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McGee v. State (7/26/2002) ap-1814
McGee v. State (7/26/2002) ap-1814
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, ) ON REHEARING
)
Appellee. ) [No. 1814 July
26, 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 misconduct1 preserving his right
to appeal the superior court's denial of his motion to suppress
evidence.
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 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.
When McGee raised this issue in the superior court, the
State responded that the Itemiser examination "cannot be said to
be so intrusive as to trigger 4th Amendment protection." The
State argued that the Itemiser was nothing more than an
electronic "dog-sniff" and relied on a statement from United
States v. Place2 that a dog sniff "did not constitute a 'search'
within the meaning of the Fourth Amendment."3
But in Gibson v. State,4 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.5 We conclude this same rule applies to
temporary detention of a package for the purpose of subjecting it
to ion mobile spectrometry.
At the hearing on McGee's motion to suppress, the State
understood the superior court's analysis of the issue to be "that
if in fact this Itemiser is the functional equivalent of a dog
sniff, then the search is bad and we would have suppression."
The court confirmed the State's understanding and also observed
that "from the record, I don't see anything that would justify
even a reasonable suspicion until such time as [the package] is
exposed to the Itemiser." The State did not ask to present any
additional evidence at the hearing on the issue of reasonable
suspicion. The court then ordered supplemental briefing on the
issue of whether the use of the Itemiser was a search.
In its supplemental brief to the trial court, the State
argued that "[t]he package was detained and the Itemiser used
based on nationally developed criteria that establish reasonable
suspicion." The State claimed that in the totality of the
circumstances, reasonable suspicion was established in light of
what the police knew but did not cite any specific facts from
McGee's case that established reasonable suspicion. The superior
court ruled that the use of the Itemiser did not implicate the
Fourth Amendment and denied McGee's motion.
The State argues that we should remand the case so the
superior court can squarely address the question whether there
was reasonable suspicion to subject the package to the Itemiser.
Because the court resolved McGee's motion on a ground independent
of that question, we will remand the case to the superior court
to address the following question: Was there reasonable
suspicion when McGee's package was tested with the Itemiser?
The superior court shall transmit its findings on this
question to this court within ninety days. Each party shall have
thirty days from this court's receipt of those findings to submit
supplemental memoranda addressing those findings. At that time,
we will resume consideration of McGee's case.
The case is REMANDED to the superior court. We retain
jurisdiction.
_______________________________
1 See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska
1974).
2 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983).
3 Id., 462 U.S. at 707, 103 S.Ct. at 2645.
4 708 P.2d 708 (Alaska App. 1985).
5 See id. at 709-10.
