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McGee v. State (5/9/2003) ap-1874

McGee v. State (5/9/2003) ap-1874

                             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 1874  May 9,
2003]
                              )



          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.
          MANNHEIMER, Judge, concurring.

          We  remanded  this  case  to  the  superior  court  for

additional   findings  on  whether  the  police  had   reasonable

suspicion  to  test  a  package with  ion  mobile  spectrometry.1

Superior  Court Judge Charles R. Pengilly found that  the  police

did  not  have reasonable suspicion that McGees package contained

          contraband when they removed it from the normal flow of commerce

and  tested  it.   The State does not challenge  Judge  Pengillys

factual  findings but argues that his legal analysis was  flawed.

However, we agree with Judge Pengilly that under his findings the

police  did  not have reasonable suspicion to remove the  package

from  the  normal  flow of commerce to test it.  Accordingly,  we

affirm  Judge  Pengillys findings on remand  and  reverse  McGees

convictions.

          Background facts and proceedings

          The  police discovered the evidence against McGee after

they 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 seven ounces (200 grams)  of  cocaine.

This discovery prompted further investigation and ultimately  led

to several charges against McGee.

          McGee moved to suppress the evidence on several grounds

but  the  superior court denied his motion.  McGee entered  a  no

contest plea to various counts of controlled substance misconduct

while  preserving his right to appeal the superior courts  denial

of his motion to suppress evidence.2

          When the case was first before us, McGee raised several

claims  on appeal, but we addressed only one:  We ruled that  the

police  must  have reasonable suspicion to temporarily  remove  a

package  from the normal flow of commerce and test  it  with  the

Itemiser.  Because the superior court did not address whether the

police  had  reasonable  suspicion,  we  remanded  the  case  for

additional  findings.   On remand, the  superior  court  held  an

evidentiary  hearing;  the  only witness  was  Anchorage  Airport

Police Officer Larry Tower who was assigned to the Statewide Drug

Enforcement Unit.

          On January 11, 1999, Officer Tower was at the Fairbanks

Federal Express facility looking for packages containing drugs or

          contraband.  Officer Tower removed McGees package from the

companys sorting process because he noticed that the airbill  was

addressed  by  hand.  Tower looked closer at  the  package  after

removing  it  from the sorting area and noticed that the  package

was  addressed to Sam McGee.  Tower concluded that the  addressee

was  fictitious  because he recalled a legend  of  Sam  McGee  or

something3  and the name struck him as comical.   Tower  did  not

check  to  see if the name was fictitious.  He also  thought  the

package  was  suspicious because it was sent overnight  delivery,

the  airbill  did not include a phone number or a description  of

the  contents, and the airbill had an indication that the  $21.50

shipping charge was paid with cash.  Tower testified that he felt

a  container  inside the shipping envelope.   He  testified  that

Tacoma, Washington, the city where the package originated, is one

of  the  source cities ... that Alaska receives a  lot  of  drugs

from[.]  Tower then had the package tested with the Itemiser.

          Judge  Pengilly reviewed the testimony by  the  officer

and  made  the following findings:  he thought the package  might

have  been  double  packaged as Tower  testified;  he  found  the

package  was shipped from Tacoma, but he rejected the  contention

that  Tacoma  was  suspicious as a city where most  shipments  of

drugs  to  Alaska  originate;   he found  that  the  airbill  was

addressed  by hand; he found the shipping charge of about  twenty

dollars was paid in cash; and he found the officer thought McGees

name  was  fictitious,  but did nothing to check  his  suspicion.

Evaluating all these factors, Judge Pengilly concluded that Tower

did not have reasonable suspicion to test the package.

          Did  the  police  have reasonable suspicion  to  remove

          McGees  package from the normal stream of commerce  and

          test it for controlled substances?

          In  Gibson  v.  State,4 we 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  In our earlier decision in McGees case, we  held

this  same  rule  applies when the police  temporarily  detain  a

          package to test for controlled substances with the Itemiser.6

          Whether   the   circumstances  of  a   case   establish

reasonable  suspicion is a mixed question of fact and  law.7   As

the Alaska Supreme Court announced when discussing the reasonable

suspicion standard:

               [T]he  police officer must  be  able  to

          point   to  specific  and  articulable  facts

          which,    taken   together   with    rational

          inferences   from  those  facts,   reasonably

          warrant the intrusion. ... And in making that

          assessment it is imperative that the facts be

          judged  against an objective standard:  would

          the  facts  available to the officer  at  the

          moment of the seizure or the search warrant a

          man  of reasonable caution in the belief that

          the action taken was appropriate?[8]

          Judge  Pengillys  factual  findings  are  unchallenged.

Judge  Pengilly found that McGees package might have been  double

packaged.  He found that the package was shipped from Tacoma  but

did  not  find that Tacoma was an important source city for  drug

shipments.  He found the shipping charge of about twenty  dollars

was paid in cash and the airbill was hand written.  He also found

that  the  officer thought that McGees name was fictitious.   The

question  then  is  whether these facts would lead  a  person  of

reasonable  caution  to  believe that McGees  package  should  be

tested for controlled substances.

          The  fact  that  a  FedEx overnight  priority  delivery

package  is double packaged means little because Federal  Express

requires  that shippers use FedEx containers for their  items  or

have the contents of their package cushioned on all sides with  a

minimum of two inches of protection.9  A shipping charge of about

twenty  dollars  for priority delivery from Tacoma  to  Fairbanks

reflects the carriers normal price range for priority delivery.10

The  State  did not present evidence at the hearing before  Judge

Pengilly  that  these facts, in conjunction  with  the  remaining

          facts about the package  the hand-addressed airbill, the cash

payment  for  shipping from Tacoma, and the  officers  subjective

thought  that  McGees  name was comical and therefore  fictitious

distinguished McGees package from any small express package  sent

from   one  individual  to  another.   The  record  provides   no

information  to  support a rational inference  that  the  package

contained  contraband.  Therefore, we agree with  Judge  Pengilly

that  the police did not have reasonable suspicion to test McGees

package with the Itemiser.

          Conclusion

          We  uphold  Judge Pengillys ruling that the police  did

not   have   reasonable   suspicion  to  test   McGees   package.

Accordingly, we REVERSE McGees convictions.

MANNHEIMER, Judge, concurring.


          I am writing separately to highlight what I perceive to

be the rationale of our decision.

          The  question  presented  is  whether  the  police  had

reasonable suspicion to believe that the Federal Express  package

contained  contraband  when they removed  the  package  from  the

normal stream of commerce and subjected it to an ion scanner.  As

we  noted in State v. Moran, 667 P.2d 734 (Alaska App. 1983), the

concept  of  reasonable suspicion is [n]ecessarily  ...  somewhat

vague.1   Nevertheless, in Moran we approved Professor  Wayne  R.

LaFaves  suggestion that reasonable suspicion means a substantial

possibility that criminal conduct has occurred, is occurring,  or

is  about to occur.2  We also quoted the formulation employed  by

the United States Supreme Court in United States v. Cortez:

          
               Terms   like  articulable  reasons   and
          founded suspicion are not self-defining; they
          fall  short of providing clear guidance  [for
          resolving] the myriad factual situations that
          arise.  But the essence of all that has  been
          written [about reasonable suspicion] is  that
          the  totality of the circumstances  the whole
          picture   must be taken into account.   Based
          upon  that  whole  picture[,]  the  detaining
          officers  must  have  a  particularized   and
          objective basis for suspecting the particular
          person stopped of criminal activity.
          
          Id.  (citing 449 U.S. 411, 417-18; 101  S.Ct.

          690, 695; 66 L.Ed.2d 621, 628-29 (1981)).

          The   essential  dispute   in   the

present    case    involves    the     proper

interpretation  of this last-quoted  sentence

from  Cortez:  specifically, the  meaning  of

the phrase particularized and objective basis

for suspecting ... criminal activity.

          The State argues that the testimony

presented  to the superior court  established

particularized  and  objective  reasons   for

          suspecting that the package contained

contraband:   the  person  who  shipped   the

package  paid  extra for overnight  delivery;

the  shipping  fee was paid in  cash  (rather

than  by  check or credit card); the shipping

envelope  appeared to hold another  container

inside it; the shipping label was written  by

hand;  and the shipment originated in a  city

from  which  many shipments of illicit  drugs

are  sent to Alaska.  According to the State,

all  of  these articulated factors show  that

the  police did not randomly pull the package

out  of  the  stream of commerce, but  rather

they  acted  on identifiable indicators  that

the package contained contraband.

          But as Judge Pengilly suggested  in

his  written  decision, and as Judge  Stewart

suggests  in  this Courts lead  opinion,  the

problem  with the States articulable  factors

is  that  they  describe  too  many  innocent

shipments.   As  the  United  States  Supreme

Court  stated  in  Delaware  v.  Prouse,  the

circumstances   offered   to   validate    an

investigative    stop    must    serve     to

differentiate  the person  stopped  from  the

general public.3  Likewise, the circumstances

offered to justify the temporary detention of

mail  or  mail-like articles shipped  through

commercial carriers like Federal Express  and

United   Parcel   Service   must   serve   to

distinguish  the  detained package  from  the

general body of shipments.

          I assume, for purposes of argument,

that  there  is some reason to  believe  that

packages shipped overnight are more likely to

          contain contraband than packages shipped on a

slower delivery schedule.  Likewise, I assume

that  there is some reason to believe that  a

package  is more likely to contain contraband

if  the  shipper  pays the fee  in  cash,  or

addresses  the  package  with  a  handwritten

label.   Finally,  I assume  that  there  are

identifiable cities which are the origination

points  for a large number of drug  shipments

to  Alaska.   But if the Fourth Amendment  to

the United States Constitution and the search

and seizure provision of Alaskas Constitution

(Article  I, Section 14) are to act as  curbs

to government intrusion, it is not enough for

the State to point to identifiable reasons to

suspect  that a package contains  contraband.

The   States  reasons  must  also  serve   to

differentiate the suspected package from  the

body of innocent packages.

          Doubtless,  some ascertainable  and

predictable  percentage of all  mailings  and

commercial shipments contain drugs  or  other

contraband.   Thus, the State could  properly

assert  that  there is an identifiable,  non-

negligible  possibility  that  any   package,

selected at random, will contain drugs.   But

if  people  are  to have any privacy  in  the

letters and packages they send, this fact can

not  serve  as a justification for subjecting

all mailings to government scrutiny.

          In  the  present case, the  factors

that  the  State  relies on  to  justify  its

seizure  and  search of the package  describe

too many innocent mailings.  As Judge Stewart

points  out  in his opinion, Federal  Express

normally  requires  all persons  to  use  the

companys  shipping envelopes (even  when  the

item  being shipped is already enclosed in  a

container).   Thus,  the  fact  that   McGees

package  may  have been double packaged  does

not  differentiate it from a great number  of

other Federal Express shipments.  The same is

true  regarding  the fact that  the  shipping

label was handwritten and the fee was paid in

cash.   One could reasonably expect  to  find

handwritten  labels affixed to  most  of  the

packages    shipped   by   individuals    and

businesses  who do not routinely  ship  items

through    express    commercial    carriers.

Moreover, since the standard fee for  express

delivery  is  slightly over  $20,  one  could

expect that many of these people would pay in

cash.   Finally,  as Judge  Pengilly  pointed

out,  the  fact that a large number  of  drug

shipments   come  to  Alaska   from   Tacoma,

Washington  is  unremarkable if,  overall,  a

similarly  large percentage of all  shipments

to Alaska come from Tacoma.

          In  other words, if we allowed  the

State  to  temporarily  seize  packages   and

subject  them  to ion scanning based  on  the

factors offered in the present case, we would

potentially    be    authorizing    wholesale

government  seizure  and  inspection  of  the

majority of envelopes and packages shipped by

individuals  and  small businesses.   Such  a

result   would   be   at   odds   with    the

constitutional guarantees of privacy embodied

in  the  search  and seizure clauses  of  our

federal and state constitutions.

          One  might argue that there  is  no

need  for alarm, since the physical intrusion

is   minimal  (no  physical  opening  of  the

package,  and  only  a slight  delay  in  its

shipment), and since the ion scanning  device

is   designed  to  detect  only   drugs   and

explosives.   But  we live  in  an  age  when

someone  who  wishes to know another  persons

words  and  activities  need  not  engage  in

physical   intrusion   to   discover    them.

Technological advances have given us  devices

that   see  through  opaque  containers   and

through the walls of residences, devices that

can  pick  up  and  record  conversations  in

another  building, devices that can scan  the

contents  of e-mails as they move across  the

Internet   even devices that can  detect  and

record  each  of my keystrokes as  I  compose

this concurring opinion.

          If  the government were free to use

such  devices  to  investigate  its  citizens

based  on  the sorts of factors presented  in

this  case, the result would be a significant

chilling of personal and political discourse.

As our supreme court noted in State v. Glass,


In a pluralistic society dedicated to liberal
democratic      traditions,      confidential
communication serves as a lubricant  for  the
smooth  functioning of social  and  political
institutions.   Without uninhibited,  robust,
and  wide-open public and private  expression
on  the  great issues of our day, as well  as
private  discussion about  the  mundane,  the
trivial,  and the banal, a once free  society
will  soon  become a nation of hagridden  and
furtive people.

583 P.2d 872, 877 (Alaska 1978).4

          In   Glass,   our   supreme   court

perceived  and took action to protect  Alaska

society  against  [t]he corrosive  impact  of

warrantless  participant  monitoring  on  our

sense of security and freedom of expression.5

The  present case does not involve electronic

monitoring  of speech, but rather  electronic

scanning  of the contents of the letters  and

packages we mail to each other.  And yet  the

adverse    consequences    of    unrestrained

government  intrusion would be similar.   For

these   reasons,  I  join  in   this   Courts

decision.



_______________________________
     1 See McGee v. State, 51 P.3d 970, 971 (Alaska App. 2002).

      2  See  Cooksey  v. State, 524 P.2d 1251,  1255-57  (Alaska
1974).

      3  See The Cremation of Sam McGee, a poem by Robert Service
originally published in 1916.

     4 708 P.2d 708 (Alaska App. 1985).

     5 Id. at 709-11.

     6 McGee, 51 P.3d at 971.

     7 Hayes v. State, 785 P.2d 33, 36 (Alaska App. 1990).

      8  Coleman v. State, 553 P.2d 40, 45 (Alaska 1976) (quoting
Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d
889, 906 (1968)).

      9  See  Terms and Conditions for Shipping within the United
States                                                         at
www.fedex.com/us/services/pdf/SG_Vol3_TermsCond.pdf?link=4  (last
visited April 4, 2003).

     10 See www.fedex.com/ratefinder/shipInfo (last visited April
4, 2003).

     1 667 P.2d at 735.

     2 Id.

     3440 U.S. 648, 661; 99 S.Ct. 1391, 1400; 59 L.Ed.2d 660,
672 (1979).

     4Quoting Judge Hufstedlers dissent in Holmes v. Burr, 486
F.2d 55, 65-66 (9th Cir. 1973).

     5Glass, 583 P.2d at 877.