Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT

Judge ALLARD.

Wassillie W. Johnston pleaded guilty to sexual abuse of a minor in the third degree.1 The sentencing judge imposed several special conditions of probation over Johnston's objection. These conditions prohibited Johnston from possessing "sexually explicit material" or entering any establishment whose primary business is the sale of "sexually explicit material." They also required Johnston, upon the request of his probation officer, to submit to searches by a probation officer or other law enforcement officers for the presence of "sexually explicit material."

Johnston contends that these conditions are unrelated to the specific circumstances of his case and are not reasonably related to either his rehabilitation or protection of the public. Johnston further contends that the conditions implicate First Amendment constitutional concerns and that the term "sexually explicit material" is unconstitutionally vague and overbroad. Johnston also argues that the search condition delegates too much authority to law enforcement officers.

For the reasons discussed below, we conclude that the search condition does not delegate too much authority to law enforcement officers but that a remand is required for the other issues raised in this appeal.

Factual background

On December 18, 2010, L. S., 17 years old, and Wassillie Johnston, 18 years old, were talking and drinking whiskey at L.S.'s father's house with H.D., 14 years old, and A.A., 16 years old. H.D. and Johnston went into a bedroom and had sexual intercourse, which H.D. described as consensual. L.S. and A.A. were having sex in a different room.

Afterwards, H.D. went back into the living room and consumed more whiskey. She told A.A. that she could not believe she "did that." Johnston left, and H.D. then had sexual intercourse with L.S., which she also described as consensual.

Under AS 11.41.436, a defendant 17 years or older who engages in sexual penetration with a person who is 13, 14, or 15 years of age and at least four years younger than the defendant is guilty of sexual abuse of a minor in the second degree, a class B felony.2 Johnston was slightly more than four years older than H.D.; L.S. was slightly less than four years older than H.D.

Johnston was later indicted on one count of sexual abuse of a minor in the second degree.3 Pursuant to a plea agreement, Johnston pleaded guilty to sexual abuse of a minor in the third degree.4 Johnston was sentenced to 5 years of imprisonment with 3 years suspended, followed by a 5 year probationary period.

The plea agreement left open special conditions of probation. The probation officer who wrote the presentence report proposed a list of general and special conditions of probation, including the following three special conditions at issue in this appeal:

At sentencing, Johnston objected to the imposition of these conditions, arguing that they were not reasonably related to his rehabilitation or closely tailored to the circumstances of his case, which involved an otherwise consensual sexual encounter with a person less than five years younger than him. Johnston pointed out that there were no allegations that Johnston had been sexually aggressive or predatory and no suggestion that pornography or sexually explicit materials played any role in the offense.

The prosecutor argued that keeping Johnston away from pornography would further his sex offender treatment and his rehabilitation. The prosecutor analogized it to a no-alcohol provision in a crime involving alcohol abuse: "[I]t's kind of like saying to an alcoholic, you know, you can't drink anymore and we're going to give you treatment so you can't drink, but sit here in this bar with people drinking around you."

Superior Court Judge John Wolfe imposed the special conditions without making any findings or explaining his reasons for doing so. This appeal followed.

The challenged probation conditions implicate First Amendment concerns and are subject to special scrutiny.

Johnston contends that the challenged probation conditions implicate his First Amendment rights and are therefore subject to special scrutiny. The State does not respond to this argument and instead analyzes Johnston's probation conditions as though they do not infringe on constitutional rights. But Johnston is correct — the First Amendment provides constitutional protection to many forms of expression, including sexually explicit material.5

As a general matter, conditions of probation must be "reasonably related to the rehabilitation of the offender and the protection of the public and ... not unduly restrictive of liberty."6 Conditions that restrict constitutional rights are subject to special scrutiny to determine whether the restriction is necessary to promote the goals of rehabilitation of the offender and protection of the public.7 Before imposing a probation condition that restricts a constitutional right, the trial court must affirmatively consider and have good reason for rejecting any less restrictive alternatives which might be available.8

Here, the record is silent as to why these conditions were imposed in Johnston's case and whether less restrictive alternatives were considered. On appeal, the State points to a number of studies that suggest viewing pornography, particularly violent pornography, may inhibit some sex offenders' rehabilitation. The State argues that these studies provide a basis for imposing these types of conditions. But none of these studies was presented to the superior court, and they were not part of the superior court's decision-making process.9 Moreover, the probation restrictions at issue here extend beyond the "aggressive" pornography described in the studies cited by the State; the challenged restrictions include all "sexually explicit material," even the type of sexually explicit material that is now relatively commonplace within mainstream media, cable television shows, and movies.

In Diorec v. State, we recently ordered a sentencing court to reconsider similar probation conditions on the grounds that the term "sexually explicit material" was too vague and did not provide constitutionally adequate notice of what materials were prohibited.10 Diorec involved a defendant who was convicted of unlawful exploitation of a minor for surreptitiously filming his stepdaughter naked and masturbating in her bedroom. Unlike in Johnston's case, the superior court made specific findings supporting the imposition of these conditions. The superior court found that Diorec "was essentially involved in the production of pornography" and had been found with other pornography on his computer, which led it to conclude that the possession of pornography was not going to assist Diorec in his rehabilitation.11 We upheld the superior court's conclusion that this type of restriction was reasonably related to Diorec's offense and the goals of rehabilitation and protection of the public, but we nevertheless directed the superior court to clarify what "sexually explicit materials" were prohibited under these conditions.12 We noted that the court had interpreted the prohibition to apply only to "pornography," but that the term "pornography" was itself vague and that courts upholding these types of conditions had generally done so because the term was tied to a more specific statutory definition.13

Here, there were no findings supporting the imposition of these restrictions, and no clarification of what these restrictions mean. The superior court must affirmatively determine whether, and to what extent, these conditions are reasonably necessary to promote Johnston's rehabilitation and protection of the public. If the superior court determines that these restrictions, or modified versions of these restrictions, are appropriate and necessary, the superior court should also ensure that Johnston receives constitutionally adequate notice of exactly what types of materials are prohibited under these conditions.

The search condition does not delegate too much authority to law enforcement

Johnston's Special Condition of Probation Number 19 provides that "[u]pon request or at the direction of the probation/parole officer the defendant shall submit to a search ... by a probation officer or other law enforcement officer for the presence of sexually explicit material." Johnston argues that this condition delegates too much authority to law enforcement because he construes the condition as requiring him to submit to a warrantless search if requested to do so by his probation officer even if the warrantless search is initiated by law enforcement officers.

We construe the condition differently, as does the State in its briefing. We construe the condition, in accordance with Roman v. State, as permitting a probation officer to enlist law enforcement to conduct a warrantless search of a probationer for "sexually explicit material" when the probation officer has himself or herself requested and authorized the search.14 We do not construe the condition as permitting law enforcement officers on their own initiative to conduct a warrantless search of a probationer, even if they have the permission of the probation officer.

Conclusion

Special Probation Conditions 17, 18, and 19 are VACATED and this case is remanded to the superior court for reconsideration of whether those conditions are reasonably related to Johnston's rehabilitation and protection of the public and whether they are necessary and closely tailored to the specific needs of Johnston's case.

The superior court shall issue a new decision regarding the contested conditions of probation within 90 days, and shall provide a copy of its decision to this Court. If the superior court again imposes the contested conditions, or modified versions of these conditions, the court shall make findings as to why these conditions are necessary, given Johnston's offense and background, and why less restrictive conditions would not satisfy the goals of rehabilitation and protection of the public.

After the superior court issues its decision, Johnston shall have 30 days to file a memorandum addressing the court's decision. If Johnston chooses to file a memorandum, the State shall have 30 days to file a responding memorandum. These memoranda need not comply with Appellate Rule 212(c).

Upon receipt of these supplemental memoranda (or the expiration of the time for filing memoranda), this Court will renew its consideration of this appeal.