Samson v. State

MANNHEIMER, Judge,

with whom BRYNER, Chief Judge, joins, concurring.

This case raises the question of whether the customers of an electric utility are protected by the warrant clauses of the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Alaska Constitution when the government seeks information from the utility’s records regarding a customer’s amount of electricity usage. Like my colleagues, I conclude that such records do not command the same privacy protection as bank records. Bank records list the details of a customer’s financial dealings — names of debtors, creditors, and most others with whom the customer does business. On the other hand, electric utility records of a customer’s gross electricity usage reveal no details of the activities that consumed the electricity. I therefore agree that, at least for search and seizure purposes, Samson had no protected privacy interest in the utility’s records of his electricity usage.

I am writing a separate concurrence because the facts of Samson’s case raise another legal issue — the requirement of standing to contest an illegal search or seizure. As I said in the preceding paragraph, I agree that the police need not obtain a warrant to inspect or copy utility records if the utility voluntarily opens its records to the police. In Samson’s case, however, the electric company did not voluntarily open its records to the police. Instead, the police obtained a warrant for Samson’s records and served this warrant on the company. In our first opinion in this ease, we ruled that this warrant was not supported by adequate probable cause; thus, Samson’s electricity records were seized illegally. Samson v. State, Memorandum Opinion No. 3007 (Alaska App., October 12,1994).

Because these records were compiled and kept by Golden Valley Electric, and because the records were seized from the electric company’s premises, Golden Valley clearly would be entitled to seek suppression of this evidence if the government ever attempted to use these records in a criminal prosecution of the electric company. But Samson is in a different legal position because, normally, a person has no standing to seek suppression of evidence belonging to and illegally seized from someone else. Brown v. United States, 411 U.S. 223, 230, 93 S.Ct. 1565, 1570, 36 L.Ed.2d 208 (1973) (“Fourth Amendment rights are personal rights which ... may not be vicariously asserted.”) (quoting Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969)). The records in this case did not belong to Samson, and they were not seized from his possession; moreover, as we now hold, Samson had no protected expectation of privacy in the contents of those records. Thus, under traditional rules of standing, Samson could not complain that the police relied on an invalid warrant to obtain the records.

In Waring v. State, 670 P.2d 357 (Alaska 1983), the Alaska Supreme Court augmented the scope of the traditional standing rule: under Alaska law, a defendant has standing to seek suppression of illegally seized property belonging to someone else if the defendant shows that he or she was the target of the search and seizure violation. However, to obtain this vicarious standing, the defendant must show that the police purposely violated another person’s rights in order to obtain evidence which they intended to use, not against this third person, but against the defendant. Waring, 670 P.2d at 362-63.

The Waring rule does not apply to Samson’s case because the police did not purposely violate Golden Valley Electric’s rights. The police believed that they had a valid warrant for the records. Thus, under either the traditional standing rule or even the modified standing rule announced in Waring, Samson and other customers like him do not have standing to contest the seizure of the utility’s records.

Moreover, in a criminal prosecution brought against one or more of the utility’s customers, the utility company would have no standing to assert the violation of its own Fourth Amendment rights (because the utility company would not be a party). See Rakas v. Illinois, 439 U.S. 128, 132 n. 2, 99 S.Ct. 421, 425 n. 2, 58 L.Ed.2d 387 (1978) (“[A] person whose Fourth Amendment rights were violated by a search or seizure, but who is not a defendant in a criminal action in which the illegally seized evidence is sought to be introduced, [has no] standing to invoke the exclusionary rule to prevent use of that evidence in that action.”); Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (3rd ed.1996), § 11.3, Vol. 5, p. 117.

Thus, under traditional standing rules, neither the utility nor its customers have standing to protest the use of illegally seized records that the government uses as evidence in a criminal prosecution brought against a customer. This result could conceivably lead to abuses: knowledge that no one will have standing to oppose the fruits of illegal searches and seizures of a utility’s records may encourage the police to recklessly disregard Fourth Amendment protections when dealing with utilities and similar record-keeping businesses.

Waring provides some protection against such abuses: under Waring, vicarious standing could be granted to a utility customer in cases where the police had engaged in “gross or shocking misconduct”. 670 P.2d at 363. But in addition, if this court were presented with evidence of repeated or flagrant Fourth Amendment violations by the police when they searched utilities or other businesses that compile similar records, then this court would be obliged to re-examine the current limits of the standing rule. With this caveat, I join in the court’s decision.¹

1 . In this regard, I note that this court has recently reviewed two cases in which warrants were issued to search people’s homes, based in part on previously obtained electricity consumption records. In each case, we found that the search warrant for the defendant’s home was issued without probable cause. See Lloyd v. State, 914 P.2d 1282 (Alaska App.1996), and Carter v. State, 910 P.2d 619 (Alaska App.1996).

In both Lloyd and Carter, the electricity records that supported the search warrant applications were themselves seized under prior warrants. We were not asked to rule on the validity of those prior warrants. But if the warrants for Lloyd’s and Carter’s homes were issued without probable cause, it would seem likely that the previously obtained electricity records were also seized without probable cause.