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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
LEON D. RUARO, )
) Court of Appeals No. A-10878
Appellant, ) Trial Court No. 1KE-06-467 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) No. 2364 - July 27, 2012
)
Appeal from the Superior Court, First Judicial District,
Ketchikan, William B. Carey, Judge.
Appearances: Rex Lamont Butler, Rex Lamont Butler &
Associates, Anchorage, for the Appellant. Kenneth M.
Rosenstein, Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and John J. Burns,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
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Leon D. Ruaro appeals his conviction for misconduct involving a controlled
substance in the third degree for possessing cocaine with intent to deliver. The
conviction arose after police, acting under the authority of a search warrant, searched a
package that was shipped to Ruaro in Ketchikan through Alaska Marine Lines. The
package contained one hundred grams of cocaine.
Ruaro appeals, arguing that the testimony which the State presented to the
magistrate at the hearing to obtain the warrant was insufficient to establish probable
cause. We agree with Ruaro and reverse his conviction.
Factual and procedural background
On the afternoon of May 30, 2006, Alaska State Trooper John K. Brown,
Jr. appeared before Ketchikan Magistrate Mary P. Treiber to obtain a search warrant for
a box addressed to Leon Ruaro. The box was being held at the Ketchikan Alaska Marine
Lines ("AML") facility. Brown asserted that he had probable cause to believe that this
box contained cocaine.
Trooper Brown stated that earlier that afternoon he had received a phone
call from an officer in the Ketchikan Police Department. That officer stated that Dan
Kelly, a supervisor with AML, had reported the arrival of a suspicious box, and that a
person named Leon Ruaro was looking for it. Trooper Brown at this point traveled to
AML to speak with Kelly directly.
Brown testified that Kelly stated that Ruaro had been receiving packages
with AML since August 2005 and had received a total of seven packages between then
and May 2006. The previous package Ruaro had received had weighed approximately
forty pounds and had "extreme amounts" of tape on it. The current package was taped
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more than might be typical, but was not abnormally taped. This package weighed eighty
pounds. Its label stated that it contained a new computer.
Kelly told Trooper Brown that he believed Ruaro's package was suspicious.
He based this conclusion on his years of experience dealing with freight and shipping.
He pointed to the extreme amount of strapping tape on Ruaro's previous package, as well
as to Ruaro's behavior when picking up that package. Kelly said that Ruaro had called
to complain that the previous package was not being delivered in a timely manner. He
had also shouted and pounded on the AML front desk, upsetting the employees. Kelly
found this behavior suspicious and believed that the package probably contained drugs.
Kelly also pointed to Ruaro's pattern of receiving packages; he found it unusual for
someone to receive household goods in the periodic or piecemeal manner that Ruaro was
receiving them. Trooper Brown said that Kelly had told him, "if you are moving, you
want all your items with you at once so it's unusual to ship household goods over a
period ... since August of last year." He said Ruaro had received six packages since
August of 2005.
Trooper Brown provided more information about Ruaro's agitation over
delays in receiving his packages. He relayed Kelly's statements that when Ruaro's last
package was to have been delivered in early May, Ruaro became quite upset when the
box was not unloaded from the shipping container on the day that Ruaro expected it.
Kelly stated that when Ruaro learned he would have to wait until the following morning
to pick up his shipment, he became angry and called the president of AML. Ruaro
reportedly told the president that he was upset because he wasn't able to get his work
documents. Ruaro also said that he was looking for his cell phone (inside the still-
unavailable box). Kelly noted that Ruaro had another cell phone available that he used
to call the AML president.
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Kelly said that Ruaro was also verbally abusive on the present occasion
when he called to see if his package was available.
Trooper Brown testified about the conversation he had with Ruaro when
Ruaro arrived at the AML facility to pick up the package. Brown asked Ruaro if he
could look in the package; Ruaro said he could not. He asked Ruaro if Ruaro knew what
was in the package. Ruaro said that it contained "an iPod and some household goods"
that "he was having shipped up from a friend." Brown noted that the bill of lading for
the package identified Ruaro as the shipper; Ruaro continued to deny shipping the
package. Brown also noticed that the bill of lading identified the box's contents as a new
computer. When he asked Ruaro why the bill of lading said "computer," Ruaro said that
the only computer equipment in the package was his iPod.
Trooper Brown later told the magistrate that Ruaro said that the shipments
were connected to the fact that he was moving. But Brown noted that Ruaro had been
shipping goods to Ketchikan since at least August 2005, nine months earlier. He also
had information suggesting that Ruaro had been in town at least between December 2004
and February 2005.
The officer also explained to the magistrate his efforts to use a drug-sniffing
dog to investigate the package. He stated that another investigator had brought his dog
to sniff the package. The dog did not alert on the package. Brown explained to the
magistrate that it is possible to package drugs in a manner that will evade detection by
dogs, and he provided some detail as to how this could be done. He stated that he had
not encountered this method frequently but that he had seen this occur on occasion,
especially with marijuana. Brown also stated that the drug dog, Mo, is trained to detect
several smells, including cocaine.
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Finally, Brown told the magistrate, "I know Ruaro through Crime
Stoppers." He then told the magistrate about three previous calls which were made to
the Crime Stoppers telephone hotline involving Ruaro. All three calls were anonymous.
The first report was on December 21, 2004. The caller stated that Ruaro,
his uncle, and his mother were all cocaine dealers, and that two days earlier the caller had
purchased two grams of cocaine from Ruaro at First City, a Ketchikan bar. The second
call was on February 17, 2005. The caller stated that on February 24 or 25, Ruaro and
his family members would be getting a new shipment of cocaine. The third report was
on February 24, 2005. The caller stated that Ruaro had received a cocaine shipment via
Alaska Airlines three days earlier and that "there [were] 15 grams of cocaine for sale in
the First City parking lot."
Trooper Brown stated that police spoke with Ruaro in late February 2005
about these reports. When they talked with Ruaro, he denied selling drugs. Trooper
Brown told the magistrate that law enforcement officers had "tried to investigate" the
three Crime Stoppers reports but had been unable to develop enough information to
make an arrest. Brown told the magistrate that Ruaro had never been arrested and
charged with drug possession.
Brown stated that the one time that law enforcement had contacted Ruaro
locally was the February 2005 exchange in which Ruaro denied selling drugs. Brown
also said that other officers had seen Ruaro at First City in early 2005. Although Brown
had not personally seen Ruaro at First City when the Crime Stoppers reports came in, in
December 2004 and February 2005, he did talk to other officers who had seen Ruaro
there in that time period.
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----------------------- Page 6-----------------------
Magistrate Treiber found probable cause to issue the search warrant. When
Trooper Brown served the search warrant, he discovered one hundred grams of cocaine
hidden in the box inside several bags inside a computer tower.
The State charged Ruaro with misconduct involving a controlled substance
in the third degree for possessing cocaine with the intent to deliver.1 Ruaro moved to
suppress the evidence based upon the contention that the warrant was not supported by
probable cause. Superior Court Judge Michael A. Thompson denied the motion. In a
bench trial before Superior Court Judge William B. Carey, Ruaro was convicted based
upon stipulated facts.
Why we conclude the evidence presented at the search warrant
hearing was insufficient to establish probable cause to issue the
warrant
The State contends that Ruaro's actions surrounding the receipt of the
package on May 30, 2006 (the package that was found to contain cocaine), were
suspicious. From AML supervisor Kelly, Trooper Brown had reliable information that
Ruaro had received six other packages since August of 2005. Kelly stated that Ruaro's
pattern of receiving packages was unusual: "if you are moving, you want all of your
items with you at once so it's unusual to ship household goods over a period ... since
August of last year." Furthermore, Brown had information from Crime Stopper reports
that Ruaro had been in Ketchikan in 2005, information that was corroborated by the fact
that the police spoke with Ruaro in late February 2005 about those reports.
The State also argues that Ruaro's statements to Trooper Brown when the
officer asked him about the package were suspicious. Ruaro denied that he had shipped
1 AS 11.71.030(a)(1).
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the package, even though his name appeared on the package as the shipper. And even
though the bill of lading said the package contained a computer, Ruaro told Trooper
Brown the package contained an iPod and household goods.
The State also argues that Ruaro's emotional reactions to minor delays in
the delivery of his packages were suspicious.
The State recognizes that because the Crime Stoppers informant (or
informants) were anonymous, the veracity of these reports needed to be established by
each declarant's past reliability or by independent police corroboration.2 But the State
mostly relies on the Crime Stoppers reports, coupled with the police contact with Ruaro
in February 2005, to support the conclusion that Ruaro had been living in Ketchikan
since that time. The State points out that, to the extent that the magistrate relied on the
Crime Stoppers reports to establish Ruaro's presence in Ketchikan, that information was
corroborated both by the prior police contact with Ruaro when they were investigating
the Crime Stoppers reports and by Kelly's reports of his contact with Ruaro when Ruaro
retrieved packages at AML.
The State indicates that the magistrate only used the Crime Stoppers reports
for one other purpose. The State observes that the magistrate "relied on the Crime
Stoppers reports only to establish that the type of contraband suspected of being in the
package was cocaine." The State "concedes that the reports lacked a sufficient
foundation to establish the likely contents of the package." The State goes on to argue
that it "was not required to identify the contents [of the package] beyond establishing
probable cause to believe [that the package contained] contraband. The other evidence
presented to the magistrate was sufficient for that purpose."
2 See Carter v. State, 910 P.2d 619, 623 (Alaska App. 1996).
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In his treatise on search and seizure, Professor LaFave observes that courts
have allowed warrants to generally describe property to be seized when the warrant
describes illegal drugs such as "narcotic drugs," "any illegal drugs," "marijuana,
dangerous drugs, stimulant drugs, and hallucinogenics," "controlled substances," and
"narcotics and dangerous drugs and narcotics paraphernalia."3 But LaFave goes on to
observe that "[b]y contrast, a more general reference to items which are contraband in
nature but without even identifying their type is insufficient."4
It was not unreasonable for the magistrate to conclude that Ruaro's
behavior surrounding his receipt of the package was suspicious. And Ruaro's behavior
suggested that Ruaro did not want to reveal the contents of the package. But we
conclude that the evidence which the State presented at the search warrant hearing was
insufficient to establish probable cause that the package contained cocaine.
In reaching this conclusion, we recognize that the magistrate's conclusion
finding probable cause is entitled to great deference and that we should uphold that
finding in doubtful or marginal cases.5 But, although Ruaro's behavior could certainly
be described as suspicious, we fail to see how that suspicious behavior could establish
probable cause that his package contained cocaine.
The State offers another argument in support of upholding the search. The
State points out that the trial court found that "Ruaro offered to open the package while
[law enforcement officers] were waiting" for the warrant to be issued. The State argues
3 See 2 Wayne R. LaFave, Search and Seizure, § 4.6(b), at 620-21 (4th ed. 2004)
(footnotes omitted).
4 Id. § 4.6(b), at 621 (footnote omitted).
5 McClelland v. State , 928 P.2d 1224, 1225 (Alaska App. 1996) (citing State v.
Conway, 711 P.2d 555, 557 (Alaska App. 1985)).
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----------------------- Page 9-----------------------
that this finding indicates that Ruaro agreed to the search and that therefore, even if the
warrant was defective, the State was authorized to conduct the search based upon
Ruaro's agreement. But the State has not established that Ruaro's offer to open the
package was not based upon the fact that the police had obtained a warrant.
Furthermore, as Ruaro points out, an offer only to open the package would not authorize
the police to conduct the thorough search of items within the package that the police
conducted in order to find the cocaine. Consequently, the State's argument that Ruaro
voluntarily agreed to authorize the thorough search that the police conducted to find the
cocaine is not supported by the record.
Conclusion
We conclude that the evidence which the State presented at the search
warrant hearing was insufficient to support a finding that Ruaro's package contained
illegal drugs. We therefore hold that the magistrate erred in denying Ruaro's motion to
suppress the evidence the police obtained when they served the warrant. It is
uncontested that, without this illegally seized evidence, the State presented insufficient
evidence to support Ruaro's conviction.
The judgment of the superior court is REVERSED.
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----------------------- Page 10-----------------------
MANNHEIMER, Judge, concurring.
I write separately to further clarify my analysis of this case.
As described by Trooper Brown when he applied for the search warrant,
Leon Ruaro received an unusual series of packages over a period of months, all shipped
to him in Ketchikan via Alaska Marine Lines. On a couple of occasions, Ruaro became
incensed and abusive when the Marine Lines failed to promptly off-load a package from
its barge, so that Ruaro could pick it up.
An agent of the Marine Lines contacted the police, informed them that
another package had arrived for Ruaro, and told them that he (the agent) thought that
Ruaro's packages and behavior were suspicious. The police then contacted the state
troopers.
Trooper Brown was aware of three prior "crime stoppers" tips suggesting
that Ruaro and his family were involved in trafficking cocaine. These tips were
anonymous, and there is nothing in the record to show whether these tips represented
information received from three different people, or (instead) one person contacting the
authorities three times. Trooper Brown told the magistrate that the authorities had
investigated these crime stoppers tips, but they had been "unable to develop enough
information to arrest [Ruaro]".
Based on the unusual series of packages, based on Ruaro's unusual
behavior with regard to a couple of these packages, and based on the three crime stoppers
tips, Trooper Brown told the magistrate that he believed there was cocaine inside the
package that had recently arrived for Ruaro - "because cocaine is the type of drug that
has been associated with Mr. Ruaro in the past". However, the trooper also informed the
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magistrate that the troopers had subjected this package to a drug-detecting dog (a dog
trained to detect cocaine), and that the dog had not alerted on the package.
Based on this evidence, and primarily based on Ruaro's behavior and
attitude toward the packages, the magistrate concluded that there was "something either
quite valuable in these [packages], or [else] drugs."
The magistrate declared that it was "[her] belief" that people who regularly
ship packages by barge "are [normally] tolerant" of the delays that inevitably occur from
time to time. And for this reason, the magistrate found that Ruaro's behavior - "losing
composure and shouting and pounding on the desk at the front counter [of the barge
company]" - was suspicious.
The magistrate then declared that, because of Ruaro's suspicious behavior,
there was probable cause to believe that the package contained "contraband" of some
kind. She further declared that, if the package contained contraband, then that
contraband must be cocaine. The magistrate explained that this conclusion was based
on the three prior crime stoppers tips: "There's no reason to believe that [the current
package contains] other [illegal] substances, because in none of the [prior] investigations
done by the Ketchikan Police Department ... has Mr. Ruaro been implicated in [the
distribution of] any other substance."
Based on this reasoning, the magistrate concluded that there was probable
cause to believe that the package contained cocaine, and she issued a search warrant
directing the authorities to seize the package and search it for cocaine.
Now, in its brief to this Court, the State concedes that it was error for the
magistrate to rely on the crime stoppers tips when she concluded that there was probable
cause to believe that the package contained cocaine:
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The magistrate ... relied on the Crime Stopper reports
... to establish that the type of contraband suspected of being
in the package was cocaine. The state concedes that [these
anonymous] reports lacked a sufficient foundation to
establish the likely contents of the package.
However, the State argues that the search warrant was valid even though
the search warrant application failed to establish probable cause to believe that the
package contained cocaine. Specifically, the State argues that if the information
presented to the magistrate was sufficient to establish probable cause to believe that the
package contained some kind of contraband , then there was no need for the State to
identify the contents of the package with any greater level of specificity.
I do not agree with the State's basic premise that the information presented
to the magistrate (stripped of the allegations of cocaine trafficking contained in the crime
stoppers tips) was sufficient to establish that Ruaro's package contained contraband of
some kind.
Ruaro had received an unusual series of packages, and he had engaged in
emotional behavior when the delivery of a couple of these packages was delayed. But
as the magistrate conceded, these facts could just as readily be explained if the packages
contained valuables, or if the packages contained other legitimate items that Ruaro
needed on an urgent basis.
Without the crime stoppers tips, there was no particular reason to believe
that the packages contained anything illegal. In fact, the failure of the drug-sniffing dog
to detect any illegal substances inside the package was an affirmative indication that the
package did not contain anything illegal.
But even assuming that the State is correct in asserting that the information
presented to the magistrate established probable cause to believe that the package
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contained contraband of some kind, this is not sufficient to validate the search warrant.
Professor LaFave addresses this topic in his work on search and seizure:
[I]f the purpose [of the warrant] is to seize ... any
property of a specified character ... which [is of itself] illicit
or contraband, [the warrant need not contain] a specific
particular description of the property ... [, and the property]
may be described generally as to its nature or character.
Illustrative of the types of descriptions which have
been upheld by the courts are ... "gambling paraphernalia"; ...
"paraphernalia used in the manufacture of counterfeit federal
reserve notes"; "any explosives, explosive materials and
parts"; "narcotic drugs"; ... [or] "controlled substances" ... .
By contrast, a more general reference to items which are
contraband in nature but without even identifying their type
is insufficient.
Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (4th ed.
2004), § 4.6(b), Vol. 2, pp. 620-21 (emphasis added). 1
By quoting this passage from LaFave, I do not necessarily endorse the
proposition that a search warrant in Alaska is valid even if its description of the items to
be seized is no more specific than "narcotic drugs" or "controlled substances". I leave
that issue for another day.
1 Citing United States v. Morris, 977 F.2d 677 (1st Cir. 1992) ("the catch-all phrase
authorizing seizure of 'any other object in violation of the law' is impermissibly broad"); and
People v. Brown , 749 N.E.2d 170, 725 N.Y.Supp.2d 601 (N.Y. 2001) (holding that the
description "any other property the possession of which would be considered contraband" is
impermissibly broad).
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Rather, my point is that the State is wrong when it suggests that a court can
validly issue a warrant authorizing a search for, and the seizure of, "contraband of any
kind".
For these reasons, I agree with my colleagues that the search warrant issued
in this case is invalid.
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