Appeals court throws out cocaine conviction over illegal search

Posted: Sunday, May 26, 2002

ANCHORAGE (AP) -- The Alaska Court of Appeals has overturned a 1999 cocaine conviction of a Fairbanks man, ruling that the police conducted an illegal search when they checked a FedEx package addressed to Sam W. McGee with a device that can detect minute traces of drugs.

Once they detected the presence of cocaine, police obtained a search warrant and opened the package, finding about 7 ounces of cocaine.

Using the device, called an ''Itemiser,'' is no different from using a drug-sniffing dog, the Appeals Court said.

And the court ruled in 1985 that police need a reasonable suspicion of criminal activity before they can temporarily detain a package so it can be checked by a dog, the court noted.

''The State concedes that, until the police tested McGee's package with the Itemiser, the police did not have reasonable suspicion that McGee's package contained or constituted evidence of criminal activity,'' the court said.

McGee had entered a no contest plea to controlled substance misconduct, but preserved his right to appeal Superior Court Judge Charles R. Penguilly's denial of his motion to suppress the evidence.

That denial, the three Appeals Court judges decided, was wrong, and they reversed Penguilly's judgment.

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