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Moore v. State (5/27/2016) ap-2501

Moore v. State (5/27/2016) ap-2501

                                                                                                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@ akcourts.us  



                                   IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                          



ETHAN  RYAN  MOORE,  

                                                                                                                                                                               

                                                                                                                            Court of Appeals No. A-11397  

                                                                                                                                                                                              

                                                                 Appellant,                                                Trial Court No. 3DI-11-210 CR  



                                                 v.  

                                                                                                                                            O  P  I  N  I  O  N  

                                                                                                                                                                               

STATE  OF  ALASKA,  



                                                                 Appellee.                                                       No. 2501 - May 27, 2016  

                                                                                                                                                                                    



                                 Appeal   from  the   Superior   Court,  Third  Judicial                                                                        District,  

                                                                                                                                                              

                                 Dillingham, Fred Torrisi, Judge.  

                                                                                            



                                 Appearances:                           Laurence                  Blakely,   Mendel                            &   Associates,  

                                                                                                                                                      

                                 Anchorage, under contract  with the Public Defender Agency,  

                                                                                                                                                                

                                 and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  the  

                                                                                                                                                                           

                                 Appellant.  Mary A. Gilson, Assistant Attorney General, Office  

                                                                                                                                                                    

                                 of   Criminal   Appeals,  Anchorage,  and   Craig  W.  Richards,  

                                                                                                                                                            

                                 Attorney General, Juneau, for the Appellee.  

                                                                                                                                       



                                 Before:  Mannheimer, Chief Judge, and Allard, Judge.  

                                                                                                                                                              



                                 Judge MANNHEIMER.  

                                                



                                 On June 9, 2011, acting on                                            several informants' tips, two police officers                                             



stopped Ethan Ryan Moore at the Dillingham airport shortly after he retrieved his two                                                                                                                     



pieces of luggage from baggage claim.                                                           The officers told Moore that they believed he                                                                



was transporting marijuana, and they asked Moore for permission to search his luggage.                                                                                                                               


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

Moore, who was on his way to Togiak, declined to consent to this search.                                                                                                                                     The officers   



then seized both pieces of Moore's luggage, transported them to the Dillingham police                                                                                                                                            



station, and contacted the local magistrate to apply for a search warrant.                                                                                                                                



                                     After hearing the warrant application, the magistrate concluded that there                                                                                                                     



was no probable cause for the search, so he refused to issue the search warrant.                                                                                                                                                 More  



specifically, the magistrate concluded that the officers had failed to provide sufficient                                                                                                                               



                                                                                                                                                                                                         1  

proof of their informants' credibility to satisfy the                                                                                      Aguilar-Spinelli  test.     



                                     When the magistrate issued this ruling, he invited the officers to present  

                                                                                                                                                                                                                            



more information to corroborate their informants.  

                                                                                                                                             



                                     But the officers did not present more information to the magistrate and ask  

                                                                                                                                                                                                                                        



him  to  reconsider  his  decision.                                                            Nor  did  the  officers  acquiesce  in  the  magistrate's  

                                                                                                                                                                                                               



decision and return Moore's luggage to him.  Instead, the officers kept Moore's luggage  

                                                                                                                                                                                                                              



overnight and then, the next morning, they shipped it to the Alaska State Troopers in  

                                                                                                                                                                                                                                            



Anchorage.   After the luggage arrived in Anchorage, it was subjected to sniffing by a  

                                                                                                                                                                                                                                              



drug-detection dog.  The dog alerted to the luggage, and the troopers then applied for a  

                                                                                                                                                                                                                                               



search warrant, this time in front of an Anchorage judge.  The warrant was granted.  

                                                                                                                                                                                                                                             



                                      The ensuing search of Moore's luggage disclosed seven vacuum-sealed  

                                                                                                                                                                                                       



bags of marijuana totaling approximately seven ounces.  Based on the discovery of this  

                                                                                                                                                                                                                                        



marijuana, Moore was charged with, and later convicted of,  fourth-degree controlled  

                                                                                                                                                                                                                      



                                                                2  

substance misconduct.  

                             

                                                                     



          1       Aguilar v. Texas                              , 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964);                                                                                                Spinelli v.   



 United States                       , 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).                                                                                         See State v. Jones                                , 706   

P.2d 317, 322-25 (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).   



         2  

                                                                                                                                                                                                                        

                   AS 11.71.040(a)(3)(F) (possession of four ounces or more of marijuana).  



                                                                                                                   - 2 -                                                                                                              2501

 


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

                                                                                                                         

                    In this appeal, Moore argues that, after the Dillingham magistrate refused  



                                                                                                                         

to issue the search warrant, it was illegal for the Dillingham officers to retain his luggage  



                                                                                                                  

overnight and then ship it  to  Anchorage - and that all of the ensuing investigative  



                                                                                                                               

efforts (the dog sniff and the second search warrant  application) were tainted by this  



               

illegality.  



                                                                                                                                

                    For the reasons explained in this opinion, we agree with Moore, and we  



                                                   

therefore reverse his conviction.  



                                                                                                          

          TheState's contention that the Dillingham officers needed only reasonable  

                                                                                                          

          suspicion to hold Moore's luggage overnight and then ship it to Anchorage  

                                                 

         for further investigative inspection  



                                                                                                                    

                    Moore  does  not  contest  that  the  Dillingham  officers  had  reasonable  



                                                                                                                               

suspicion to believe that he was carrying marijuana for commercial purposes - and that  



                                                                                                                            

the officers therefore had the authority to temporarily seize his luggage so that they might  



                                                                                                                             

apply for a search warrant.  See Pooley v. State, 705 P.2d 1293, 1307 (Alaska App.  



                                                                                                            

1985); LeMense v. State, 754 P.2d 268, 272-73 (Alaska App. 1988).  



                                                                                                                              

                    But Moore argues that the officers exceeded their authority when they  



                                                                                                                  

retained his luggage overnight and then shipped it to Anchorage for further investigative  



                                                                                                                             

efforts.   The State, in turn, responds that the officers were simply pursuing the most  



                                                                                                                             

prompt investigative efforts that were available to them under the circumstances, since  



                                                                          

there were no drug-sniffing dogs in Dillingham.  



                                                                                                                                

                    To resolve these arguments, we must examine and more clearly define the  



                                                                                                                      

scope  of  police  authority  to  conduct  temporary  investigative  seizures  of  travelers'  



                                                              

luggage based on reasonable suspicion.  



                                                               - 3 -                                                          2501

 


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

                                                                                                                           

                     The United  States Supreme Court discussed the limits that the Fourth  



                                                                                                                                   

Amendment places on temporary investigative detentions of luggage in  United States v.  



                                                                                                                                

Place, 462 U.S. 696, 708-710; 103 S.Ct. 2637, 2645-46; 77 L.Ed.2d 110 (1983).  



                                                                                                                       

                     In Place, the Supreme Court firmly rejected the government's argument  



                                                                                                                                 

that  temporary investigative seizures of travelers' luggage could be more intrusive -  



                                                                                                                                      

i.e., of greater scope and duration - than investigative seizures of travelers themselves:  



                       

                                                                                                              

                     The premise of the Government's argument is that seizures of  

                                                                                                            

                     property  are  generally  less  intrusive  than  seizures  of  the  

                                                                                                               

                     person.   While true in some circumstances,  that premise is  

                                                                                                             

                     faulty  on  the  facts  ...  in  this  case.                The  precise  type  of  

                                                                                                     

                     detention  we  confront  here  is  seizure  of  personal luggage  

                                                                                                     

                     from the immediate possession of [a] suspect for the purpose  

                                                                                                                  

                     of    arranging   exposure              to    a    narcotics        detection        dog.  

                                                                                                            

                     Particularly in the case of detention  of luggage within the  

                                                                                                     

                     traveler's immediate possession, the police conduct intrudes  

                                                                                                              

                     on both the suspect's possessory interest in his luggage as  

                                                                                                                  

                     well as  his liberty interest in proceeding with his itinerary.  

                                                                                                           

                     The person whose luggage is detained is technically still free  

                                                                                                   

                     to continue his travels or carry out other personal activities  

                                                                                                               

                     pending release  of the luggage.                     ...   Nevertheless,  such a  

                                                                                                              

                     seizure  can  effectively  restrain  the  person[,]  since  he  is  

                                                                                                              

                     subjected  to  the  possible  disruption  of  his  travel plans  in  

                                                                                                       

                     order to remain with his luggage or to arrange for its return.  

                                                                                                   

                     Therefore, when the police seize luggage from the suspect's  

                                                                                              

                     custody, we think the limitations applicable to investigative  

                                                                                                        

                     detentions of the person should define the permissible scope  

                                                                                                            

                     of an investigative detention of the person's luggage on less  

                                                      

                     than probable cause.  



                                                                         

Place, 462 U.S. at 708-09, 103 S.Ct. at 2645.  



                                                                                                                              

                     Although  the  Supreme  Court  "decline[d]  to  adopt  any  outside  time  



                                                                                                                         

limitation for a permissible [investigative] stop",  the Court noted that it had  "never  



                                                               - 4 -                                                          2501
 


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

                                                                                                                         

approved [an investigative] seizure of the person for the prolonged 90-minute period"  



                                                                                                                                 

that was presented in Place - and the Court then ruled that this 90-minute detention of  



                                                                                                                               

Place's luggage violated his Fourth Amendment rights.  Id. , 462 U.S. at 709-710, 103  



                       

S.Ct. at 2646.  



                                                                                                                                 

                     This Court first addressed the permitted scope of investigative seizures of  



                                                                                                                               

luggage  in  Peschel  v.  State,  770  P.2d  1144  (Alaska  App.  1989).                                   In  Peschel,  we  



                                                                                                                        

concluded that the reasonableness of the investigative seizure - its scope and duration  



                                                                           

- should be evaluated using a multi-factor test:  



                                          

          *		  the length of the detention;  



                                                                                                                         

          *		  whether the traveler was forced to choose between interrupting their journey  



                                                                                                                             

               (to  remain  with  their  luggage)  or  continuing  their  journey  without  their  



               luggage;  



                                                                                                                              

          *		  whether the police gave the traveler an adequate explanation of where they  



                                                                                                      

               were taking the luggage, and when and how it would be returned;  



                                                                                                                                

          *		  whether the police acted diligently in  pursuing their investigation during the  



                                               

               period of detention; and  



                                                                                                                    

          *		  whether the police used "the least intrusive means possible" when conducting  



                        

               their investigation.  



                                                

Peschel, 770 P.2d at 1147-48.  



                                                                                                                                

                    In Moore's case, the first  two factors clearly favor his position that the  



                                                                                                                            

detention of his luggage was unlawful.  The police kept his luggage for close to 24 hours  



                                                                                                                          

- substantially longer than the 90 minutes that was disapproved in Place.  And Moore  



                                                                                                                          

was forced to continue traveling to his destination (Togiak) without his luggage.  



                                                                                                              

                     The State, for its part, focuses on the other three factors.  



                                                                                                                               

                    When the Dillingham officers spoke to Moore at the airport, they told him  



                                                                                                                                   

that they were going to send his luggage to Anchorage so that it could be subjected to a  



                                                               - 5 -		                                                       2501
 


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

                                                                                                                         

drug-sniffing dog.  The officers also informed Moore that they could not ship his luggage  



                                                   

to Anchorage until the next day.  



                                                                                                                                  

                    On this issue, we note that the officers gave Moore no estimate of when or  



                                                                                                                         

how his luggage might be returned to him.  They merely assured Moore that his luggage  



                                                

would ultimately be returned.  



                                                                                                                    

                    But  more  importantly,  even  though  the  police  may  have  accurately  



                                                                                                                                

informed Moore that they were going to ship his luggage to Anchorage,  and that he  



                                                                                                                           

would be deprived of his luggage at least until the next day,  the fact that the police  



                                                                                                                               

communicated this information to Moore could not turn an unconstitutional seizure into  



                                                                                                                       

a lawful one.   In other words, the police could not obtain a license to violate Moore's  



                                                                                                                               

Fourth Amendment rights merely by informing Moore that they intended to do so.  



                                                                                                                               

                    We turn,  then,  to the diligence of police investigation,  and whether  the  



                                                                                                                               

police used the least intrusive means possible to pursue their investigation while they had  



                                                                                                                            

Moore's  luggage  in  their  possession.                     Regarding these  two  factors,  the  State  relies  



                                                                                                                               

heavily on the fact that there were no drug-sniffing dogs in Dillingham, and  that  the  



                                                                                                                    

closest  drug detection  dogs  were  in  Anchorage.                            The  State  argues  that,  practically  



                                                                                                                             

speaking,  there  was  no  way  for  the  police  to  pursue  their  investigation  other  than  



                                                                                                                                  

detaining Moore's luggage for nearly a day, and shipping it hundreds of miles away.  



                                                                                                                                

                    But in  Chandler v. State, 830 P.2d 789, 791-92 (Alaska App. 1992), we  



                                                                                                                 

rejected  the  argument  that  the  duration  and  scope  of  a  "temporary"  investigative  



                                                                                                                 

detention  of  luggage  could  be  expanded  to  accommodate  whatever  investigative  



                                                                                   

measures might be needed under the circumstances.  



                                                                                                                  

                    In  Chandler,  based  on  reasonable  suspicion,  the  police  transported  



                                                                                                                         

Chandler's bag from the Ketchikan airport to the police  station,  where the officers  



                                                                                                                           

prepared the paperwork to obtain  a  search warrant.   The search warrant was issued  



                                                                                                                            

slightly more than 90 minutes after the police seized Chandler's bag.  Id.  at 791.  



                                                               - 6 -                                                         2501
 


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

                                                                                                                     

                     We concluded that this 90-minute detention of the bag violated Chandler's  



                                                                                                                                

rights  under  the  Fourth  Amendment.                        Id.  at  792.        In  reaching this  conclusion,  we  



                                                                                                                     

explained that  even  though there was no strict time limit for investigative detentions,  



                                                                                                                                 

"[a]t some point, ... the length of [the] detention alone" will preclude any claim that the  



                                                                                                                  

police  seizure  of  the  luggage  detention  constituted  only  a  temporary  investigative  



                                                                                                                        

detention (i.e., the kind of limited detention that can be justified by reasonable suspicion  



                                              

rather than probable cause).  Ibid.  



                                                                                                                         

                     In Chandler, we did not suggest that the police displayed a lack of diligence  



                                                                                                                      

in applying for the search warrant.   Rather,  we  held that the length of the detention,  



                                                                                                                            

coupled with the fact that the police removed the defendant's bag from the airport, meant  



                                                                                                                                 

that  the  seizure  and  detention  of  the  bag  could  no  longer  be  justified  merely  by  



                  

reasonable suspicion:  



                       

                                                                                                 

                               Chandler's bag was ... seized directly from Chandler's  

                                                                                                          

                    possession.  The bag was not merely immobilized at the point  

                                                                                                     

                     of seizure.        Rather, it was transported a significant distance  

                                                                                                        

                     from the airport to the Ketchikan police station.  The police  

                                                                                                   

                     mitigated the intrusiveness of this 90-plus minute detention  

                                                                                                          

                    by  telling Chandler  where  they  were  taking his  bag,  their  

                                                                                                               

                    purpose in taking it,  the approximate length of time that it  

                                                                                                         

                     would  be held,  and how Chandler could reclaim it.                                 [But  

                                                                                                              

                     though]  such  measures  might  make  the  difference  in  a  

                                                                                                            

                    borderline case, they do not convert the kind of seizure that  

                                                                                                              

                     occurred here into a brief, minimally intrusive detention of  

                                                                                                     

                    property.   We conclude that the warrantless seizure required  

                                    

                    probable cause.  



                                            

Chandler, 830 P.2d at 792.  



                                                               - 7 -                                                          2501

 


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

                         We reach the same conclusion in Moore's case.                                               It was unlawful for the               



Dillingham   police   to   hold   Moore's   luggage   overnight   and   then   ship   the   luggage   to  



Anchorage for further investigative measures, based merely on reasonable suspicion.                                                                            



                                                                                                                                                 

             The State's argument that the Dillingham officers had probable cause to  

                                                                                                                                             

             believe   that   Moore's   luggage   contained   marijuana                                                   intended   for  

                                                                                                                                               

             commercial purposes, and thus the officers were authorized to hold the  

                                                                                                                               

             luggage overnight and then ship it to Anchorage for the dog sniff  



                                                                                                                                                

                         The State argues that even if the actions of the Dillingham police exceeded  



                                                                                                                                                           

the  type  of  temporary  investigative  detention  that  would  be  authorized  based  on  



                                                                                                                                             

reasonable suspicion,  their actions were nevertheless justified because the Dillingham  



                                                                                                                                               

officers actually had probable cause to believe (as opposed to mere reasonable suspicion)  



                                                                                                                           

that Moore was transporting marijuana for commercial purposes.  



                                                                                                                                                   

                         When the police have probable cause to believe that an article of luggage  



                                                                                                                                             

contains evidence of a crime, and when there are no exigent circumstances authorizing  



                                                                                                                                                           

an immediate warrantless search, the police are authorized to seize the luggage (but not  



                                                                                                                                                    

search it) and to carry the luggage away for safe-keeping while they apply for a search  



                3  

warrant.     



                         But the State's argument in Moore's case goes considerably beyond this  

                                                                                                                                                          



proposition of law.  The State is effectively arguing that if the police have probable cause  

                                                                                                                                                       



to believe that an article of luggage contains evidence of a crime, the police may seize  

                                                                                                                                                        



the luggage,  hold it for as long as is reasonably necessary to complete  any  desired  

                                                                                                                                                   



additional investigation  or  testing,  and  even  ship  the  luggage  hundreds  of  miles  to  

                                                                                                                                                            



      3      United States v. Chadwick                      , 433 U.S.        1, 13; 97 S.Ct.           2476, 2484-85;53                  L.Ed.2d 538,  



551 (1977);           Metcalfe v. State              , 593 P.2d 638, 640 (Alaska 1979).                             



                                                                            - 8 -                                                                        2501
 


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

accomplish   this   additional   investigation   or   testing   -   all   without   seeking   a   judicial  



warrant until the additional investigation is done.                                                                                                                                                                            



                                                             We are aware of no legal authority to support this argument.                                                                                                                                                                        



                                                             There are two additionalproblems with the State's probable cause argument                                                                                                                                                                                                                           



in Moore's case.                                                               



                                                             First, the Dillingham police                                                                                                  did  promptly seek a search warrant - and it                                                                                                                                                              



was refused.                                                The State cites no authority for the proposition that the police could ignore                                                                                                                                                                                                                                     



this adverse judicial ruling, continue to hold the luggage, ship it away to Anchorage for                                                                                                                                                                                                                                                                                                    



further testing, and then apply for a search warrant again in front of a different judge.                                                                                                                                                                                                                                                                                                                    



Yet this is essentially what the State is arguing in Moore's case.                                                                                                                                                                                                                                 



                                                             The State contends that the issue currently before this Court is whether to                                                                                                                                                                                                                                                          



affirm   the   trial judge's                                                                                 ruling that                                          the   police   had   probable   cause   when   they   seized  



Moore's luggage.                                                                But even if the Dillingham police had probable cause to                                                                                                                                                                                                   seize  Moore's  



luggage, the officers were only authorized to hold the luggage long enough to secure a                                                                                                                                                                                                                                                                                                              



 search warrant.                                                        Thus, the question presented here is whether the Dillingham magistrate                                                                                                                                                                                                              



 should have issued the requested search warrant.                                                                                                                                                                                 



                                                             In litigating this question, the State is not allowed                                                                                                                                                                                 to rely on information                            

                                                                                                                                                4  And the State acknowledges that the evidence obtained  

that was adduced after-the-fact.                                                                                                                                                                                                                                                                                                                                    



in Anchorage (the "alert" of the drug-detection dog) should not be considered when  

                                                                                                                                                                                                                                                                                                                                                                                 



assessing whether the Dillingham police had probable cause when they applied for the  

                                                                                                                                                                                                                                                                                                                                                                                           



 search warrant.  But the State nevertheless relies on police testimony that was adduced  

                                                                                                                                                                                                                                                                                                                                                                    



later, at the evidentiary hearing on Moore's motion to suppress.  

                                                                                                                                                                                                                                                                                                    



               4               State v. Jones                                                , 706 P.2d 317, 326 (Alaska 1985);                                                                                                                       State v. White                                                 , 707 P.2d 271, 277                                                  



(Alaska App. 1985);                                                                     United States v. Anderson                                                                                            , 453 F.2d 174, 177 (9th Cir. 1971).                                                                                                                          



                                                                                                                                                                                            - 9 -                                                                                                                                                                                        2501
 


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

                                 This   evidentiary   hearing   testimony   offered   a   fuller   description   of   the  



information that was known to the Dillingham police when they initially applied for the                                                                                                                        



search warrant.                           But to the                     extent that this testimony supplemented the information                                                         



presented to the Dillingham magistrate, it is irrelevant to our review of the magistrate's                                                                                               



decision - because the law requires that all of the information supporting the issuance                                                                                                           



of a search warrant be contained "within the four corners" of the affidavits or testimony                                                                                                      

presented in the search warrant application.                                                                 5  



                                 Turning to the contents of the Dillingham search warrant application, the  

                                                                                                                                                                                                               



warrant application was primarily based on information obtained from three informants.  

                                                                                                                                                                                                                         



Adhering to the Aguilar-Spinelli  test, the Dillingham magistrate questioned the police  

                                                                                                                                                                                                        



about how these three informants obtained their information, why these informants chose  

                                                                                                                                                                                                         



to share this information with police, and whether these informants had proved reliable  

                                                                                                                                                                                                     



in the past.  

                             



                                 Two of the informants were anonymous; that is, the police did not disclose  

                                                                                                                                                                                                    



their identities to the magistrate.  

                                                                                  



                                 When the magistrate asked the officer how the first anonymous informant  

                                                                                                                                                                                               



obtained his information, the officer replied, "I don't have any answers for that."  When  

                                                                                                                                                                                                        



the magistrate asked the officer if he knew why the first anonymous informant had  

                                                                                                                                                                                                             



wanted to share his information with the police, the officer replied, "No, I do not."  And  

                                                                                                                                                                                                            



when the magistrate asked the officer if this first anonymous informant was from the  

                                                                                                                                                                                                               



criminal milieu, the officer replied that, as far as he knew, the informant had no history  

                                                                                                                                                                                                      



of drug activity, but the informant's "significant other" did.  

                                                                                                                                                     



        5        State v. White                  , 707 P.2d 271, 277 (Alaska App. 1985);                                                      United Statesv.Anderson                                      ,453   



F.2d 174, 177 (9th Cir. 1971).                                             



                                                                                                     -  10 -                                                                                                 2501
 


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

                                                                          With   regard   to   the   second   confidential informant,                                                                                                                                                                                                                                       the   officer   told   the  



 magistrate   that   he   had   "the   impression"   that   this   second   informant   had   personally  



 witnessed one or more marijuana sales by Moore.                                                                                                                                                                                                                                     But when the magistrate asked the                                                                                                                                                   



 officer if this second anonymous informant had given the police any idea how recently                                                                                                                                                                                                                                                                                                                                                         



 these sales were supposed to have occurred, the officer replied, "No, he did not."                                                                                                                                                                                                                                                                                                                                                                              The  



 officer also conceded that "[t]he reliability of this person has not been established."                                                                                                                                                                                                                                                                                                                                                                                    



                                                                           The third informant was identified by name.                                                                                                                                                                                                    She had no direct information                                                                      



 about Moore, but she claimed to know the drug-transportation methods used by another                                                                                                                                                                                                                                                                                                                                                             



 man   who was alleged to be Moore's accomplice.                                                                                                                                                                                                                                       When the magistrate began asking                                                                                                                                



 more questions about this third informant, the officer volunteered that this informant had                                                                                                                                                                                                                                                                                                                                                                            



 given her information to the police when she was "contact[ed] for alcohol importation"                                                                                                                                                                                                                                                                                                                               



 approximately nine months earlier.                                                                                                                                                                The magistrate asked the officer,                                                                                                                                                                     "So [this third                                        



 informant] was being accused of importing alcohol?                                                                                                                                                                                                                                               ...    Why would she be providing                                                                                                    



 that kind of information to you, do you know?"                                                                                                                                                                                                                         The officer replied that "she provided                                                                                                                             



  [the investigating officer] with that information ... to [distract] him from his contact with                                                                                                                                                                                                                                                                                                                                                                    



 her."   The magistrate asked, "[So] she was trying to point the finger at somebody else,                                                                                                                                                                                                                                                                                                                                                                         



 to take the focus off of her - is that kind of what you're thinking?"                                                                                                                                                                                                                                                                                                                           And the officer                                     



 answered, "Yes - or to try to, you know, sort of make a deal."                                                                                                                                                                                                                                                                                                     



                                                                          After hearing this testimony, the magistrate concluded that the police had                                                                                                                                                                                                                                                                                                                   



 failed to adequately establish the credibility or reliability of their informants under the                                                                                                                                                                                                                                                                                                                                                                             



Aguilar-Spinelli  test. Based on this record, we can not say that the magistrate's decision                                                                                                                                                                                                                                                                                                                                                    

 constituted an abuse of discretion.                                                                                                                                                          6  

                                                                                                                                                                                                       



                   6                  We   could not                                                              find any prior                                                                   case   where   this   Court   was   called upon to                                                                                                                                                                                        review a   



 magistrate's decision                                                                                          not to issue                                                     a search warrant.                                                                          But in cases raising the related issue of                                                                                                                                                           

 whether a magistrate was correct in                                                                                                                                                        issuing  a search warrant,                                                                                                                    this Court has employed an                                                                                                           

                                                                                                                                                                                                                                                                                                                                                                                                                        (continued...)  



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

                                               We therefore hold that the police violated Moore's rights under the Fourth                                                                                                                                                                



Amendment when they continued to hold his luggage after the magistrate denied their                                                                                                                                                                                                             



application for a search warrant.                                                                                        All evidence derived from the later search of that                                                                                                                       



luggage must be suppressed.                                                                           



                        Conclusion  



                                               The judgement of the superior court is REVERSED.                                                                                                                                           



            6           (...continued)  



"abuse of discretion" standard of review.  See McClelland v. State , 928 P.2d 1224, 1225  

                                                                                                                                                                                                                                                                                              

(Alaska App. 1996); State v. Bianchi, 761 P.2d 127, 129-30 (Alaska App. 1988).  

                                                                                                                                                                                                                                                                              



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