, payment records, accounts receivable, employee payments, business expenses, and any other documentation of Grizzly Mail and Print Service or [any other] mail and print service ... operated by Donavahn McRoberts [or two other named persons] and/or Skye McRoberts"
      • "correspondence regarding collection of debts owed by Skye McRoberts or Donavahn McRoberts"
      • "documents for use in soliciting interest from potential bargaining union members"


author: Judge ALLARD.

text:
    Wilson William FOX, Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-12640
    Court of Appeals of Alaska.
    February 1, 2019
    Megan M. Rowe, Denali Law Group, P.C., under contract with the Office of Public Advocacy, Anchorage, for the Appellant.
    John K. Bodick, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
    Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.

      Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).

   Judge ALLARD.

Wilson William Fox appeals the superior court's dismissal of his application for post-conviction relief. Fox argues that the superior court erred when it upheld the Alaska Parole Board's decision to deny him 18 days of credit against his sentence. For the reasons explained here, we affirm the superior court's ruling.

Background facts and prior proceedings

In 1983, Wilson William Fox was convicted of second-degree murder and sentenced to 60 years with 30 years suspended (30 years to serve) and 5 years' probation. In 2007, Fox was released on mandatory parole. Approximately a year later, Fox tested positive for marijuana on two separate occasions. The two positive drug tests occurred less than a month apart. The second time that Fox tested positive for marijuana, his parole officer gave Fox the choice of either (1) residing at the Tundra Center, a community residential center (CRC), or (2) having the parole officer file a parole violation report-in which case Fox would be arrested and he would face possible revocation of his parole and additional incarceration.

Fox chose to live temporarily at the Tundra Center, although he actively sought approval from his probation officer for alternative housing. After about 18 days, Fox was allowed to leave the Tundra Center to stay at his grandmother's house. Approximately two years later, in 2010, Fox wrote to the parole board requesting that he receive credit against his sentence for the 18 days he spent at the Tundra Center. The parole board did not respond to this request.

In 2013, Fox's parole was revoked based on his consumption of alcohol. At the final parole hearing, the parole board granted Fox a discretionary parole release subject to his successful completion of a residential substance abuse treatment program while he was incarcerated. The parole board ultimately granted Fox credit against his sentence for time he spent at various facilities, (including a different stint at the Tundra Center), but the board denied Fox credit for the 18 days at issue here.

Fox filed an application for post-conviction relief in the superior court, arguing, inter alia , that he was entitled to these extra 18 days of credit under State v. Shetters . The State argued that Fox was not entitled to this credit under Shetters because Fox had voluntarily agreed to stay at the Tundra Center, and he had not been placed there by order of the parole board. An evidentiary hearing was held, and both parties moved for summary disposition on Fox's claim for credit.

The superior court subsequently issued an order affirming the parole board's denial of Fox's request for credit. In reaching this decision, the court relied on our prior decision in State v. Fortuny . In Fortuny , we held that a defendant is not entitled to Nygren credit for the time the defendant spent voluntarily at a residential treatment program without a court order placing the defendant in treatment. We reasoned that, without a court order requiring him to be there, the defendant could not be considered to be subject to conditions approximating incarceration for purposes of obtaining Nygren credit because the defendant was free to leave the treatment program at any time.

In its ruling in the present case, the superior court acknowledged that there is a difference between a treatment program and a CRC because a defendant cannot stay at a CRC without some affirmative action by the court, the parole board, or a parole or probation officer. But the court concluded that the underlying reasoning of Fortuny still applied-that a defendant who voluntarily chose to reside at the CRC was not subject to conditions approximating incarceration for purposes of obtaining Nygren or Shetters credit. The court therefore ruled that Fox was not entitled to Shetters credit for the 18 days he voluntarily spent at the CRC because "Mr. Fox did have options, even if he perceived them to be less desirable" than staying at the CRC for a short period of time.

This appeal followed.

Why we affirm the superior court's ruling

On appeal, Fox argues that the superior court erred when it concluded that he was at the CRC voluntarily. Fox points out that a defendant cannot just check himself into a CRC in the same manner he can check himself into a residential treatment program. Instead, a defendant must be affirmatively placed at a CRC by the Department of Corrections, the parole board, the court, or through arrangements made by his parole (or probation) officer. Fox therefore contends that, by definition, there are no "voluntary" placements at a CRC, even if the defendant willingly agrees to temporarily reside there.

For its part, the State contends that because there was no parole condition or parole board order requiring Fox to reside at the Tundra Center, Fox must necessarily have been there voluntarily. The State also suggests that parole officers lack the authority to unilaterally place a person at a CRC, and therefore all such placements are voluntary.

Even assuming that parole officers do not have the authority to unilaterally order a parolee to reside at a CRC (a question we need not decide here), we reject the State's contention that this automatically means the parolee was at the CRC "voluntarily." What matters is how the parolee's consent was obtained-in particular, whether it was obtained through a coercive claim of authority, even if that authority did not actually exist. Indeed, we can perceive many reasons for trial judges to be skeptical of the "voluntariness" of such placements, given the potentially coercive nature of a parole officer's "request."

At the same time, we disagree with Fox's contention that all such placements are inherently involuntary and the equivalent of incarceration. Here, the court held an evidentiary hearing and determined that Fox's placement at the CRC was voluntary. This finding is supported by the record, which shows that Fox was made aware that he was not being ordered to the CRC, and that Fox understood that he could refuse to be placed there. There is also nothing in the record to suggest that Fox was prohibited from leaving the CRC if he wished, or that he would have faced any penalties for doing so-other than being subject to the original petition to revoke probation that he was able to avoid by choosing to temporarily reside at the CRC. The record also shows that Fox's stay was short, and that it was marked by Fox's ultimately successful efforts to get approval for alternative housing.

Given these circumstances, we conclude that the superior court did not err when it upheld the parole board's decision to deny Fox credit against his sentence for the 18 days that Fox spent at the Tundra Center.

Conclusion

The judgment of the superior court is AFFIRMED.

      Fox also raises another claim on appeal related to the parole board's authority to set a precondition for release on discretionary parole. Shortly after this appeal was initially filed, Fox was released from incarceration, rendering this claim moot.

      State v. Shetters , 246 P.3d 332, 337-38 (Alaska App. 2010) (holding that a parolee is entitled to day-for-day plus good time credit for the time spent at a CRC if the parolee has been ordered to reside at the CRC by the parole board).

      The State also argued that Fox's application was untimely and that Fox was required to file a grievance followed by an application for post-conviction relief after the parole board did not respond to his initial request for credit. The superior court did not address this timeliness question in its ruling, and we need not address it in this decision.

      State v. Fortuny , 42 P.3d 1147 (Alaska App. 2002).

      Fortuny , 42 P.3d at 1149-50 ; see also State v. Judson , 45 P.3d 329, 332 (Alaska App. 2002) ; Anchorage v. Bussell , 702 P.2d 667, 668-69 (Alaska App. 1985) ; Nygren v. State , 658 P.2d 141 (Alaska App. 1983).

      Fortuny , 42 P.3d at 1149-50 (citing Bussell , 702 P.2d at 668-69 ).

      Cf. Bumper v. North Carolina , 391 U.S. 543, 548-49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) ("Consent [is not] freely and voluntarily given ... [when it is] no more than acquiescence to a claim of lawful authority."); 4 Wayne R. LaFave, Search and Seizure , § 8.2(a), at 71 (5th ed. 2012) ("One factor very likely to produce a finding of no consent ... is an express or implied false claim by the police that they can immediately proceed to make the search in any event.").


text:
    Caroline K. SWARTZ, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
    Court of Appeals No. A-12810
    Court of Appeals of Alaska.
    February 15, 2019
    Shaul L. Goldberg, Denali Law Group, Anchorage, for the Appellant.
    Sarah E. Stanley, Assistant Municipal Prosecutor, and William D. Falsey, Municipal Attorney, Anchorage, for the Appellee.
    Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges.
   Judge ALLARD.

In January 2015, Caroline K. Swartz pleaded guilty to driving while license suspended or revoked in violation of the Anchorage Municipal Code. Pursuant to a Criminal Rule 11 agreement, Swartz was sentenced to 90 days' imprisonment with 90 days suspended, a $500 fine with $250 suspended, 3 years' probation, and 80 hours of mandatory community work service - i.e. , community work service hours that were mandated by the municipal ordinance as a condition of her probation.

As part of her plea agreement, Swartz agreed that she would complete her community work service hours within six months, and she further agreed that any uncompleted portion of the 80 hours of community work service "will convert to jail" if it was not completed by the court's deadline. No conversion rate was specified in the plea agreement.

Swartz ultimately completed only 8 hours of the mandated 80 hours of community work service, leaving 72 hours uncompleted. The Municipality petitioned the court to revoke Swartz's probation and argued that the 72 hours of community work service should be automatically converted into 9 days in jail pursuant to the plea agreement.

The court held a hearing on the petition in February 2017. At that hearing, Swartz argued that the court had no authority to convert her community work service to jail time because the Alaska legislature had recently amended state law to prevent such conversions. Swartz also argued that conversion to jail time was impermissible even before the change of law under our 2000 decision, State v. Fogg . The Municipality argued that the change in law did not apply to Swartz's case and that Fogg was inapplicable. According to the Municipality, the court had the authority to convert community work service hours into jail time under the municipal code. The Municipality also emphasized that Swartz had agreed to the conversion as part of her original plea agreement.

The district court judge agreed with the Municipality and imposed 9 days of jail time for the 72 hours of uncompleted community work service. Swartz now appeals, arguing that the 9 days of jail time was unlawfully imposed. For the reasons explained here, we conclude that the court erred in imposing the 9 days of jail time.

Why we conclude that the court erred when it imposed 9 days of jail time

In 2016, the Alaska legislature amended AS 12.55.055 to expressly prohibit courts from converting uncompleted community work service hours into jail time. Subsection (g) of AS 12.55.055 now declares:

(g) The court may not
(1) offer a defendant convicted of an offense the option of serving jail time in lieu of performing uncompleted community work previously ordered by the court; or
(2) convert uncompleted community work hours into a sentence of imprisonment.

The legislature also added subsection (h) to AS 12.55.055, which requires the court to instead convert any uncompleted community work hours into a monetary fine according to a specified formula.

Both of these provisions went into effect on July 12, 2016, and they are applicable to all "community work service imposed on or after [July 12, 2016] for offenses committed on or after [that] effective date." Thus, if Swartz were being sentenced for conduct occurring on or after July 12, 2016, there would be no question that the court would not be permitted to convert her uncompleted community work service to jail time.

The complication we face in Swartz's case is that the community work service hours at issue here were imposed in 2015, prior to the change in state law. Moreover, the parties specifically agreed, as part of their plea agreement, that any uncompleted community work service hours would be converted to jail time. Seemingly, then, the question before us is whether this provision of the plea agreement is enforceable despite the change in the law.

But we conclude that we need not resolve that question in the context of this case. Rather, we conclude that the conversion provision of the plea agreement is not enforceable for a different reason: The provision fails to define a material term of the agreement - namely, what conversion rate should apply.

One reasonable interpretation of the agreement is that one hour of community work service would equal one hour in jail. Thus, 72 hours of community work service left incomplete would mean 72 hours (3 days) in jail. However, at Swartz's probation revocation sentencing, the district court judge viewed the community work service hours as comprising ten 8-hour work days, with each of these ten days translating into a full 24-hour day in jail. Thus, the district court concluded that Swartz's remaining 72 hours of community work service translated into 9 days of jail time. This is the sentence the court imposed.

Given the failure of the parties to identify the conversion rate that would apply here, we strike as unenforceable the provision of the plea agreement requiring uncompleted community work service hours to convert to jail time. The Municipality is free to seek withdrawal from the plea agreement if it believes that the failure of this provision materially alters or defeats the plea agreement. Alternatively, the parties may simply renew the probation revocation proceedings, and the district court may revoke an appropriate portion of Swartz's suspended jail time, in accordance with the Chaney criteria, for Swartz's failure to complete the community work service required by her conditions of probation.

Conclusion

The judgment of the district court is VACATED, and this case is remanded for further proceedings in accordance with the guidance provided here.

      See Anchorage Municipal Code (AMC) 09.28.019.

      See former AMC 09.28.019.B, C (2014) (requiring court to impose 80 hours of community work service as a mandatory condition of probation for a defendant's first conviction for driving while license suspended/revoked); see also former AS 28.15.291 (2014) (imposing the same requirement under state law). In 2016, both the Municipality and the State eliminated the mandatory community work service hours for this offense. See AO 2016-83(s) § 6; SLA 2016, ch. 36, § 105.

      State v. Fogg , 995 P.2d 675 (Alaska App. 2000).

      SLA 2016, ch. 36, § 76.

      Subsection (h) provides:
      (h) If a court orders community work as part of the defendant's sentence under this section, the court shall provide notice to the defendant at sentencing and include as a provision of the judgment that if the defendant fails to provide proof of community work within 20 days after the date set by the court, the court shall convert those community work hours to a fine equal to the number of uncompleted work hours multiplied by the state's minimum hourly wage and issue a judgment against the defendant for that amount.
      AS 12.55.055(h) ; see also SLA 2016, ch. 36, § 76.

      SLA 2016, ch. 36, § 185(f)(3).

      It is not clear where this conversion rate comes from. It is possible that it was reverse engineered from AS 12.55.055(d), which permits sentencing courts to offer a defendant the option of performing community work service in lieu of a sentence of imprisonment at a substitution rate of 8 hours of community work for each day of imprisonment. But such reverse engineering is contrary to our reasoning in Fogg . See State v. Fogg , 995 P.2d 675, 676-77 (Alaska App. 2000) (concluding that the trial court's ability to convert statutorily-mandated community work service hours into other penalties is limited to what the legislature expressly authorized).

      See State v. Chaney , 477 P.2d 441, 444 (Alaska 1970) ; AS 12.55.005 (codifying the Chaney criteria).