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Bochkovsky v. State

Court of Appeals of Alaska

August 28, 2015

VLADIMIR A. BOCHKOVSKY, Appellant,
v.
STATE OF ALASKA, Appellee

Page 303

Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge. Trial Court No. 3PA-10-1771 CR.

Hanley Smith, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions & Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.

Before: Mannheimer, Chief Judge, Allard, Judge, and Matthews, Senior Supreme Court Justice.[*] Judge MANNHEIMER, dissenting.

OPINION

Page 304

MATTHEWS, Senior Justice writing for the Court.

Vladimir A. Bochkovsky was convicted after a jury trial of misconduct involving a controlled substance in the second degree in violation of AS 11.71.020(a)(1) (possession of oxycodone with intent to deliver). At sentencing, the superior court rejected a proposed mitigating factor that the offense involved a small quantity of drugs and sentenced Bochkovsky to 6 years of imprisonment. On appeal, Bochkovsky contends that: (1) a state trooper lacked reasonable suspicion to subject a drug-containing package to a canine sniff; (2) there was insufficient evidence that Bochkovsky intended to deliver the oxycodone; and (3) the superior court erred in rejecting the " small quantities" mitigator. We conclude that none of these contentions has merit and affirm.

Summary of facts and proceedings

In July 2010, a FedEx manager in Wasilla contacted the Alaska State Troopers about a package he believed was suspicious. The troopers also thought the package was suspicious and had a trained dog sniff it in the FedEx offices. When the dog alerted, a trooper obtained a search warrant, opened the package, and discovered that it contained 129 OxyContin pills disguised as rolls of candy inside a cellophane bag. Subsequently, the troopers prepared a substitute package for delivery. They put only one of the OxyContin pills in the new package along with some candy and the rest of the contents of the original package. They also equipped the new package with an electronic device that would emit a signal when the package was opened.

The troopers obtained another warrant to search the residence where the package was to be delivered. When the package was delivered, Bochkovsky answered the door and accepted delivery. Shortly after delivery, the electronic device sounded and the troopers knocked on the door of the residence. When no one answered, they forced their way in and found Bochkovsky in a bedroom with the opened package and its contents on the floor.

Prior to his trial, Bochkovsky moved to suppress the contents of the package on the ground that the troopers lacked reasonable suspicion to subject it to a dog sniff. After an evidentiary hearing, the superior court denied the motion.

A jury then convicted Bochkovsky of second-degree misconduct involving a controlled substance[1] on the theory that he possessed the oxycodone (the active ingredient in OxyContin) with intent to deliver and fourth-degree misconduct involving a controlled substance[2] on the theory that he possessed any amount of oxycodone. The superior court merged the two counts at sentencing.

Bochkovsky asked the sentencing court to impose a mitigated sentence because there was only one OxyContin pill in the package at the time he was apprehended.[3] He also proposed the " least serious conduct" mitigator[4] and the " minor harm" mitigator.[5] The sentencing court rejected the proposed mitigating factors and sentenced Bochkovsky to 6 years to serve, a sentence within the presumptive range of 5 to 8 years for a first felony offender.[6]

Bochkovsky appeals.

Page 305

Facts concerning Bochkovsky's package and the canine sniff

The package, a cardboard box supplied by FedEx, was taped shut, but not all the seams were sealed. A FedEx airbill was taped to the top indicating that the recipient was Mikey Sheeby of 341 East Heather Way, Apartment 1, Wasilla. The sender's name was Mark Vu of 3111 132nd St. SE, Apartment A104, Everett, Washington, and a phone number was listed. The airbill was filled out by hand. It called for next-day delivery. The sender paid $67.98 in cash to ship the package. The package was sent from a Kinko's/FedEx facility in Everett, Washington, on July 1, 2010.

Trooper Mike Ingram was dispatched to FedEx in Wasilla after a manager identified the package as suspicious. Ingram had been assigned to the Mat-Su narcotics unit for some six and a half years and had received substantial training in narcotics investigations, including " drug interdictions via commercial modes of transportation." Based on this training and experience, Ingram looked for " key indicators" on packages that have a " high probability of having drugs."

Ingram noted several indicators that led him to suspect that this package contained drugs. The package had a handwritten label, which indicated that it was probably not a commercial shipment, which constituted most of FedEx's business. The shipment was paid in cash and had been sent by next day air, which is relatively expensive -- $67.98 in this case. Ingram found this factor " pretty significant" because " [w]e know that individuals [who] are shipping drugs through commercial modes ... often pay cash because the items inside are more valuable than the money they're [spending] to have a speedy delivery of that package." The shipment was also made at a " [Kinko's] FedEx copy, which is basically a drop-box I believe at Everett, Washington." [7] Ingram explained that this mode of delivery, like a cash payment, " helps to further distance [the sender] from being tied back to the package if it were to be intercepted via law enforcement."

The final indicator was Ingram's belief that the recipient, " Mikey Sheeby," was fictitious. Before the dog sniff, Ingram checked the Alaska Public Safety Information Network (APSIN) and found no one named Mike, Michael, or Mikey Sheeby.[8] According to Ingram, APSIN contains the names of people with an Alaska identification card or driver's license, and people who have had contact with the criminal justice system. Ingram also checked the " Mat-Com ... computer automated dispatch," a database compiled by the combined dispatch center for all police in the Matanuska-Susitna Valley. Ingram explained that Mat-Com indicates a " history [of police contact] at a house and who ha[s] been previously contacted at a [particular] residence." This database did have some history of individuals at the address given on the package, but none concerning a person named Sheeby.[9] Ingram decided that these

Page 306

factors, taken together, justified subjecting the package to a canine sniff.

To facilitate the dog sniff, the package was placed on the floor of the FedEx facility, along with other packages. The package remained on the floor for a short time until the dog sniff was conducted. There is no suggestion that any delay in delivery would have occurred if the dog had not indicated that contraband was present.

Why we conclude that the troopers had reasonable suspicion to briefly detain the package and subject it to a dog sniff

Bochkovsky claims that Ingram lacked reasonable suspicion to subject the package to a canine sniff for narcotics. He argues that the indicators Ingram relied on to conclude that the package probably contained narcotics were innocuous and that the trooper conducted an inadequate investigation before concluding that " Mikey Sheeby" was a fictitious name.

Under our case law, police are required to have reasonable suspicion that a package contains illegal drugs before they may temporarily detain it or subject it to sniffing by a drug detection dog.[10] This means that there must be some evidence that " serve[s] to differentiate the suspected package from the body of innocent packages." [11] But it does not mean that every factor the police rely on must be suggestive of narcotics; reasonable suspicion may be based on a series of seemingly innocent acts which, when " taken together[,] warranted further investigation." [12] " Moreover, circumstances which appear innocent to the outside observer may suggest criminal activity to experienced law enforcement officers." [13]

In arguing that there was no reasonable suspicion for the dog sniff in this case, Bochkovsky relies primarily on McGee v. State, a case in which this Court found that the police lacked reasonable suspicion to subject a FedEx package to a spectrometer test.[14] A spectrometer test, like a dog sniff, can reveal the presence of illegal drugs in an unopened package.

In McGee, the officer relied on some of the same factors to conclude that the package was suspicious: the airbill was addressed by hand, the package was sent via overnight delivery, the shipping charge ...


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