Opinion
Court of Appeals No. A-11285 No. 6158
03-18-2015
DAYNA SARA LEE DEMIENTIEFF, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ben Wohlfeil, Assistant District Attorney, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 4BE-09-1178 CR
MEMORANDUM OPINION
Appeal from the District Court, Fourth Judicial District, Bethel, Dennis P. Cummings and Ethan Windahl, Judges. Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ben Wohlfeil, Assistant District Attorney, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Kossler, Judges. Judge MANNHEIMER.
Dayna Demientieff pleaded guilty to misdemeanor bootlegging, AS 04.11.499(a), for sending a package of alcoholic beverages via air freight to the dry village of Kipnuk. Demientieff's plea was a "Cooksey" plea: she reserved the right to argue on appeal that this air freight package was seized illegally by the state troopers when a trooper removed the package from the Bethel airport and took it to his office pending further investigation.
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
This purported Cooksey plea was invalid. When the State and a defendant agree to resolve a criminal case with a Cooksey plea, the issue preserved for appeal must be dispositive of the litigation. But in Demientieff's case, the issue of whether the trooper acted illegally when he took the package from the airport is not necessarily dispositive of whether the district court should have suppressed all evidence of the seven bottles of whiskey that were inside the package.
We nevertheless exercise our discretion to treat Demientieff's appeal as an untimely petition for review of the district court's order denying Demientieff's suppression motion. We grant this petition for review, and — reaching the merits of Demientieff's claim — we affirm the district court's ruling that the seizure of the package was lawful.
Underlying facts
This case involves the seizure and ensuing search of a package that was being shipped by air from Bethel to the village of Kipnuk.
The package was a nearly cube-shaped box, with sides measuring about 10 to 12 inches in length. It was addressed to a woman named Tomilyn Fox, and the shipping ticket for the package said that it contained "clothes". But given its purported contents, the package weighed a lot for its size — 18 pounds.
The village of Kipnuk is a dry community, and the heaviness of the package made an airline employee suspicious that the package might contain bootleg alcohol. The employee contacted the Bethel trooper detachment, and a trooper came out to the airport to inspect the package. He, too, thought that the box "was [so] heavy [that] it was kind of hard ... to believe that it [contained] just clothes."
The trooper seized the box and took it to his office, which was about two miles away. When the trooper got back to his office, he began trying to contact the addressee, Tomilyn Fox. Within about two hours, he succeeded in reaching Fox by telephone.
When the trooper asked Fox about the package, she seemed surprised. She initially told the trooper that she was not expecting a package, and she disclaimed any knowledge of the package that the trooper had in his office.
But later during the phone call, Fox changed her story. She acknowledged that her cousin, Dayna Demientieff, had shipped the package to her. The trooper then asked Fox if she would permit him to open the package and search it, and Fox said yes.
When the trooper opened the package, he found that it contained clothing — but it also contained seven bottles of whiskey, wrapped inside this clothing.
Based on this discovery, Demientieff was charged with misdemeanor bootlegging — i.e., violating AS 04.11.499(a) by importing distilled spirits, in a quantity less than 10½ liters, into a dry community. See AS 04.16.200(e)(1).
After Demientieff was charged with bootlegging, her attorney asked the court to suppress the bottles of whiskey. The defense attorney argued (1) that the trooper had engaged in a seizure of the package when he removed it from the airport; (2) that this seizure was illegal because the trooper lacked reasonable suspicion that the package contained contraband; and (3) that Tomilyn Fox did not have authority to consent to a search of the package.
The district court agreed that a seizure had occurred, but the court ruled that the facts known to the trooper gave him reasonable suspicion to seize the package.
The district court also ruled that Fox had the authority to consent to a police search of a package addressed to her, and that Fox knowingly and validly consented to have the trooper open and search the package in this case. Thus, the court ruled, the trooper's search of the package was justified under the consent exception to the warrant requirement.
Following the denial of her suppression motion, Demientieff entered a Cooksey plea to one count of bootlegging. According to the written Cooksey plea agreement, the parties agreed that the following two issues were dispositive of Demientieff's case: (1) Did the trooper have reasonable suspicion to seize the package? and (2) Did Tomilyn Fox have the authority (or at least the apparent authority) to consent to a search of the package?
Why Demientieff's Cooksey plea is invalid
When a defendant enters a Cooksey plea and reserves the right to raise an issue on appeal, that issue must be dispositive of the litigation — which means that "resolution of the issue in the defendant's favor would either legally preclude the government from pursuing the prosecution or would leave the government without sufficient evidence to survive a motion for judgement of acquittal at the conclusion of the government's case." Miles v. Anchorage, 825 P.2d 904, 906 (Alaska App. 1992).
Of the two issues that Demientieff preserved for appeal when she entered her Cooksey plea, the second issue would clearly be dispositive of Demientieff's case: the evidence of the bottles of whiskey would have to be suppressed if the trooper could not validly rely on Fox's consent to the search of the package.
But Demientieff has not briefed this issue on appeal. Instead, Demientieff's briefs to this Court discuss only the first issue: whether, at the time the trooper seized the package and took it to his office, the trooper had a reasonable suspicion that the package contained contraband.
This first issue is not necessarily dispositive of whether the evidence should be suppressed. Even assuming that the trooper lacked reasonable suspicion to justify the seizure of the package, this unlawful seizure would only require suppression of the contents of the package if Tomilyn Fox's decision to let the trooper open and search the package was somehow the fruit of the trooper's seizure of the package.
The fact that the trooper contacted Fox by telephone after he brought the package to his office — i.e., the fact that the one event followed the other — does not answer the question of whether Fox's consent to the search would be tainted (for purposes of the exclusionary rule) if the trooper's seizure of the package was unlawful. The exclusionary rule is triggered only if there is a sufficient "connection between the right violated and the evidence to be excluded". Thus, the dispositive issue here is whether there was a sufficient nexus between the trooper's seizure of the package from the airport and Fox's later decision to let the trooper open and search the package — in other words, whether Fox's consent should be attributed to the trooper's earlier act of seizing the package.
McBath v. State, 108 P.3d 241, 248 (Alaska App. 2005).
Halberg v. State, 903 P.2d 1090, 1097 (Alaska App. 1995).
Here, it is not clear how the physical location of the package affected the trooper's motivation to contact Fox, or how the trooper's physical possession of the package affected Fox's willingness to consent to a search. Even if the trooper had left the package at the airport, the trooper still could have contacted Fox by telephone, and he presumably would have engaged in the same general conversation with her — leading to the same consent search.
At the evidentiary hearing, the trooper testified that, during the time the box was in his custody, he did nothing with the box, or to it, until he obtained Fox's consent for the search. More specifically, the trooper testified that he didn't pick the box up and shake it, he didn't "grope it" with his fingers, he didn't put it through an x-ray, and he didn't have a dog sniff it.
It is, of course, conceivable that the trooper's seizure of the package did affect Fox's decision to allow the trooper to search the package. For example, it is possible that the flight to Kipnuk was about to take off when the trooper seized the package — so that, absent the trooper's seizure of the package, the package would have been in Fox's physical possession before the trooper ever succeeded in contacting her (thus making it less likely that Fox would consent to have the trooper search it).
But it is unclear from the record whether, or just how much, the trooper's actions actually obstructed or delayed the shipment of the package. When the suppression motion was litigated in the district court, the parties did not perceive that suppression would be required only if there was a sufficient nexus between the trooper's seizure of the package and Fox's consent to the search. So the parties did not present any evidence on this point, and the district court made no findings on this issue.
(The trooper was the only witness at the evidentiary hearing. He testified that the package had been brought to the air carrier "the day before", and that the package was scheduled to be flown to Kipnuk "that day". But no one asked the trooper if the package was scheduled to be shipped within the next two hours — which is approximately how long it took the trooper to locate Tomilyn Fox and obtain her permission to search the package.)
What all of this means is that Demientieff's Cooksey plea is invalid. The issue that the parties litigated in the trial court and preserved for appeal — i.e., whether the trooper had reasonable suspicion to seize the package from the airport — is not dispositive of Demientieff's claim that the evidence of the whiskey should be suppressed.
The issue that would be dispositive of Demientieff's claim — i.e., whether Fox's consent to the search should be attributed to the trooper's seizure of the package (assuming that the seizure was unlawful) — was not identified or litigated in the trial court. Because of this, (1) this issue is not preserved for appeal and, in any event, (2) the trial court record does not contain sufficient evidence to enable us to decide whether Demientieff would be entitled to suppression of the whiskey, even if she succeeded in convincing us that the trooper's seizure of the package was unlawful.
Nevertheless, in the interest of judicial economy, we choose to address the legality of the seizure, and we uphold the district court's ruling that the seizure was lawful
Even when a Cooksey plea is flawed, this Court retains the discretion to treat an improper appeal as a petition for review, and to reach the merits of the non-dispositive issue that the parties have briefed. In Demientieff's case, the record contains the facts needed to evaluate the legality of the trooper's seizure of the package from the airport. So, in the interest of judicial economy, we have decided to address and resolve that issue.
Clark v. Anchorage, 2 P.3d 639, 643 (Alaska App. 2000).
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(Compare Deweese v. State, 215 P.3d 1087, 1089-1090 (Alaska App. 2009), where this Court declined to adjudicate the issue raised in a flawed Cooksey plea where the record showed that issues of material fact remained unresolved.)
The State concedes that the trooper's act of removing the package from the airport and taking it to his office constituted a seizure, and the State further concedes that this seizure had to be supported by reasonable suspicion. Thus, the remaining question is whether the facts known to the trooper gave him "reasonable suspicion" to believe that the package contained contraband.
In her brief to this Court, Demientieff contends that the only suspicious aspect of the situation was the fact that the package was labeled "clothes" and that it weighed 18 pounds — in other words, it was unexpectedly heavy for its size, if it in fact contained only clothing.
Demientieff argues that this circumstance, standing alone, was not enough to "distinguish the detained package from the general body of shipments." McGee v. State, 70 P.3d 429, 433 (Alaska App. 2003) (Judge Mannheimer, concurring).
But the trial court disagreed with this assessment. At the conclusion of the evidentiary hearing, the court declared that "any reasonable person" would be suspicious if they "pick[ed] this box up and were told there was nothing in [there] but clothing, and it weighed 18 pounds."
The court also noted the unusual labeling that accompanied the package. A sticker on the package indicated that it was to be shipped to Kipnuk. And the accompanying bill of lading stated that the package contained "clothing for Tomilyn Fox". But the spaces on the bill of lading for the recipient's name, address, and phone number were left blank.
Moreover, the trooper testified at the evidentiary hearing that Bethel was a shipping hub for the surrounding villages, and that it was common to find alcohol being shipped to these villages through the Bethel airport.
Given this combination of factors, we conclude that the trooper had reasonable suspicion to temporarily seize the package (i.e., temporarily remove it from the flow of commerce) so that he could locate and contact Tomilyn Fox to further investigate whether the package contained contraband.
Conclusion
The district court's denial of Demientieff's motion to suppress is AFFIRMED.