Samson v. State

COATS, Judge.

In December of 1992, a grand jury indicted Michael J. Samson on two counts of misconduct involving a controlled substance in the fourth degree. AS 11.71.040(a)(3)(A),(F). Samson filed a motion to suppress evidence which the police had obtained with two search warrants. The first warrant authorized the police to obtain the records of Golden Valley Electrical Association which showed the history of electrical power consumption at Samson’s residence. The second warrant, which was based in part on the records of Samson’s electrical power consumption obtained with the first warrant, authorized the police to search Samson’s residence. During the search of Samson’s residence the police seized two large marijuana plants and a small amount of psilocybin.

In his motion to suppress, Samson contended that the state had not presented sufficient probable cause to justify the magistrate’s decision in issuing a warrant for the records of his electrical power consumption. After Superior Court Judge Ralph R. Beist-line denied Samson’s motion, Samson entered *172a no contest plea, reserving his right to appeal the court’s denial of his motion to suppress under Cooksey v. State, 524 P.2d 1251 (Alaska 1974).

On appeal, this court concluded that the state had not established probable cause to authorize the magistrate to issue a warrant for the records of Samson’s power consumption. Samson v. State, Memorandum Opinion and Judgment No. 3007 (Alaska App., October 12,1994). We determined, however, that this conclusion was not dispositive:

However, we do not believe that this conclusion necessarily means that Judge Beistline erred in denying Samson’s motion to suppress. It is possible that the state did not need a search warrant to obtain the power-usage information. In State v. Chryst, 793 P.2d 538 (Alaska App.1990), we stated:
In determining whether [a person’s] right to privacy was infringed we apply a two-part test: first, whether [the person] exhibited a subjective expectation of privacy; and second, whether society is pre-pared to recognize that expectation of privacy as reasonable.

Id. at 539-40 (citations omitted). We pointed out that:

Different courts have arrived at different conclusions concerning what information is protected by a constitutional right of privacy. The federal position is set forth in United States v. Miller, 425 U.S. 435, 440-43, 96 S.Ct. 1619, 1622-24, 48 L.Ed.2d 71 (1976). In that case the United States Supreme Court held that a bank customer had no reasonable expectation of privacy that society was prepared to recognize in financial statements which he had voluntarily turned over to a bank[.]
Id. at 540. We pointed out that Professor LaFave had strongly criticized the Miller decision in his treatise. Wayne R. La-Fave, Search and Seizure, § 2.7(c), at 511-17 (2d ed.1987). We also pointed out that “[t]he states of Washington and California have construed the provisions of their state constitutions which, like Alaska, have a specific provision guaranteeing a right to privacy, to protect some information which customers have given to the utility companies for the purpose of obtaining services.” Chryst, 793 P.2d at 540. Under the particular facts of Chryst, we held that an individual did not have a reasonable expectation of privacy in his name and address when police had obtained that information from a public utility.
The issue of whether Samson had a reasonable expectation of privacy in his power-usage records is an issue that was not raised or considered in the trial court. In the absence of any factual context for determining whether Samson had a subjective expectation of privacy in his utility records or the reasonableness of that expectation, we have no basis for resolving this issue on appeal. We accordingly remand this case to the trial court for further proceedings consistent with this decision.

Id. at 6-7.

On remand, following an evidentiary hearing, Judge Beistline first concluded that Samson had not shown that he had a subjective expectation of privacy in the utility records. He found that Golden Valley Electrical Association had a written policy “that all information obtained by employees in the course of employment, including records of usage, will not be supplied to a third party without either the owner’s permission or a court order.” However, he found that “no evidence was presented at the hearing that Samson was aware of this policy or that he otherwise harbored a subjective expectation of privacy.”1

Judge Beistline also concluded that, even if he were to assume that Samson had a subjective expectation of privacy, society was not prepared to recognize that expectation of privacy as reasonable. Judge Beistline re*173lied on People v. Dunkin, 888 P.2d 305 (Colo.App.1994), cert. denied, Smith v. Colorado, — U.S. -, 115 S.Ct. 2251, 132 L.Ed.2d 259 (1995), and State v. Kluss, 125 Idaho 14, 867 P.2d 247 (App.1993), in reaching his decision. Although both of these courts concluded that their state constitutions provided for greater privacy protection than federal law, both courts held that society was not prepared to recognize a reasonable expectation of privacy in utility records. People v. Dunkin, 888 P.2d at 307-08; State v. Kluss, 867 P.2d at 252-54. Judge Beistline specifically relied on the following language from State v. Kluss:

In order to have electricity, Kluss was obliged to obtain the same from [his utility company.] Kluss did nothing to create the records except consume power. The power records in the case at bar reveal only the amount of power usage. The power records were maintained by [the utility company] in the ordinary course of business. They do not identify any activities of Kluss. On a comparative basis they may demonstrate that the power use at the Kluss home is greater or lesser than similar houses or at similar times or that the power use has increased or decreased at different times. The information does not provide any intimate details of Kluss’s life, identify his friends or political and business associates, nor does it provide or complete a “virtual current biography.” The power records, unlike telephone or bank records, do not reveal discrete information about Kluss’s activities. High power usage may be caused by any one of numerous factors: hot tubs, arc welders, poor insulation, ceramic or potter kilns, or indoor gardening under artificial lights.

Id. at 254.

We also find the reasoning of Kluss and Dunkin persuasive. Although we recognize that neither Colorado nor Idaho have a privacy amendment to their constitution similar to Alaska’s,2 both states have interpreted their constitutions to provide more protection to the right to privacy than is provided under the federal constitution. State v. Kluss, 867 P.2d at 252-53; People v. Dunkin, 888 P.2d at 307. We are persuaded by the reasoning of Kluss that utility records are maintained by the utility and do not constitute information in which society is prepared to recognize a reasonable expectation of privacy. We accordingly affirm Judge Beistline’s order denying Samson’s motion to suppress.

AFFIRMED.

. After the evidentiary hearing, Samson filed an affidavit which stated he was aware of the policy. Judge Beistline rejected the affidavit as "unpersuasive.”

. Article 1, section 22, of the Alaska Constitution provides: "The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section."