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THE COURT OF APPEALS OF THE STATE OF ALASKA
THOMAS H. CHANDLER, )
) Court of Appeals No. A-3369
Appellant, ) Trial Court No. 1KE-S88-1148CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1220 - April 17, 1992]
______________________________)
Appeal from the Superior Court of the State
of Alaska, First Judicial District,
Ketchikan, Thomas M. Jahnke and Thomas E.
Schulz, Judges.
Appearances: Walter Share, Seattle, and
David B. Loutrel, Anchorage, for Appellant.
Jill De La Hunt, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
Thomas H. Chandler pled no contest to a charge of
possessing cocaine (misconduct involving a controlled substance
in the third degree), reserving his right to appeal the superior
court's denial of a motion to suppress evidence, in which
Chandler argued that the evidence against him resulted from an
unlawful search and seizure. Chandler now appeals. We reverse.
On September 30, 1988, Carl Ekman, a special agent for
the Federal Drug Enforcement Agency (DEA), was in Ketchikan
conducting an airport interdiction seminar for the Ketchikan
Police Department. As part of the seminar, Ekman and several
officers went to the Ketchikan airport to meet the Alaska
Airlines afternoon flight from Seattle.
As passengers began to emerge from the jetway, Ekman
and the Ketchikan officers who were with him watched. Chandler
was one of the first passengers off the flight. He had a single
carry-on bag. When Chandler reached the door of the jetway and
was about to enter the terminal, he looked up and made eye
contact with Ketchikan Police Detective Susan Pickrell, who stood
next to Ekman. None of the officers wore uniforms, but Chandler
had met Pickrell approximately six months before, when he came to
the Ketchikan Police Station to retrieve a lost wallet.
Pickrell noticed that, as soon as Chandler saw her, he
stepped back into the jetway and stopped. As he stood in the
jetway, Chandler glanced back over his shoulder toward the
airplane, as if waiting for someone. Pickrell immediately
recognized Chandler. She was aware that Chandler had previously
been charged with selling cocaine to an undercover police
informant and that he had recently been described by an informant
as one of the three biggest cocaine dealers in Ketchikan. On
this basis, Pickrell pointed Chandler out to Ekman as a known
drug dealer. Ekman and Pickrell focused their attention on
Chandler.
Chandler, meanwhile, had remained in the jetway for
approximately 45 seconds. After several other passengers walked
by, Chandler emerged from the jetway and walked past the
officers. He proceeded at a hurried pace down the stairway to
ground level and out of the terminal building.
Ekman and Pickrell followed Chandler as he walked
toward the exit. When Chandler rounded a corner on the staircase
to the ground floor, Ekman and Pickrell saw him glance up
furtively in their direction. The officers pursued Chandler out
of the building and found him standing on the sidewalk.
Ekman approached Chandler, identified himself, and
displayed his DEA identification. Ekman told Chandler that he
was not under arrest and was free to leave. Ekman then asked to
see Chandler's ticket.
Chandler became visibly nervous and upset. He could
not produce a ticket. Ekman asked for other identification, and
Chandler produced his wallet, from which he removed his driver's
license. At this point, Chandler appeared extremely nervous. He
was sweating profusely and seemed in a daze; he had difficulty
speaking and his hands shook as they held his wallet.
Chandler asked Ekman why he was being stopped. Ekman
explained that he had been watching Chandler's flight for people
carrying drugs. Emphasizing again that Chandler was not under
arrest and was free to leave, Ekman asked him for permission to
inspect his bag. Chandler responded that he wanted to telephone
his attorney. Ekman allowed him to do so. Chandler placed a
call from a nearby pay phone.
While Chandler spoke with his attorney, Pickrell called
the Ketchikan District Attorney's office, explained the
situation, and was advised to seize Chandler's bag. When
Chandler completed his telephone call and returned to Ekman,
Chandler said that he had been advised not to allow the police to
search his bag. Ekman then seized the bag, telling Chandler that
the police would retain it until they could obtain a search
warrant. Chandler was allowed to leave.
The police transported Chandler's bag from the airport
to the police station, where they prepared paperwork to obtain a
search warrant. A short time later, Superior Court Judge Thomas
E. Schulz heard testimony from Ekman and Pickrell, and he issued
a warrant authorizing them to search Chandler's bag. The warrant
was issued slightly more than 90 minutes after the police seized
Chandler's bag.
Returning to the police station, the officers opened
and searched Chandler's bag. Among the bag's contents, they
found an envelope containing approximately five ounces of
cocaine. Chandler was thereafter charged with possessing the
cocaine.
Prior to trial, Chandler moved to suppress the cocaine.
He argued that the warrantless seizure of his bag at the airport
was unlawful because it was not based on probable cause. He
argued further that the subsequently issued search warrant was
also not supported by probable cause. In addition, Chandler
argued that the warrant was based on material misstatements by
detective Pickrell.
Superior Court Judge Thomas E. Jahnke held an
evidentiary hearing on Chandler's suppression motion. Judge
Jahnke concluded that the seizure of Chandler's bag was justified
by exigent circumstances and supported by probable cause. The
judge also found that Ekman and Pickrell's testimony before Judge
Schulz established probable cause for the search warrant.
Although Judge Jahnke found several misstatements in Pickrell's
testimony, he ruled that these misstatements were at most
negligent and did not require suppression.
On appeal, Chandler renews the claims that he raised
below.1 We consider only the lawfulness of the warrantless
seizure of Chandler's bag, since we find that issue dispositive.
The threshold question we must address is whether the
warrantless seizure of Chandler's bag required probable cause.
Chandler characterizes the police conduct as amounting to a full-
scale seizure of his property, which can be justified only upon a
showing of probable cause. See, e.g., United States v. Place,
462 U.S. 696 (1983). The state, on the other hand, maintains
that the seizure can be characterized as the type of brief,
minimally intrusive detention that requires only reasonable
suspicion. See, e.g., Beuter v. State, 796 P.2d 1378, 1383
(Alaska App. 1990).
During the proceedings below, both parties treated the
seizure of Chandler's luggage as if it amounted to a full-scale
seizure requiring probable cause. In finding probable cause to
support the warrantless seizure, Judge Jahnke implicitly
concluded that the seizure was not a limited investigative
detention that could be justified by reasonable suspicion. This
implicit finding is supported by the evidence.
The crucial distinction between a limited investigative
detention and a full-scale seizure is the degree of
intrusiveness. We have recognized that even a very brief
detention of property may amount to a seizure requiring probable
cause when it is particularly intrusive. See Peschel v. State,
770 P.2d 1144, 1147 (Alaska App. 1989). On the other hand,
significantly longer periods may be permissible when detention of
property does not interfere with the owner's actual possession or
when no significant movement of the property occurs. At some
point, however, the length of detention alone may preclude
application of the reasonable suspicion standard. In United
States v. Place, 462 U.S. at 706, the Supreme Court suggested
that a 90-minute period of detention amounted to a seizure
requiring probable cause.
In Chandler's case, the warrantless seizure exceeded
the 90-minute period found impermissible in Place. The state
nevertheless insists that time alone should not be determinative.
Even if the state is correct, however, other factors in this case
militate against the conclusion that the warrantless seizure of
Chandler's bag was the type of limited investigative detention
that can be based on reasonable suspicion.
Chandler's bag was an article of property that he
carried on his person; it was seized directly from Chandler's
possession. The bag was not merely immobilized at the point of
seizure. Rather, it was transported a significant distance from
the airport to the Ketchikan police station. The police
mitigated the intrusiveness of this 90-plus minute detention by
telling Chandler where they were taking his bag, their purpose in
taking it, the approximate length of time that it would be held,
and how Chandler could reclaim it. Although such measures might
make the difference in a borderline case, they do not convert the
kind of seizure that occurred here into a brief, minimally
intrusive detention of property. We conclude that the
warrantless seizure required probable cause.
The state bears the burden of justifying a warrantless
search or seizure; it was incumbent on the state to establish
that probable cause existed when Ekman seized Chandler's bag.
Schikora v. State, 652 P.2d 473, 475-76 (Alaska App. 1982).2
Probable cause exists when "reliable information is set
forth in sufficient detail to warrant a reasonably prudent
[person] in believing that a crime has been or was being
committed." Badoino v. State, 785 P.2d 39, 41 (Alaska App. 1990)
(quoting Harrelson v. State, 516 P.2d 390, 396 (Alaska 1973)).
The existence of probable cause is a mixed question of fact and
law. Absent clear error, we must accept the facts as the trial
court finds them; whether probable cause arises from those facts,
however, is a purely legal issue as to which we make a de novo
determination. LeMense v. State, 754 P.2d 268, 272-73 (Alaska
App. 1988). The existence of probable cause depends on the facts
actually known to the police when the challenged seizure
occurred. In the present case, although Ekman was the officer
who actually seized Chandler's bag, the collective knowledge of
the officers participating in the case may be considered in
determining probable cause.
Judge Jahnke found that probable cause to seize
Chandler's bag arose from the combination of Chandler's
suspicious airport conduct and information concerning his drug-
related activities. We turn first to Chandler's airport conduct.
Chandler's conduct, as described by agent Ekman and
detective Pickrell, was remarkably similar to the conduct
involved in State v. Garcia, 752 P.2d 478, 481 (Alaska App.
1988). Garcia was among the first ten passengers to get off a
flight from Seattle to Anchorage. He had a single carry-on bag.
Garcia looked "intent" and "business-like," and he glanced both
ways as he got off the plane. He proceeded hurriedly to the
baggage area; even though luggage had not yet been unloaded,
Garcia walked through the baggage area, glancing around as he
walked. When contacted, Garcia seemed nervous; although he
displayed a valid driver's license, he was unable to produce a
ticket for his flight.
In Garcia, we upheld the trial court's determination
that these circumstances did not amount to reasonable suspicion
supporting an investigative stop or detention. The circumstances
of Chandler's case are arguably distinguishable from Garcia in
that Chandler appeared to stop immediately upon seeing Susan
Pickrell, whom he might have recognized as a police officer.
Chandler was also arguably more nervous than Garcia. However,
even if these relatively slight differences would support a
finding of reasonable suspicion here, they plainly establish
little more and certainly fall far short of amounting to probable
cause.
We must thus turn to Chandler's past drug-related
activities. At the time of the seizure, Pickrell was apparently
the only person who had information concerning Chandler's
background. We must thus inquire whether Pickrell had received
"reliable information . . . set forth in sufficient detail" to
warrant the conclusion that Chandler was carrying drugs.
Pickrell had a two-fold basis for telling Ekman that
Chandler was a known drug dealer. First, she was aware that
Chandler had previously been charged with selling cocaine to an
undercover police informant in Ketchikan. These charges,
however, involved conduct occurring more than two and one-half
years previously, and they were eventually dismissed. Pickrell
was unfamiliar with the details of the charges.3 This
information could not reasonably be relied on to support probable
cause.
Pickrell's second basis for believing that Chandler was
a "known drug dealer" was her awareness of a statement given to
Ketchikan police by an informant, Joanne Ferguson. Ferguson's
statement to the Ketchikan police occurred on August 25, 1988 --
five weeks before Chandler's arrival at the airport. Ferguson
had a prior record of drug offenses and was on probation. Three
or four days before she gave her statement, she had apparently
been arrested on new charges of possessing cocaine with intent to
distribute. After spending several days in jail, Ferguson agreed
to a police interview in order to explore the possibility of
favorable treatment on her pending charges. Ferguson was aware
that the police could not promise her any deals, but she believed
that the district attorney would probably follow their
recommendations.
In the course of her interview, Ferguson stated that
there were three "big men" separately involved with "mass
quantities of cocaine in Ketchikan." Ferguson identified
Chandler as one of these "big men." When asked how much "mass
quantities" meant, Ferguson responded, "I'd say a pound's the
top." Ferguson said she was sure that none of the three men kept
cocaine in their residences, but she did not know where they did
keep it.
When asked if she had bought cocaine from "these three
people," Ferguson replied that she had. She also indicated that
she had dealt with them "recently," but gave no detail about how
recently, and provided no follow-up as to whether she meant that
she had recently dealt with all three men or just one or two.
Ferguson further indicated that she had had "extensive dealings"
with the three men. Again, however, she did not provide details
or specify whether she meant that she had had extensive dealings
with each of the three men.4
When the police asked Ferguson if she knew that
Chandler had his own airplane, Ferguson said that she did. She
also answered "yes" when asked "does he fly the stuff back and
forth pretty regular . . . ?" According to Ferguson, Chandler
had no "set pattern" for bringing in cocaine: "He changes his
pattern every time. Like last time he flew to Juneau and took
the ferry down." Ferguson did not say when "last time" was or
how she learned this information. She provided no further
detail.
Ferguson indicated that Chandler picked up his cocaine
in Seattle but did not know where. She stated that, in Seattle,
she once met "the guy" who furnished Chandler with cocaine. She
described "the guy" as "real grubby looking," but did not recall
his name. Ferguson did not state how she came to meet this
person or what led her to believe that he was Chandler's source
of cocaine. Ferguson stated that this was her only knowledge of
any "connections" that any of the three "big men" had.
When the police questioned Ferguson about the largest
amount of cocaine she had ever held for Chandler, she replied
that he had once "fronted her" two ounces of cocaine. Based on
Chandler's willingness to front cocaine to her, Ferguson believed
that she was "relatively trusted" by him. However, when asked if
she knew who else Chandler "fronted dope to," Ferguson replied,
"I have no idea, I really don't . . . . [I]n a situation like
this you don't want to get too close."
Apart from saying that Chandler "never uses the same
route twice," Ferguson could not provide information about how
Chandler imported cocaine to Ketchikan. When asked, "Does
Chandler ever bring it back on his plane? Airplane? Alaska
Airlines?" Ferguson answered, "Not that I know of." When asked,
"So how does he bring it back in," she replied, ". . . it might
be on his plane." Ferguson said she had "no idea" where Chandler
would land his plane when he flew to the Seattle area for drugs.
Asked, "And he'll bring back maybe a pound at a crack," Ferguson
answered only "Uh huh."
Ferguson provided no further details as to Chandler's
dealings in her August 25 interview.
In determining the extent to which this information
could contribute to a finding of probable cause, we follow the
two-pronged Aguilar-Spinelli analysis,5 considering first whether
Ferguson's statements could be deemed truthful and, second,
whether they could be deemed reliable -- that is, whether they
were sufficiently detailed or corroborated to permit the
inference that Ferguson spoke from personal knowledge. See State
v. Jones, 706 P.2d 317, 324 (Alaska 1985); Kvasnikoff v. State,
804 P.2d 1302, 1306-07 (Alaska App. 1991).
The state did not provide any evidence below directly
bearing on Ferguson's credibility -- the first prong of the
Aguilar-Spinelli analysis. Judge Jahnke nevertheless found that
Ferguson's admission that she had once been furnished two ounces
of cocaine by Chandler amounted to a statement sufficiently
against Ferguson's penal interest to establish her credibility.
Although this finding seems debatable,6 we may accept it for
purposes of this decision.
The second prong of the Aguilar-Spinelli analysis deals
with reliability, as opposed to credibility, and requires an
inquiry into the basis of Ferguson's knowledge. This requirement
may be met in either of two ways. First, Ferguson's information
could be deemed reliable if it was sufficiently detailed to
support the inference that Ferguson spoke from her own personal
knowledge, and that her information did not reflect mere
speculation or derive from second-hand sources whose credibility
could not be ascertained. Alternatively, the reliability of
Ferguson's information could be established through the
presentation of other evidence corroborating Ferguson's
statements. See Kvasnikoff v. State, 804 P.2d at 1306-08.
Here, Ferguson told the police that she had once been
given two ounces of cocaine by Chandler. This statement
obviously purported to be based on her own personal knowledge.
Accepting Judge Jahnke's conclusion that Ferguson was truthful,
we find that Ferguson's statement set forth credible and reliable
information indicating that Ferguson had received two ounces of
cocaine from Chandler at some prior time.
In sharp contrast to Ferguson's specific assertion that
she had once obtained two ounces of cocaine from Chandler,
however, the balance of Ferguson's information regarding Chandler
was notably generalized, conclusory, and lacking in detail. None
of the information Ferguson gave concerning the frequency of
Chandler's dealings in cocaine or his transportation of the drugs
from Seattle to Ketchikan was sufficiently detailed or specific
to establish that it was based on Ferguson's own observations, as
opposed to what she may have heard from others or surmised on her
own. Furthermore, from the record it appears that detective
Pickrell was aware of no evidence corroborating Ferguson's claim
that Chandler was involved in the importation of cocaine to
Ketchikan.
Notably, Judge Jahnke's findings on the issue of
probable cause did not address the reliability prong of the
Aguilar-Spinelli doctrine. Judge Jahnke did give detailed
consideration to the issue of Ferguson's "reliability" in his
findings. However, a review of the court's findings indicates
that, under this rubric, Judge Jahnke actually dealt only with
the issue of Ferguson's truthfulness and veracity. At no point
did the judge attempt to determine whether Ferguson's allegations
linking Chandler to the importation of cocaine to Ketchikan were
based on first-hand knowledge.
Reviewing the record in its entirety, we have found no
contextual detail or corroborating information sufficient to
support a reasonable belief that Ferguson spoke from her own
personal knowledge in accusing Chandler of regularly importing
cocaine. Ferguson's police interview could reasonably have been
relied on to establish that Chandler had given Ferguson two
ounces of cocaine at some unspecified time in the past; perhaps
also that Ferguson may have received lesser amounts at other
unspecified times. This information, however, had little bearing
on Ferguson's generalized assertion that Chandler regularly
imported cocaine, and it also fell far short of amounting to
probable cause to believe that Chandler would be in possession of
cocaine when he arrived at the Ketchikan airport five weeks after
Ferguson's interview.
Chandler's suspicious behavior at the airport, when
combined with his dismissed 1986 charges and information
concerning his delivery of cocaine to Ferguson, certainly
amounted to a reasonable suspicion warranting an investigative
stop of Chandler and a limited investigative detention of his
property. However, the totality of the information available to
the officers when they seized Chandler's bag did not approach the
level of certainty necessary to establish probable cause.
Because the search warrant that led to the discovery of cocaine
was the fruit of the unlawful seizure of Chandler's bag, we
conclude that the superior court erred in denying Chandler's
motion to suppress.
The conviction is REVERSED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. Chandler also challenges Judge Jahnke's refusal to
order disclosure of the full text of a statement made to the
police by informant Joanne Ferguson. Given our disposition in
this case, we need not address this issue.
2. As part of its duty of justifying the warrantless
seizure, the state also bore the burden of proving an exception
to the warrant requirement. If probable cause existed, however,
immediate warrantless seizure of Chandler's bag would plainly
have been justified by exigent circumstances. See, e.g., Ingram
v. State, 703 P.2d 415, 422 (Alaska App. 1985). The only
disputed issue here is whether probable cause for the seizure
existed.
3. In its brief, the state attempts to make much of the
fact that Chandler was formally charged by a grand jury
indictment in 1986. The state argues that, despite the eventual
dismissal of the charges, the fact that a grand jury found the
evidence sufficiently compelling to warrant indictment supports
the conclusion that Chandler actually engaged in the alleged 1986
drug transactions. The state also points out that, although
Chandler's charges were dismissed because they involved
transactions that were not electronically recorded, numerous
other cases in which the same informant engaged in recorded
transactions with other defendants resulted in convictions. The
state thus maintains that there is no basis for concluding that
the undercover police informant was inherently unreliable.
The state's argument is largely irrelevant to the issue
of probable cause for the warrantless seizure -- an issue that
depends on what Pickrell knew at the time Ekman seized Chandler's
bag. We have found nothing in the record to establish that
Pickrell was actually aware that Chandler had been formally
indicted by the grand jury. Nor does the record contain any
evidence indicating that Pickrell was aware of any specific facts
allowing her to give credence to the previously dismissed
charges. Appearing before Judge Schulz at the search warrant
hearing, Pickrell did provide specific dates and a certain amount
of detail concerning Chandler's 1986 charges. As the state
acknowledges, however, Pickrell's testimony was based on her post-
seizure review of Chandler's file. At the evidentiary hearing on
Chandler's motion to suppress, Pickrell testified that she did
not participate in the 1986 undercover investigation and that she
first learned of Chandler's charges only after the fact --
sometime in 1987. Pickrell disclaimed any knowledge of the
specifics of the case, saying that she knew little other than the
fact that Chandler had been charged and that the charges were
later dismissed.
4. In this regard, however, Ferguson did indicate that she
had known the other two men for the past ten years but had not
known Chandler for as long a period.
5. See Spinelli v. United States, 393 U.S. 410 (1969);
Aguilar v. Texas, 378 U.S. 108 (1964).
6. Compare Shakespeare v. State, ____ P.2d ____, Op. No.
1208 at 6-13 (Alaska App., March 6, 1992) with State v. Bianchi,
761 P.2d 127, 131 (Alaska App. 1988).
