Opinion
Court of Appeals No. A-12543 No. 6577
01-24-2018
XAVIER D. PETE JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Margi A. Mock, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. John H. Haley, Assistant Attorney General, Office of Special Prosecutions, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 2NO-13-638 CR
MEMORANDUM OPINION
Appeal from the District Court, Second Judicial District, Nome, Timothy Dooley and Paul A. Roetman, Judges, and Brooke Alowa, Magistrate Judge. Appearances: Margi A. Mock, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. John H. Haley, Assistant Attorney General, Office of Special Prosecutions, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Xavier D. Pete Jr. was convicted of illegal importation for attempting to bring alcohol into Stebbins, a local option community that bans the sale and importation of alcohol. Pete was convicted based on liquor found in his luggage on a flight from Nome to Stebbins.
On appeal, Pete argues that the district court erred when it concluded that there was sufficient probable cause for the state trooper to seize Pete's luggage in the Nome airport and to obtain a search warrant to search its contents. For the reasons explained here, we affirm the district court's probable cause determination.
Background facts and prior proceedings
On June 12, 2013, an employee of ERA Aviation called Alaska State Trooper Ann Sears at her office in Nome to give her a tip about suspected illegal importation of alcohol. The ERA employee told Trooper Sears that a cargo handler loading the baggage on an ERA flight to Stebbins noticed that one of the bags made a sloshing noise. According to the luggage tag, the bag belonged to Pete.
Trooper Sears went to the airport to investigate the tip. When she arrived, the bag — a small gym bag — had been taken off the aircraft and segregated from the other luggage. Trooper Sears confirmed that the bag belonged to Pete and that it was headed to Stebbins, a local option community. She also confirmed that the bag was disproportionately heavy for its size — weighing around nineteen pounds. She then went to talk to Pete.
When Sears found Pete, she told him that he was not under arrest and that he did not have to talk to her. She then asked Pete whether he had any checked luggage. Pete initially claimed that he had no checked luggage. But when Sears pointed out that there was a bag in the checked luggage area with his name on it, Pete acknowledged that the bag was his. Pete told Sears that the bag contained only clothes. Sears expressed skepticism that the bag only contained clothes because the bag weighed nineteen pounds. Pete repeated that the bag only contained clothes, stating that he had bought additional socks and underwear while he was in Nome. Sears later testified that Pete did not look at her during the conversation and that, by the end of the conversation, his nose was sweating.
Sears told Pete that she was going to seize his bag and apply for a search warrant. Sears then took the bag to the trooper's office where she checked Pete's criminal history and discovered that he had prior convictions for minor consuming alcohol and for furnishing alcohol to a minor. Sears had the bag for approximately sixty minutes before she applied for the search warrant.
The search warrant was granted, and the bag was then searched. Inside the bag, Sears found nine bottles of vodka — three 750 ml bottles and six 375 ml bottles. Sears later testified that the 750 ml bottles sell for about $400 a bottle in Stebbins and the 375 ml bottles sell for about $200 a bottle. Pete was then arrested and charged with illegal importation of alcohol.
AS 04.11.499(c) & AS 04.16.200(e)(1).
Prior to trial, Pete's attorney filed a motion to suppress the alcohol discovered in Pete's bag, arguing that the seizure of the bag was not supported by probable cause. (The State did not dispute that Trooper Sears required probable cause to transport the bag to the troopers' office and hold it for sixty minutes before applying for the warrant.)
See United States v. Place, 462 U.S. 696, 706 (1983).
The trial court held an evidentiary hearing in which Trooper Sears testified to the facts described above. The court found Sears's testimony credible, and the court concluded that Sears had probable cause to seize the bag and apply for a search warrant based on the totality of the information she possessed at the time she seized the bag.
Pete's attorney later filed a second motion to suppress, arguing, inter alia, that the airline employee's tip was not credible or reliable for purposes of the Aguilar/Spinelli test and because the employee's name was unknown, the cargo handler's name was unknown, it was not clear how many other levels of hearsay existed between the cargo handler and the employee. A magistrate judge denied this motion, concluding that the tip was from a credible source and that details of the tip were also directly corroborated by the trooper. The magistrate judge also noted that the probable cause determination rested on both the tip and the trooper's independent investigation, which included her interview with Pete.
Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969); see State v. Jones, 706 P.2d 317, 324-25 (Alaska 1985) (holding that, as a matter of state law, the Aguilar/Spinelli test continues to govern the evaluation of hearsay information offered to support a search or seizure).
Following a jury trial, Pete was convicted of the charged importation offense. This appeal followed.
Pete's claim that the seizure of his bag was not supported by probable cause
On appeal, Pete renews his claim that the seizure of the bag was not supported by probable cause and that the tip was not sufficiently reliable or credible under the Aguilar/Spinelli test. Pete emphasizes, in particular, that the trooper never obtained the name of the ERA employee who called in the tip, or the name of the cargo handler who informed that employee that Pete's bag "sloshed." Pete also points out that the trooper never independently verified that the bag did, indeed, "slosh."
See Wilson v. State, 82 P.3d 783, 783 (Alaska App. 2003) (explaining the credibility and reliability prongs of the Aguilar/Spinelli test).
We agree with the district court judge and the magistrate judge that there was probable cause to support the seizure. We note that, although the trooper did not request the ERA employee's name, she nevertheless received confirmation that she had been speaking with an ERA employee and that the information the employee had given was accurate because, upon arrival at the airport, the trooper found Pete's bag removed from the aircraft and segregated from the other luggage. The trooper also independently verified that the contents of the bag were suspiciously heavy. Moreover, the trooper did not immediately seize the bag. Instead, she conducted her own independent investigation and interviewed Pete. As already recounted, Pete initially lied about not having checked luggage. And, when confronted with that lie, Pete did not provide any plausible explanation for the bag's disproportionate weight. The trooper also observed that Pete was visibly nervous throughout the interview and that his nose was sweating by the end of the interview.
On appeal, Pete argues that many people become nervous when questioned by the police, and he asserts that the disproportionate weight and reported "sloshing" sound could have been caused by liquid groceries or some other lawful item that a person might not feel comfortable disclosing to the police. But probable cause "hinges on probability rather than certainty [and] a showing of probable cause need not rule out other explanations that are merely possible."
State v. Koen, 152 P.3d 1148, 1152 (Alaska 2007). --------
Thus, given the initial tip, the circumstances indicating the trustworthiness of that tip, and the results of the trooper's own independent investigation, we conclude that there was sufficient probable cause to justify the trooper's seizure of the bag and the resulting search warrant.
Conclusion
The district court's judgment is AFFIRMED.