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McGee v. State (5/24/2002) ap-1804
McGee v. State (5/24/2002) ap-1804
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
SAM W. McGEE, )
) Court of Appeals No. A-
7697
Appellant, ) Trial Court No.
4FA-S99-132 CR
)
v. ) O P I N I O
N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1804 May
24, 2002]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Charles R.
Pengilly, Judge.
Appearances: James M. Hackett, Law Office of
James M. Hackett, Inc., Fairbanks, for
Appellant. John A. Scukanec, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
Sam W. McGee entered a no contest plea to various
counts of controlled substance misconduct preserving his right to
appeal the superior court's denial of his motion to suppress
evidence.1
The police discovered the evidence against McGee after
the police intercepted a Federal Express package addressed to
McGee and tested it with an Ion Track Instruments "Itemiser" an
ion mobility spectrometer. The Itemiser test revealed traces of
a controlled substance; based on this test result, the police
obtained a search warrant to open the package. When the police
opened the package, they found about 7 ounces (200 grams) of
cocaine. This discovery prompted further investigation and
ultimately led to the charges against McGee.
McGee raises several claims on appeal, but we need
address only one of them: whether the police must have reasonable
suspicion to temporarily remove McGee's package from the normal
flow of commerce and test it with the Itemiser. The State
concedes that, until the police tested McGee's package with the
Itemiser, the police did not have reasonable suspicion that
McGee's package contained or constituted evidence of criminal
activity.
In Gibson v. State,2 this court ruled that the police
need reasonable suspicion of criminal activity before they can
temporarily detain a package and subject it to sniffing by a drug
detection dog.3 We conclude this same rule applies to temporary
detention of a package for the purpose of subjecting it to ion
mobile spectrometry.
Thus, the police violated McGee's rights when they
tested the package, and the superior court should have granted
McGee's suppression motion.
The judgment of the superior court is REVERSED.
_______________________________
1 See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska
1974).
2 708 P.2d 708 (Alaska App. 1985).
3 See id. at 709-10.
