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 Ket-chikan 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 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 Ketchi-kan 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:
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 *1238lacked 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 contrabamd, 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 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.
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.
. 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, 96 N.Y.2d 80, 725 N.Y.S.2d 601, 749 N.E.2d 170 (2001) (holding that the description "any other property the possession of which would be considered contraband" is impermissi-bly broad).