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Moore v. State

Court of Appeals of Alaska

May 27, 2016

ETHAN RYAN MOORE, Appellant,
v.
STATE OF ALASKA, Appellee.

         Appeal from the Superior Court, Third Judicial District, No. 3DI-11-210 C R Dillingham, Fred Torrisi, Judge.

          Laurence Blakely, Mendel & Associates, Anchorage, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

          Mary A. Gilson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.

          Before: Mannheimer, Chief Judge, and Allard, Judge.

          OPINION

          Mannheimer judge

         On June 9, 2011, acting on several informants' tips, two police officers stopped Ethan Ryan Moore at the Dillingham airport shortly after he retrieved his two pieces of luggage from baggage claim. The officers told Moore that they believed he was transporting marijuana, and they asked Moore for permission to search his luggage. Moore, who was on his way to Togiak, declined to consent to this search. The officers then seized both pieces of Moore's luggage, transported them to the Dillingham police station, and contacted the local magistrate to apply for a search warrant.

         After hearing the warrant application, the magistrate concluded that there was no probable cause for the search, so he refused to issue the search warrant. More specifically, the magistrate concluded that the officers had failed to provide sufficient proof of their informants' credibility to satisfy the Aguilar-Spinelli test. [1]

         When the magistrate issued this ruling, he invited the officers to present more information to corroborate their informants.

         But the officers did not present more information to the magistrate and ask him to reconsider his decision. Nor did the officers acquiesce in the magistrate's decision and return Moore's luggage to him. Instead, the officers kept Moore's luggage overnight and then, the next morning, they shipped it to the Alaska State Troopers in Anchorage. After the luggage arrived in Anchorage, it was subjected to sniffing by a drug-detection dog. The dog alerted to the luggage, and the troopers then applied for a search warrant, this time in front of an Anchorage judge. The warrant was granted.

         The ensuing search of Moore's luggage disclosed seven vacuum-sealed bags of marijuana totaling approximately seven ounces. Based on the discovery of this marijuana, Moore was charged with, and later convicted of, fourth-degree controlled substance misconduct. [2]

         In this appeal, Moore argues that, after the Dillingham magistrate refused to issue the search warrant, it was illegal for the Dillingham officers to retain his luggage overnight and then ship it to Anchorage - and that all of the ensuing investigative efforts (the dog sniff and the second search warrant application) were tainted by this illegality.

         For the reasons explained in this opinion, we agree with Moore, and we therefore reverse his conviction.

         The State’s contention that the Dillingham officers needed only reasonable suspicion to hold Moore’s luggage overnight and then ship it to Anchorage for further investigative inspection

         Moore does not contest that the Dillingham officers had reasonable suspicion to believe that he was carrying marijuana for commercial purposes - and that the officers therefore had the authority to temporarily seize his luggage so that they might apply for a search warrant. See Pooley v. State, 705 P.2d 1293, 1307 (Alaska App. 1985); LeMense v. State, 754 P.2d 268, 272-73 (Alaska App. 1988).

         But Moore argues that the officers exceeded their authority when they retained his luggage overnight and then shipped it to Anchorage for further investigative efforts. The State, in turn, responds that the officers were simply pursuing the most prompt investigative efforts that were available to them under the circumstances, since there were no drug-sniffing dogs in Dillingham.

         To resolve these arguments, we must examine and more clearly define the scope of police authority to conduct temporary investigative seizures of travelers' luggage based on reasonable suspicion.

         The United States Supreme Court discussed the limits that the Fourth Amendment places on temporary investigative detentions of luggage in United States v. Place, 462 U.S. 696, 708-710; 103 S.Ct. 2637, 2645-46; 77 L.Ed.2d 110 (1983).

         In Place, the Supreme Court firmly rejected the government's argument that temporary investigative seizures of travelers' luggage could be more intrusive - i.e., of greater scope and duration - than investigative seizures of travelers themselves:

The premise of the Government's argument is that seizures of property are generally less intrusive than seizures of the person. While true in some circumstances, that premise is faulty on the facts ... in this case. The precise type of detention we confront here is seizure of personal luggage from the immediate possession of [a] suspect for the purpose of arranging exposure to a narcotics detection dog. Particularly in the case of detention of luggage within the traveler's immediate possession, the police conduct intrudes on both the suspect's possessory interest in his luggage as well as his liberty interest in proceeding with his itinerary. The person whose luggage is detained is technically still free to continue his travels or carry out other personal activities pending release of the luggage. ... Nevertheless, such a seizure can effectively restrain the person[, ] since he is subjected to the possible disruption of his travel plans in order to remain with his luggage or to arrange for its return. Therefore, when the ...

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