Opinion
Court of Appeals No. A-8898.
November 16, 2005.
Appeal from the District Court, Second Judicial District, Barrow, Michael I. Jeffery, Judge, and Karen R. Hegyi, Magistrate. Trial Court No. 2BA-03-141 CR.
Andrew Mack, Assistant Public Defender, Barrow, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Jill S. Kinsley, Assistant District Attorney, Jeffrey A. O'Bryant, District Attorney, Fairbanks, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Francis Hugo was convicted of importation of alcoholic beverages after the police obtained a warrant and searched a box of alcoholic beverages delivered to her at the Anaktuvuk Pass airport. Hugo argues that the district court did not have probable cause to issue the warrant to search the box. She argues that the court's probable cause finding was based on the hearsay testimony of unidentified and unreliable informants. We agree that some of the hearsay testimony the police offered at the warrant hearing was unreliable. However, the district court placed little, if any, weight on that information. Moreover, even if this unreliable information is excluded from the probable cause analysis, the court had sufficient cause to believe that a crime was being committed, and that evidence of that crime would be found in the box addressed to Hugo, to issue the warrant. We therefore affirm Hugo's conviction.
Facts and proceedings
On August 26, 2002, North Slope Borough Police Sergeant Richard Degenhardt appeared before Barrow Superior Court Judge Michael I. Jeffery to apply for a warrant to search a box Officer Larry Paul had seized the day before at the airport in Anaktuvuk Pass. Sergeant Degenhardt applied for the warrant based on information supplied by Officer Paul.
At the search warrant hearing, Sergeant Degenhardt told Judge Jeffery that Anaktuvuk Pass was a local option community that had banned the sale of alcoholic beverages. He then described the information the police had obtained indicating that Hugo was involved in illegal alcohol sales. On August 23, 2002, the police received a tip from an unidentified informant that Francis Hugo, her brother Darryl Hugo, sister Darlene Hugo, and two other identified individuals were involved in a "sophisticated" bootlegging operation in Anaktuvuk Pass. The informant said these individuals transported alcohol on Warbelow's Air Ventures, Inc., under the name "Doris Hugo." The informant then described the peculiar manner in which the shipments would be retrieved: After the pilot unloaded the shipment, someone would look at the box and, if it had the right name on it, would say "Freedom in America" and make a peace sign. Someone else would retrieve the box and leave the airport. The informant stated that either Francis Hugo or another woman would give the pilot an envelope of cash.
This was not the first information the police had received about a bootlegging operation in Anaktuvuk Pass, or about Francis Hugo's involvement in illegal alcohol sales. Earlier in August, an employee of Warbelow's Air Ventures had reported to police that she had seized a box containing alcoholic beverages that was flown into Anaktuvuk Pass under the name "Dorcas Hugo." In addition, in June the police had obtained a search warrant and had seized a bottle of vodka and $650 in cash from Hugo's residence based on a tip that she was selling vodka for $150 a bottle.
On August 25, 2002, acting on this and other intelligence, Officer Paul and Officer Bud Kirn met a Warbelow's Air Ventures flight at the Anaktuvuk Pass airport. The first box unloaded on the tarmac was a blue Rubbermaid tote box. The box was not addressed to "Doris" or "Dorcas" Hugo, but rather to Francis Hugo. The police observed Hugo approach the box, look at it, and then "nervously" hand the pilot an envelope that appeared to contain cash. Hugo then told her brother, Darryl Hugo, to get the box, and she left in a vehicle. Darryl Hugo looked at the box, but then appeared to depart the airport, leaving the box on the tarmac. Officer Degenhardt testified that this suspicious conduct was inconsistent with individuals receiving a legal shipment. Officers Paul and Kirn stayed at the airport until the plane was getting ready to depart. Officer Paul then retrieved the box from the tarmac. When Officer Paul picked up the box, he felt an uneven motion consistent with the box containing liquid.
After Officer Paul put the box into his patrol car, Darryl Hugo approached him and demanded the box. Paul told him the box belonged to Francis Hugo, and that he seized it in order to apply for a search warrant. Later, Francis Hugo approached and also demanded the box.
At the warrant hearing, Officer Degenhardt told Judge Jeffery that it was not unusual for individuals illegally importing alcoholic beverages into Alaska villages to vary the names on their alcohol shipments. At Judge Jeffery's request, Officer Degenhardt established his basis of knowledge for this statement by describing his substantial training and experience related to investigating bootlegging and drug crimes. Officer Degenhardt also told Judge Jeffery that Officer Paul had twelve years of experience as a tenured police officer with the North Slope Borough.
Judge Jeffery issued the search warrant. Judge Jeffery agreed that Francis and Darryl Hugo's behavior at the airport was inconsistent with the behavior of individuals receiving a legal shipment. He stated that probable cause to issue the warrant was further supported by the seizure earlier that summer of vodka and cash from Hugo's residence. Judge Jeffery noted that the other intelligence supported the warrant, but was not "totally necessary" to his probable cause finding.
After Judge Jeffery issued the warrant, the police searched the box and found eight bottles of RR Canadian Whiskey. Based on this evidence, Hugo was charged with importation of alcoholic beverages into a local option area.
AS 04.11.499 and AS 04.16.200(e)(1).
Hugo filed a motion to suppress this evidence in district court, arguing that Judge Jeffery should not have issued the warrant to search the box because the police relied on information from unidentified informants without first establishing the reliability of that information. Magistrate Karen R. Hegyi denied the motion, concluding that there was enough probable cause to support the warrant without the information provided by the unidentified informants.
After the court denied the suppression motion, Hugo entered a Cooksey plea, preserving her right to appeal the validity of the search warrant. Why we conclude there was probable cause to issue the warrant
Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
When testimony in support of a warrant relies on hearsay information provided to the police by informants, Alaska courts apply the two-part Aguilar-Spinelli test to evaluate the reliability of that information. The warrant application must establish both the informant's basis of knowledge and veracity. The basis of knowledge prong may be satisfied by evidence that the informant had personal knowledge of the information provided, or by information that is sufficiently detailed to support an inference that the informant had personal knowledge. The veracity prong may be satisfied by showing that the informant had provided the police with reliable information in the past or by independent police corroboration of the details of the informant's story.
State v. Jones, 706 P.2d 317, 320-21, 324-25 (Alaska 1985) (citing Spineli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1969)).
Id. at 324.
Id.
Id. at 325.
Only if both prongs are satisfied may the court rely on this information in determining if there is probable cause to issue the search warrant. Probable cause to issue a warrant exists when "reliable information is set forth in sufficient detail to warrant a reasonably prudent [person] in believing that a crime has been or was being committed" and a reasonable belief exists that the items the police seek will be found in the item or premises to be searched. Whether probable cause exists to issue a warrant is a mixed question of law and fact. We uphold a judge's factual findings unless they are clearly erroneous. However, we use our own judgment to determine if probable cause arises from those facts. In evaluating the validity of the warrant, we weigh the information presented to the district court "in a reasonable and common-sense manner," giving great deference to the lower court's decision in doubtful or marginal cases.
Badoino v. State, 785 P.2d 39, 41 (Alaska App. 1990) (quoting Harrelson v. State, 516 P.2d 390, 396 (Alaska 1973)).
McClelland v. State, 928 P.2d 1224, 1225 (Alaska App. 1996); Van Buren v. State, 823 P.2d 1258, 1262 (Alaska App. 1992); Metler v. State, 581 P.2d 669, 672 (Alaska 1978).
Saucier v. State, 869 P.2d 483, 484 (Alaska App. 1994).
Id.
Chandler v. State, 830 P.2d 789, 792 (Alaska App. 1992).
McClelland, 928 P.2d at 1225.
Rosa v. State, 633 P.2d 1027, 1029 (Alaska App. 1981).
When the police seized Hugo's box on August 25th, they mainly acted on a tip they had received from an unidentified informant two days earlier naming Hugo and her brother, Darryl Hugo, as members of a "sophisticated" bootlegging operation. As discussed earlier, the informant told police that Warbelow's Air Ventures transported the alcohol into Anaktuvak Pass under the name "Doris Hugo." After the pilot unloaded the shipment, someone would look at the box and, if it had the right name on it, say "Freedom in America" and make a peace sign. A different person would retrieve the box and leave the airport. The informant specified that Hugo or another woman would hand the pilot an envelope of cash.
Hugo argues that the information provided by this unidentified informant failed the basis of knowledge prong of the Aguilar-Spinelli test because the police provided no details about the informant or about how the informant came by this information. But this informant did not assert in a conclusory manner that Hugo was bootlegging. Rather, the informant identified the names of the individuals and the flight service involved, the name the informant believed would be used on the shipment, and the precise manner in which two individuals would identify and retrieve the box. The informant also specified that Hugo or another woman would hand the pilot an envelope of cash. This information was sufficiently detailed to support an inference that the informant had personal knowledge of the bootlegging operation. Therefore, the information satisfied the basis of knowledge prong of the Aguilar-Spinelli test.
See Jones, 706 P.2d at 324.
Hugo next argues that this tip failed the veracity prong of the Aguilar-Spinelli test. She argues that the police did not corroborate enough details of the tip to establish the trustworthiness of the informant. Hugo bases this claim on the fact that some of the informant's predictions did not come to pass: the package was not shipped to "Doris Hugo"; Hugo did not say "Freedom in America" or make a peace sign after looking at the box; and a second individual did not retrieve the shipment. However, the police corroborated other significant details. As predicted, the shipment arrived on a Warbelow's Air Ventures flight. Two individuals the informant had identified as members of the bootlegging operation — Hugo and her brother Darryl Hugo — met that flight. Hugo looked at the tote addressed to her and gave the pilot an envelope that appeared to contain cash. Hugo directed her brother to retrieve the box, but instead he left it on the tarmac and appeared to leave the airport. Officer Paul eventually picked up the box and felt an uneven motion consistent with the box containing liquid. Taken together, these facts provided sufficient independent police corroboration of the details of the informant's story to satisfy the veracity prong of the Aguilar-Spinelli test. As we have previously stated, the police need not eliminate all risk of a lying informant to establish that informant's credibility under the Aguilar-Spinelli test. Rather, we require that the "probability of a lying or inaccurate informer has been sufficiently reduced by corroborative facts and observations."
See id. at 325.
Elerson v. State, 732 P.2d 192, 194 (Alaska App. 1987) (quoting 1 W. LaFave, Search and Seizure § 3.3(f) at 556-57 (1978)).
At the warrant hearing, the police presented other information tending to show that Hugo illegally imported alcoholic beverages on Warbelow's Air Ventures flights to Anaktuvuk Pass. On August 4, 2002, an employee of Warbelow's Air Ventures reported to police that she had seized eight bottles of whiskey and four bottles of vodka from a tote shipped to "Dorcas Hugo." Hugo argues that this report added nothing to the probable cause analysis because it did not implicate her, but someone who happened to share her last name. But this report must be considered in the context of other information provided at the warrant hearing. As noted earlier, the police had received a reliable tip that Hugo transported alcohol to Anaktuvak Pass under the name "Doris Hugo." Given the similarity of the names "Doris Hugo" and "Dorcas Hugo," Judge Jeffery reasonably could have viewed the Warbelow's Air Ventures employee's report as further corroboration of this illegal scheme, and of Hugo's possible involvement in that scheme.
See Van Buren, 823 P.2d at 1261-62; Linne v. State, 674 P.2d 1345, 1355 (Alaska App. 1983).
Officer Degenhardt also told Judge Jeffery that the police had previously obtained a warrant to search Hugo's home based on a June 2002 tip that she had five (out of an original twelve) bottles of Monarch Vodka for sale for $150 a bottle. When the police executed the warrant, they seized one bottle of vodka and $650 in cash. Judge Jeffery expressly relied on this information in finding probable cause to issue the warrant. Hugo argues that Judge Jeffery erred because one bottle of vodka is more indicative of alcohol possession than importation and sale, and because it is not unusual for people in rural Alaska to keep large amounts of cash. Hugo adds that she was never charged with a crime based on the evidence seized from her home.
But probable cause "does not require an affirmative negation of all possibilities consistent with innocence." Even if Hugo was never charged with a crime based on this evidence, Judge Jeffery could reasonably infer from the informant's tip, and the subsequent seizure of a bottle of vodka and $650 in cash, that Hugo had been illegally selling vodka and that only one bottle remained by the time the police executed the warrant.
Landon v. State, 941 P.2d 186, 192 (Alaska App. 1997) (citations omitted).
Based on this intelligence, the police went to the airport on August 25th. There, they observed Francis and Darryl Hugo meet a Warbelow's Air Ventures flight. The first box off the flight was addressed to Francis Hugo. Hugo looked at the box, and then nervously handed the pilot an envelope that appeared to hold cash. Hugo told her brother to retrieve the box. However, Darryl Hugo did not do so. Instead, he appeared to depart the airport, leaving the box on the tarmac. When Officer Paul eventually retrieved the box he felt an uneven movement consistent with the box containing liquid.
This conduct at the airport corroborated the earlier intelligence the police had received in significant respects. Although the box was shipped to Francis Hugo, not to "Doris" or "Dorcas" Hugo, the police had reason to believe Hugo was selling alcohol based on the August 23rd tip and the June search of her home. Moreover, Officer Degenhardt testified, based on his and Officer Paul's experience, that it was not unusual for individuals bootlegging in Alaska to vary the names on their shipments of alcoholic beverages. Viewed as a whole, the testimony presented at the warrant hearing sufficiently warranted a reasonably prudent person in believing that a crime was being committed and that evidence of that crime would be found in the box addressed to Hugo.
See Badoino, 785 P.2d at 41.
We agree with Hugo that the police presented other information at the warrant hearing that failed the Aguilar-Spinelli test, including a tip received from an unidentified informant the previous November and an undated anonymous note, neither of which implicated Hugo directly. But when that information is excluded from the probable cause analysis, there is still ample probable cause to support the warrant.
Conclusion
The decision of the district court is AFFIRMED.