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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.