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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.
