NOTICE: This opinion is subject to formal
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOLEEN R. RYNEARSON, )
) Court of Appeals No. A-6108
Appellant, ) Trial Court No. 3AN-92-5215 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1561 - December 19, 1997]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Karen L. Hunt, Judge.
Appearances: G. Blair McCune, Assistant Public
Defender, and Barbara K. Brink, Public Defender, Anchorage, for
Appellant. William H. Hawley, Assistant Attorney General, Office
of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, Mannheimer, Judge,
and Rabinowitz, Senior Supreme Court Justice.
MANNHEIMER, Judge.
Joleen R. Rynearson pleaded no contest to two counts of
fourth-degree misconduct involving a controlled substance
(possession of Valium and Darvon), AS 11.71.040(a)(3)(B). When
Rynearson entered her pleas, she reserved the right to challenge the
legality of the police seizure of her bags (which led to the search
in which the police found the drugs). See Cooksey v. State, 524
P.2d 1251, 1255-57 (Alaska 1974).
In our previous decision in this case, we held that the
seizure of Rynearson's bags exceeded the bounds of temporary
investigative detention, and that therefore the seizure was
justified only if the officers had probable cause to believe that
Rynearson's bags contained illicit drugs. Rynearson v. State,
Memorandum Opinion No. 3068 (Alaska App., January 11, 1995), at 8-9.
Because the superior court had not addressed the question of whether
there was probable cause for the seizure of the bags, we remanded
Rynearson's case to the superior court for further findings on this
issue. Id.
On remand, the superior court found that the police did
have probable cause to seize Rynearson's bags, based on a tip they
had received from an anonymous informant. The question now on
appeal is whether the superior court's ruling is correct. We agree
that the police had probable cause to seize Rynearson's bags, and
we therefore affirm her convictions.
The State Troopers contacted Rynearson at the Anchorage
International Airport based on information they had received from
an anonymous informant. [Fn. 1] According to this informant,
Rynearson would be arriving in Anchorage around midnight on an
Alaska Airlines flight from Mexico. The informant supplied the
flight number. The informant also provided a physical description
of Rynearson and of her luggage. Finally, the informant told the
authorities that Rynearson would be carrying drugs specifically,
Valium, Quaaludes, and morphine and that Rynearson would be
carrying these drugs on her person, in her luggage, and concealed
in plastic toys.
The troopers followed up on this tip by contacting Alaska
Airlines. Airline officials confirmed that a person named Joleen
Rynearson would be arriving in Anchorage around midnight on an
Alaska Airlines flight from San Francisco, and that this flight had
originated in Puerto Vallarta, Mexico. When Rynearson got off the
plane, the troopers saw that both she and her carry-on bags matched
the informant's description. When Rynearson retrieved her checked
luggage, the troopers saw that those bags also matched the
informant's description. When the troopers approached Rynearson and
questioned her, Rynearson confirmed that she had just arrived from
Mexico, and she admitted that she was in possession of prescription
Valium.
To decide whether this information constituted probable
cause to seize Rynearson's luggage, we apply the test crafted in
Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723
(1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584,
21 L.Ed.2d 637 (1969). See State v. Jones, 706 P.2d 317, 324-25
(Alaska 1985) (holding that, under Alaska law, the Aguilar-Spinelli
test continues to govern the evaluation of hearsay information
offered to support a search or seizure). The Aguilar-Spinelli test
requires the State to prove two things: first, that the hearsay
informant obtained the information in a reliable way; second, that
the hearsay informant is trustworthy. Schmid v. State, 615 P.2d
565, 574-75 (Alaska 1980).
The assessment of probable cause presents a mixed question
of fact and law. With regard to the facts, we must accept the facts
found by the trial court unless those findings are shown to be
clearly erroneous. However, once the facts are determined, the
question of whether those facts constitute probable cause is a
question of law which a reviewing court determines independently.
LeMense v. State, 754 P.2d 268, 272-73 (Alaska App. 1988).
In the present case, the informant did not explain how she
obtained her information regarding Rynearson. In fact, the troopers
specifically asked the informant how she had obtained her
information, and the informant refused to say. However, under
Spinelli, the detail of a hearsay tip can support the inference that
the information was obtained first-hand:
In the absence of a statement detailing the
manner in which the information was gathered, it is especially
important that the tip describe the accused's criminal activity in
sufficient detail that the magistrate may know that he is relying
on something more substantial than a casual rumor circulating in the
underworld or an accusation based merely on an individual's general
reputation.
Schmid, 615 P.2d at 574 (quoting Spinelli, 393 U.S. at 416, 89 S.Ct.
at 589, 21 L.Ed.2d at 644).
For example, in Draper v. United States, 358 U.S. 307,
309; 79 S.Ct. 329, 331; 3 L.Ed.2d 327, 329-330 (1959), the informant
described the defendant and his clothing, described the defendant's
gait, stated that the defendant would be carrying a zippered bag,
and predicted that the defendant would arrive at the Denver railroad
station on either of two dates. The Supreme Court held that this
amount of detail established the inference that the informant was
speaking from personal knowledge rather than reporting a rumor or
making an accusation based merely on Draper's general reputation.
Similarly, we find that the anonymous tip in Rynearson's
case was sufficiently detailed to support the inference that the
informant was speaking from personal knowledge. The anonymous
informant accurately described Rynearson and her luggage, knew that
Rynearson was returning to Alaska from Mexico, and predicted that
Rynearson would arrive in Anchorage around midnight on a specific
day and on a specific Alaska Airlines flight. This amount of detail
matches the amount that was declared adequate in Draper and Schmid.
The remaining question is whether the State proved that
the anonymous informant was a trustworthy person. There are
basically three ways in which an informant can be shown to be
trustworthy: by evidence that the same informant has proved
reliable in the past, by evidence that independently corroborates
the informant's present tip, or by evidence that the informant is
among the class of people presumptively deemed credible, such as the
"citizen informants" recognized in Erickson v. State, 507 P.2d 508,
517-18 (Alaska 1973). See Carter v. State, 910 P.2d 619, 623
(Alaska App. 1996).
In Rynearson's case, the superior court concluded that the
anonymous informant was a "citizen informant". From the informant's
desire to remain anonymous, the court inferred that the informant
had not been motivated by hope of official concession or reward.
This was a reasonable inference. However, as we recently explained
in Lloyd v. State, 914 P.2d 1282 (Alaska App. 1996), an informant's
anonymity does not, by itself, qualify the informant as a "citizen
informant" for Aguilar-Spinelli purposes.
Lloyd involved a search warrant application that was
based, in substantial part, on information given by a caller to a
Crime Stoppers hot line. The State argued that the caller could be
deemed a "citizen informant". In support of its argument, the State
cited two prior decisions in which this court extended a presumption
of credibility to anonymous informants. See Effenbeck v. State, 700
P.2d 811 (Alaska App. 1985), and Beuter v. State, 796 P.2d 1378
(Alaska App. 1990). We explained, however, that the State had read
too much into Effenbeck and Beuter:
[N]either Effenbeck nor Beuter stand for the
proposition that ... informants of unknown or undetermined status
can automatically gain citizen informant status by [anonymously]
calling a Crime Stoppers number; to adopt such a rule would simply
encourage police to channel calls from their regular informants
through a Crime Stoppers line. To the extent that [they] are
relevant[, Effenbeck and Beuter] support the conclusion ... that
[an] informant['s] status must be determined by a realistic, case-
by-case assessment of the informant's probable motives, as they
appear from the information properly before the court.
Lloyd, 914 P.2d at 1287. We also emphasized that it is the
government's burden to demonstrate the informant's status as a
citizen informant:
[A] finding of citizen informant status
requires at least some circumstantial showing of intrinsically
trustworthy motivation. Credibility is not presumed by default:
when the information available ... does not actually identify the
informant as an apparently well-meaning citizen, and when it
otherwise sheds insufficient light on [the informant's] identity and
motive to dispel the underlying concerns of Aguilar-Spinelli, the
informant's status as a citizen informant cannot simply be assumed.
Id. at 1287.
In Rynearson's case, although the troopers did not
affirmatively state whether the informant sought or received a
reward for her information, the superior court could justifiably
conclude that the anonymous informant was unlikely to be motivated
by prospects of official concessions or monetary gain. However,
little else was known (or, at least, little else was presented)
concerning the informant. The troopers testified that the informant
(a) was female, (b) wished to remain anonymous, and (c) refused to
reveal how she had obtained the information about Rynearson. As in
Lloyd, the State did not explain "the nature or circumstances of the
call", did not tell the superior court "[whether] the call was
recorded", and did not provide the court with "any assurance that
the report could not have been fabricated." Lloyd, 914 P.2d at
1288.
These factors lead us to conclude that the informant in
Rynearson's case should not be deemed a citizen informant. Even
though an anonymous informant will generally not expect reward or
favorable treatment from the authorities, we reiterate what we said
in Lloyd: an informant's anonymity does not, standing alone,
qualify the informant as a citizen informant. [Fn. 2] In
Rynearson's case, the State presented essentially nothing, other
than the informant's desire to remain anonymous, to "identify the
informant as an apparently well-meaning citizen" or to otherwise
"dispel the underlying concerns of Aguilar-Spinelli". Lloyd, 914
P.2d at 1287. Thus, to justify the seizure of Rynearson's luggage,
the record must demonstrate sufficient corroboration of the
informant's tip to satisfy the second prong of the Aguilar-Spinelli
test for a police informant.
In Rynearson's case, the police had no evidence that the
anonymous informant had proved reliable in the past (or even had
contacted them in the past). However, the second prong of the
Aguilar-Spinelli test can be satisfied by independent corroboration
of an otherwise untested informant's tip. State v. Jones, 706 P.2d
at 325; Atkinson v. State, 869 P.2d 486, 490 (Alaska App. 1994).
In the present case, police investigation independently confirmed
certain aspects of the informant's tip. Rynearson arrived as
predicted on the specified Alaska Airlines flight, and her journey
began in Mexico, as the informant had said. The informant
accurately described Rynearson's person as well as Rynearson's
luggage. Finally, Rynearson told the troopers that she was carrying
Valium, one of the three drugs mentioned by the informant although
Rynearson explained that she had obtained the Valium under
prescription.
Rynearson discounts this independent corroboration of the
informant's tip; she argues that this corroboration consists only
of "public facts [and] wholly innocuous details", insufficient to
meet the Aguilar-Spinelli requirement. Lloyd, 914 P.2d at 1288
(quoting Carter v. State, 910 P.2d 619, 624 (Alaska App. 1996)).
We do not agree. The corroborated details included matters that
typically would not be known to the general public Rynearson's
flight number, arrival time, and point of origin, as well as the
description of her luggage and the assertion that she was carrying
Valium. Moreover, in the context of the informant's tip,
Rynearson's admission that she was carrying Valium was not a "wholly
innocuous" detail; instead, this information was partial
corroboration of the informant's primary incriminating assertion
that Rynearson was bringing Valium, Quaaludes, and morphine to
Alaska.
The police need not obtain independent corroboration of
the incriminatory details of the informant's tip; such a rule was
specifically rejected in Schmid, 615 P.2d at 577. What the law
requires is independent corroboration that "relate[s] to the tip in
a way that lends substantial credibility to the report of
illegality". Lloyd, 914 P.2d at 1286. The police corroboration of
the informant's tip in Rynearson's case meets this test.
Based on the foregoing, we conclude that both prongs of
the Aguilar-Spinelli test were satisfied in this case, and the
police therefore had probable cause to seize Rynearson's luggage.
Accordingly, the judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
The troopers received two tips concerning Rynearson.
One tip was received in a telephone call from a woman who refused
to identify herself. A second tip was received from a federal agent
working for the Drug Enforcement Agency. However, the federal agent
was simply passing on information that he had received from an
anonymous female caller. Thus, all of the troopers' information
regarding Rynearson was ultimately based on these two anonymous
tips.
The record does not reveal whether the same woman
contacted both the troopers and the DEA, or whether a different
informant contacted each agency. The superior court made no finding
on this issue. However, because the presence of two cross-
corroborating informants would bolster the State's case, see Stam
v. State, 925 P.2d 668, 671-72 (Alaska App. 1996), and because it
was the State's burden to establish probable cause, we will assume
that there was only one informant.
Footnote 2:
Conversely, Lloyd, Effenbeck, and Beuter together stand
for the proposition that anonymity does not necessarily defeat
citizen informant status. As demonstrated by the decisions in
Effenbeck and Beuter, if the government has instituted a program
that encourages citizens to come forward with information
anonymously, and if that program is set up in a manner that
"dispel[s] the underlying concerns of Aguilar-Spinelli", then the
fact that a person has volunteered information anonymously will not
prevent the court from concluding that this person is a citizen
informant.
