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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JONATHAN W. MCGRAW,
Court of Appeals No. A-13566
Appellant, Trial Court No. 1PW-18-00082 CR
v.
OPINION
STATE OF ALASKA,
Appellee. No. 2726 — June 24, 2022
Appeal from the Superior Court, First Judicial District, Prince
of Wales, M. Jude Pate, Judge.
Appearances: Marjorie A. Mock, Attorney at Law, under
contract with the Public Defender Agency, and Samantha
Cherot, Public Defender, Anchorage, for the Appellant. Seneca
Theno Freitag, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Treg R. Taylor, Attorney General,
Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge WOLLENBERG.
Jonathan W. McGraw was convicted of second-degree misconduct
involving a controlled substance for possessing methamphetamine with intent to deliver.1
On appeal, McGraw argues that the superior court erred in denying his motion to
suppress the methamphetamine discovered in a trailer on his property. For the reasons
explained in this decision, we agree with McGraw, and we therefore reverse McGraw’s
conviction.
Background facts
In April 2018, Jonathan McGraw was living in Naukati, a remote
community on Prince of Wales Island, and he was on felony probation for prior drug
convictions involving marijuana. One of McGraw’s probation conditions authorized a
warrantless search of his property if the search was directed by a probation officer and
supported by “reasonable suspicion of possession, use, or distribution” of marijuana or
alcohol:
[Y]ou shall submit to a search at the direction of a probation
officer at any time, with or without a warrant, and by any law
enforcement officer or probation officer, of the defendant’s
person and property, residence, a vehicle in which you may
be found or owned by you, for marijuana or alcohol upon
reasonable suspicion of possession, use, or distribution of
those substances. And the order may also be given by any
probation officer in the lawful discharge of the officer’s
supervising functions.
McGraw’s probation officer, Erica Johnson, monitored McGraw primarily
over the phone because of the remoteness of his location. She knew that McGraw had
undergone a substance abuse evaluation, and that the evaluation had recommended
1
Former AS 11.71.030(a)(1)(C) (2018).
–2– 2726
treatment that McGraw had not yet obtained. But according to her later testimony at the
evidentiary hearing on McGraw’s motion to suppress, she did not have any “large
suspicion” that he was using alcohol or marijuana.
On April 18, Investigator Larry Dur’an, with the Alaska State Troopers,
sent an email to Johnson, stating: “I received a tip today that Jonathan McGraw was seen
at a local dealers [sic] home on [Prince of Wales] who sells meth and heroin. The person
suspects that John is using.” The email did not disclose the identity of the tipster, and
there is no indication in the record that Johnson asked for additional information. In
response, Johnson sent a form request to the troopers stationed on Prince of Wales
Island, asking them to search McGraw’s residence for “drugs, drug paraphernalia,
alcohol, [and] weapons.”
Three days later, two troopers arrived at McGraw’s residence. The troopers
later testified that McGraw was “agitated” and “profusely sweating” when they
encountered him on the front step of his home, even though it was not warm outside.
McGraw’s behavior gave one of the troopers “some” suspicion that McGraw was under
the influence of a stimulant. The troopers searched McGraw’s residence, vehicles, and
two trailers on his property (one of which was locked), and they discovered drug
paraphernalia and several baggies of methamphetamine. McGraw was arrested and
charged with second-degree misconduct involving a controlled substance (possessing
methamphetamine with intent to deliver).
Prior to trial, McGraw filed a motion to suppress the evidence seized during
the troopers’ search of his home. McGraw acknowledged that his probation conditions
authorized his probation officer to order searches of his property based on reasonable
suspicion that he was using (or possessed) alcohol or marijuana. He argued, however,
that Investigator Dur’an’s tip to Probation Officer Johnson was insufficient to establish
reasonable suspicion to order the search.
–3– 2726
Following an evidentiary hearing, the superior court issued a written order
denying McGraw’s motion to suppress. The superior court agreed with McGraw that the
tip, standing alone, was insufficient to give his probation officer the reasonable suspicion
necessary to order the search. But the court concluded that the tip, combined with the
troopers’ on-scene observations that McGraw appeared sweaty and agitated and the
probation officer’s knowledge of McGraw’s prior drug use and the fact that he had not
yet completed substance abuse treatment, was sufficient to establish reasonable
suspicion. The court further concluded that the information known to McGraw’s
probation officer could be imputed to the troopers and that the troopers therefore had
reasonable suspicion to conduct the search.
A jury subsequently found McGraw guilty of second-degree misconduct
involving a controlled substance.
Why we conclude that the superior court erred in declining to suppress
evidence discovered during the search of McGraw’s residence
On appeal, McGraw renews his contention that there was no legal
justification for the search of his property.
The Fourth Amendment to the United States Constitution and Article I,
Section 14 of the Alaska Constitution prohibit unreasonable searches and seizures,
including searches and seizures inside a home.2 “Under the Alaska Constitution, ‘a
search without a warrant is per se unreasonable unless it clearly falls within one of the
narrowly defined exceptions to the warrant requirement.’”3 The State bears the burden
2
See, e.g., Kelley v. State, 347 P.3d 1012, 1013 (Alaska App. 2015).
3
State v. Gibson, 267 P.3d 645, 650-51 (Alaska 2012) (quoting Schultz v. State, 593
P.2d 640, 642 (Alaska 1979)).
–4– 2726
of establishing that a warrantless search was permissible under an exception to the
warrant requirement.4
The State argued in the superior court, and maintains on appeal, that the
warrantless search of McGraw’s residence was authorized by his probation conditions.
We have previously recognized probation searches as an exception to the warrant
requirement, but only if certain conditions are met: (1) “the search has been authorized
by the conditions of probation or release”; (2) “the search is conducted by or at the
direction of probation authorities”; and (3) “the search bears a direct relationship to the
nature of the crime for which the probationer was convicted.”5 As we explained above,
McGraw’s probation conditions only permitted searches directed by a probation officer
based on “reasonable suspicion of possession, use, or distribution of [marijuana or
alcohol].”
The superior court found, and the State concedes, that McGraw’s probation
officer did not possess reasonable suspicion at the time she directed the troopers to
search McGraw’s property. The State nonetheless contends that the troopers’
independent observations on the scene, when combined with the information known to
the probation officer, yielded reasonable suspicion.
But we may not consider the troopers’ observations, which were unknown
to the probation officer at the time she ordered the search. For a search to fall within the
probation search exception to the warrant requirement, the search must be directed by
a probation officer.6 When a search is permitted solely at the authorization of a specific
4
Jarnig v. State, 309 P.3d 1270, 1274 (Alaska App. 2013).
5
Chandler v. State, 487 P.3d 616, 625 (Alaska App. 2021) (quoting Milton v. State, 879
P.2d 1031, 1034 (Alaska App. 1994)).
6
See, e.g., Chandler, 487 P.3d at 625; Milton, 879 P.2d at 1034.
–5– 2726
entity (often a judge, but here, a probation officer), we may only consider — when
evaluating the validity of the authorization — information brought to that entity’s
attention at the time of the authorization.7 We do not examine facts unknown to the
authority, or events that occurred after authorization was granted.8
Under these principles, even if we assumed that the information discovered
by the troopers on the scene — when combined with the additional information known
to the probation officer — would have been sufficient to establish reasonable suspicion
(a conclusion we question), the addition of that information would not rehabilitate the
probation officer’s prior invalid order to search. And the troopers themselves had no
authority to search McGraw’s residence based only on reasonable suspicion. The State
has therefore failed to establish a valid exception to the warrant requirement. The
evidence obtained through the search should have been suppressed.
7
See Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 565 n.8 (1971) (“[A]n
otherwise insufficient affidavit cannot be rehabilitated by testimony concerning information
possessed by the affiant when he sought the warrant but not disclosed to the issuing
magistrate.”); McClelland v. State, 928 P.2d 1224, 1225 (Alaska App. 1996) (recognizing
that, in determining the validity of a search warrant, a reviewing court may consider only
information brought to the attention of the issuing magistrate); see also 2 Wayne R. LaFave,
Search and Seizure, § 4.3(a), at 639-40 (5th ed. 2012) (explaining that a defective search
warrant affidavit cannot be resuscitated on the basis of other information known to the affiant
but not disclosed to the magistrate tasked with issuing the warrant).
8
Cf. Adepoju v. State, 2014 WL 819326, at *2-3 (Alaska App. Feb. 26, 2014)
(unpublished) (upholding search of probationer and his vehicle for drugs, where search was
authorized by probation officer after police twice called probation officer to alert her that
probationer was observed in area known for drug-related activity and had committed traffic
violation); Bostwick v. State, 2010 WL 668947, at *3-4 (Alaska App. Feb. 24, 2010)
(unpublished) (upholding search of defendant’s van authorized by probation officer after
police officer called probation officer during traffic stop and relayed information that, after
stopping defendant’s van for a traffic violation, he smelled alcohol on defendant’s breath).
–6– 2726
Conclusion
The judgment of the superior court is REVERSED.
–7– 2726