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Ruaro v. State (7/27/2012) ap-2364

Ruaro v. State (7/27/2012) ap-2364

                                                 NOTICE 

        The text of this opinion can be corrected before the opinion is published in the Pacific 

        Reporter.   Readers are encouraged to bring typographical or other formal errors to the 

        attention of the Clerk of the Appellate Courts. 



                                  303 K Street, Anchorage, Alaska   99501
 

                                           Fax:  (907) 264-0878
 

                            E-mail:  corrections @ appellate.courts.state.ak.us
 



               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 



LEON D. RUARO,                                    ) 

                                                  )          Court of Appeals No. A-10878 

                            Appellant,            )         Trial Court No. 1KE-06-467 CR 

                                                  ) 

             v.                                   )                   O P I N I O N 

                                                  ) 

STATE OF ALASKA,                                  ) 

                                                  ) 

                            Appellee.             )          No. 2364     -    July 27, 2012 

                                                  ) 



                 Appeal     from    the   Superior    Court,    First  Judicial    District, 

                 Ketchikan, William B. Carey, Judge. 



                 Appearances:       Rex    Lamont     Butler,   Rex   Lamont     Butler   & 

                 Associates,     Anchorage,      for   the  Appellant.       Kenneth     M. 

                 Rosenstein,     Assistant    Attorney    General,    Office    of  Special 

                 Prosecutions      and  Appeals,     Anchorage,     and   John   J.  Burns, 

                 Attorney General, Juneau, for the Appellee. 



                 Before:    Coats,    Chief   Judge,   and   Mannheimer       and   Bolger, 

                 Judges. 



                 COATS,      Chief Judge. 

                 MANNHEIMER, Judge, concurring. 


----------------------- Page 2-----------------------

               Leon D. Ruaro appeals his conviction for misconduct involving a controlled 



substance     in  the  third  degree  for  possessing   cocaine   with  intent   to  deliver.  The 



conviction arose after police, acting under the authority of a search warrant, searched a 



package that was shipped to Ruaro in Ketchikan through Alaska Marine Lines.  The 



package contained one hundred grams of cocaine. 



               Ruaro appeals, arguing that the testimony which the State presented to the 



magistrate at the hearing to obtain the warrant was insufficient to establish probable 



cause.   We agree with Ruaro and reverse his conviction. 



               Factual and procedural background 



               On the afternoon of May 30, 2006, Alaska State Trooper John K. Brown, 



Jr. appeared before Ketchikan Magistrate Mary P. Treiber to obtain a search warrant for 



a box addressed to Leon Ruaro. The box was being held at the Ketchikan Alaska Marine 



Lines ("AML") facility.  Brown asserted that he had probable cause to believe that this 



box contained cocaine. 



               Trooper Brown stated that earlier that afternoon he had received a phone 



call from an officer in the Ketchikan Police Department.           That officer stated that Dan 



Kelly, a supervisor with AML, had reported the arrival of a suspicious box, and that a 



person named Leon Ruaro was looking for it.          Trooper Brown at this point traveled to 



AML to speak with Kelly directly. 



               Brown testified that Kelly stated that Ruaro had been receiving packages 



with AML since August 2005 and had received a total of seven packages between then 



and May 2006.  The previous package Ruaro had received had weighed approximately 



forty pounds and had "extreme amounts" of tape on it.           The current package was taped 



                                              - 2 -                                          2364
 


----------------------- Page 3-----------------------

more than might be typical, but was not abnormally taped.  This package weighed eighty 



pounds.  Its label stated that it contained a new computer. 



              Kelly told Trooper Brown that he believed Ruaro's package was suspicious. 



He based this conclusion on his years of experience dealing with freight and shipping. 



He pointed to the extreme amount of strapping tape on Ruaro's previous package, as well 



as to Ruaro's behavior when picking up that package.   Kelly said that Ruaro had called 



to complain that the previous package was not being delivered in a timely manner.  He 



had also shouted and pounded on the AML front desk, upsetting the employees.       Kelly 



found this behavior suspicious and believed that the package probably contained drugs. 



Kelly also pointed to Ruaro's pattern of receiving packages; he found it unusual for 



someone to receive household goods in the periodic or piecemeal manner that Ruaro was 



receiving them.  Trooper Brown said that Kelly had told him, "if you are moving, you 



want all your items with you at once so it's unusual to ship household goods over a 



period ... since August of last year." He said Ruaro had received six packages since 



August of 2005. 



              Trooper Brown provided more information about Ruaro's agitation over 



delays in receiving his packages.  He relayed Kelly's statements that when Ruaro's last 



package was to have been delivered in early May, Ruaro became quite upset when the 



box was not unloaded from the shipping container on the day that Ruaro expected it. 



Kelly stated that when Ruaro learned he would have to wait until the following morning 



to pick up his shipment, he became angry and called the president of AML.         Ruaro 



reportedly told the president that he was upset because he wasn't able to get his work 



documents.    Ruaro also said that he was looking for his cell phone (inside the still- 



unavailable box).   Kelly noted that Ruaro had another cell phone available that he used 



to call the AML president. 



                                          - 3 -                                     2364
 


----------------------- Page 4-----------------------

                Kelly said that Ruaro was also verbally abusive on the present occasion 



when he called to see if his package was available. 



                Trooper Brown testified about the conversation he had with Ruaro when 



Ruaro arrived at the AML facility to pick up the package.                Brown asked Ruaro if he 



could look in the package; Ruaro said he could not. He asked Ruaro if Ruaro knew what 



was in the package.       Ruaro said that it contained "an iPod and some household goods" 



that "he was having shipped up from a friend."             Brown noted that the bill of lading for 



the   package   identified   Ruaro   as   the   shipper; Ruaro   continued   to   deny   shipping   the 



package. Brown also noticed that the bill of lading identified the box's contents as a new 



computer.  When he asked Ruaro why the bill of lading said "computer," Ruaro said that 



the only computer equipment in the package was his iPod. 



                Trooper Brown later told the magistrate that Ruaro said that the shipments 



were connected to the fact that he was moving.            But Brown noted that Ruaro had been 



shipping goods to Ketchikan since at least August 2005, nine months earlier.                  He also 



had information suggesting that Ruaro had been in town at least between December 2004 



and February 2005. 



                The officer also explained to the magistrate his efforts to use a drug-sniffing 



dog to investigate the package.   He stated that another investigator had brought his dog 



to sniff the package.      The dog did not alert on the package.            Brown explained to the 



magistrate that it is possible to package drugs in a manner that will evade detection by 



dogs, and he provided some detail as to how this could be done.                He stated that he had 



not encountered this method frequently but that he had seen this occur on occasion, 



especially with marijuana.   Brown also stated that the drug dog, Mo, is trained to detect 



several smells, including cocaine. 



                                                 - 4 -                                            2364
 


----------------------- Page 5-----------------------

                Finally,    Brown     told  the   magistrate,    "I  know    Ruaro     through    Crime 



Stoppers."    He then told the magistrate about three previous calls which were made to 



the Crime Stoppers telephone hotline involving Ruaro. All three calls were anonymous. 



                The first report was on December 21, 2004.            The caller stated that Ruaro, 



his uncle, and his mother were all cocaine dealers, and that two days earlier the caller had 



purchased two grams of cocaine from Ruaro at First City, a Ketchikan bar.  The second 



call was on February 17, 2005.          The caller stated that on February 24 or 25, Ruaro and 



his family members would be getting a new shipment of cocaine.                  The third report was 



on February 24, 2005.  The caller stated that Ruaro had received a cocaine shipment via 



Alaska Airlines three days earlier and that "there [were] 15 grams of cocaine for sale in 



the First City parking lot." 



                Trooper Brown stated that police spoke with Ruaro in late February 2005 



about these reports.      When they talked with Ruaro, he denied selling drugs.                Trooper 



Brown told the magistrate that law enforcement officers had "tried to investigate" the 



three Crime Stoppers reports but had been unable to develop enough   information to 



make   an   arrest.  Brown   told   the   magistrate   that   Ruaro   had   never   been   arrested   and 



charged with drug possession. 



                Brown stated that the one time that law enforcement had contacted Ruaro 



locally was the February 2005 exchange in which Ruaro denied selling drugs.                     Brown 



also said that other officers had seen Ruaro at First City in early 2005.  Although Brown 



had not personally seen Ruaro at First City when the Crime Stoppers reports came in, in 



December 2004 and February 2005, he did talk to other officers who had seen Ruaro 



there in that time period. 



                                                 - 5 -                                             2364
 


----------------------- Page 6-----------------------

                Magistrate Treiber found probable cause to issue the search warrant. When 



Trooper Brown served the search warrant, he discovered one hundred grams of cocaine 



hidden in the box inside several bags inside a computer tower. 



                The State charged Ruaro with misconduct involving a controlled substance 

in the third degree for possessing cocaine with the intent to deliver.1             Ruaro moved to 



suppress the evidence based upon the contention that the warrant was not supported by 



probable cause.      Superior Court Judge Michael A. Thompson denied the motion.                   In a 



bench trial before Superior Court Judge William B. Carey, Ruaro was convicted based 



upon stipulated facts. 



                Why   we   conclude   the   evidence   presented   at   the   search   warrant 

                hearing was insufficient to establish probable cause to issue the 

                warrant 



                The   State   contends   that   Ruaro's   actions   surrounding   the   receipt   of   the 



package   on   May   30,   2006   (the   package   that   was   found   to   contain   cocaine),   were 



suspicious.  From AML supervisor Kelly, Trooper Brown had reliable information that 



Ruaro had received six other packages since August of 2005.  Kelly stated that Ruaro's 



pattern of receiving packages was unusual:            "if you are moving, you want all of your 



items with you at once so it's unusual to ship household goods over a period ... since 



August of last year."   Furthermore, Brown had information from Crime Stopper reports 



that Ruaro had been in Ketchikan in 2005, information that was corroborated by the fact 



that the police spoke with Ruaro in late February 2005 about those reports. 



                The State also argues that Ruaro's statements to Trooper Brown when the 



officer asked him about the package were suspicious.  Ruaro denied that he had shipped 



        1   AS 11.71.030(a)(1). 



                                                 - 6 -                                              2364 


----------------------- Page 7-----------------------

the package, even though his name appeared on the package as the shipper.         And even 



though the bill of lading said the package contained a computer, Ruaro told Trooper 



Brown the package contained an iPod and household goods. 



              The State also argues that Ruaro's emotional reactions to minor delays in 



the delivery of his packages were suspicious. 



              The    State  recognizes  that  because   the  Crime  Stoppers   informant   (or 



informants) were anonymous, the veracity of these reports needed to be established by 

each declarant's past reliability or by independent police corroboration.2     But the State 



mostly relies on the Crime Stoppers reports, coupled with the police contact with Ruaro 



in February 2005, to support the conclusion that Ruaro had been living in Ketchikan 



since that time.   The State points out that, to the extent that the magistrate relied on the 



Crime Stoppers reports to establish Ruaro's presence in Ketchikan, that information was 



corroborated both by the prior police contact with Ruaro when they were investigating 



the Crime Stoppers reports and by Kelly's reports of his contact with Ruaro when Ruaro 



retrieved packages at AML. 



              The State indicates that the magistrate only used the Crime Stoppers reports 



for one other purpose.     The State observes   that the magistrate "relied on the Crime 



Stoppers reports only to establish that the type of contraband suspected of being in the 



package    was   cocaine."  The    State  "concedes   that  the  reports  lacked  a  sufficient 



foundation to establish the likely contents of the package."     The State goes on to argue 



that it "was not required to identify the contents [of the package] beyond establishing 



probable cause to believe [that the package contained] contraband. The other evidence 



presented to the magistrate was sufficient for that purpose." 



       2   See Carter v. State, 910 P.2d 619, 623 (Alaska App. 1996). 



                                            - 7 -                                        2364 


----------------------- Page 8-----------------------

                 In his treatise on search and seizure, Professor LaFave observes that courts 



have allowed warrants to generally describe property to be seized when the warrant 



describes     illegal   drugs   such   as  "narcotic    drugs,"    "any    illegal  drugs,"    "marijuana, 



dangerous drugs, stimulant drugs, and hallucinogenics," "controlled substances," and 

"narcotics and dangerous drugs and narcotics paraphernalia."3                   But LaFave goes on to 



observe that "[b]y contrast, a more general reference to items which are contraband in 

nature but without even identifying their type is insufficient."4 



                 It  was    not  unreasonable      for   the  magistrate    to  conclude     that  Ruaro's 



behavior surrounding his receipt of the package was suspicious.  And Ruaro's behavior 



suggested   that   Ruaro   did   not   want   to   reveal   the   contents   of   the   package.   But   we 



conclude that the evidence which the State presented at the search warrant hearing was 



insufficient to establish probable cause that the package contained cocaine. 



                 In reaching this conclusion, we recognize that the magistrate's conclusion 



finding probable cause is entitled to great deference and that we should uphold that 

finding in doubtful or marginal cases.5          But, although Ruaro's behavior could certainly 



be described as suspicious, we fail to see how that suspicious behavior could establish 



probable cause that his package contained cocaine. 



                 The State offers another argument in support of upholding the search.  The 



State points out that the trial court found that "Ruaro offered to open the package while 



[law enforcement officers] were waiting" for the warrant to be issued.   The State argues 



        3    See 2 Wayne R. LaFave,  Search and Seizure,  4.6(b), at 620-21 (4th ed. 2004) 



(footnotes omitted). 



        4   Id.  4.6(b), at 621 (footnote omitted). 



        5   McClelland   v.   State ,   928   P.2d   1224,   1225   (Alaska   App.   1996)   (citing  State   v. 



Conway, 711 P.2d 555, 557 (Alaska App. 1985)). 



                                                   - 8 -                                               2364
 


----------------------- Page 9-----------------------

that this finding indicates that Ruaro agreed to the search and that therefore, even if the 



warrant   was   defective,   the   State   was   authorized   to   conduct   the   search   based   upon 



Ruaro's agreement.        But the State has not established that Ruaro's offer to open the 



package      was   not   based   upon    the   fact  that  the   police   had   obtained    a  warrant. 



Furthermore, as Ruaro points out, an offer only to open the package would not authorize 



the police to conduct the thorough search of items within the package that the police 



conducted in order to find the cocaine.  Consequently, the State's argument that Ruaro 



voluntarily agreed to authorize the thorough search that the police conducted to find the 



cocaine is not supported by the record. 



                Conclusion 



                We conclude that the evidence which the State presented   at the search 



warrant hearing was insufficient to support a finding that Ruaro's package contained 



illegal drugs.  We therefore hold that the magistrate erred in denying Ruaro's motion to 



suppress     the  evidence     the  police   obtained    when    they   served   the   warrant.    It  is 



uncontested that, without this illegally seized evidence, the State presented insufficient 



evidence to support Ruaro's conviction. 



                The judgment of the superior court is REVERSED. 



                                                 - 9 -                                             2364
 


----------------------- Page 10-----------------------

MANNHEIMER, Judge, 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 Ketchikan 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 



                                                 -  10 -                                           2364
 


----------------------- Page 11-----------------------

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 Ketchikan 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: 



                                                -  11 -                                          2364
 


----------------------- Page 12-----------------------

                         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   lacked     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 contraband , 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 



                                                   -  12 -                                             2364
 


----------------------- Page 13-----------------------

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. 



         1   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 ,   749   N.E.2d   170,   725   N.Y.Supp.2d      601   (N.Y.   2001)   (holding   that   the 

description "any other property the possession of which would be considered contraband" is 

impermissibly broad). 



                                                    -  13 -                                                2364 


----------------------- Page 14-----------------------

               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. 



                                            -  14 -                                       2364
 

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