McGee v. State

OPINION

STEWART, Judge.

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 McGee's package contained contraband when they removed it from the normal flow of commerce and tested it. The State does not challenge Judge Pengilly's 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 Pengilly's findings on remand and reverse McGee's 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 court's 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. Be*431cause 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 evi-dentiary 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 McGee's package from the company's 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 conelud-ed that the addressee was fictitions because he recalled "a legend of Sam McGee or something"3 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 McGee's 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 McGee's 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 McGee's 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:

[TThe 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 Pengilly's factual findings are unchallenged. Judge Pengilly found that McGee's 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 *432also found that the officer thought that McGee's name was fictitious. The question then is whether these facts would lead a person of reasonable caution to believe that McGee's 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 carrier's 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 air-bill, the cash payment for shipping from Tacoma, and the officer's subjective thought that McGee's name was comical and therefore fictitious-distinguished McGee's 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 Pen-gilly that the police did not have reasonable suspicion to test McGee's package with the Itemiser.

Conclusion

We uphold Judge Pengilly's ruling that the police did not have reasonable suspicion to test McGee's package. Accordingly, we REVERSE McGee's convictions.

MANNHEIMER, Judge, concurring.

. See McGee v. State, 51 P.3d 970, 971 (Alaska App.2002).

. See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).

. See The Cremation of Sam McGee, a poem by Robert Service originally published in 1916.

. 708 P.2d 708 (Alaska App.1985).

. Id. at 709-11.

. McGee, 51 P.3d at 971.

. Hayes v. State, 785 P.2d 33, 36 (Alaska App.1990).

. 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 LEd.2d 889, 906 (1968)).

. See Terms and Conditions for Shipping within the United States at www.fedex.com/us/ser-vices/pdf/SG._Vol3_TermsCond.pdf?link=4 (last visited April 4, 2003).

. See www.fedex.com/ratefinder/shiplIufo (last visited April 4, 2003).