Kralick v. State
| Decision Date | 16 July 1982 |
| Docket Number | No. 5618,5618 |
| Citation | 647 P.2d 1120 |
| Parties | John T. KRALICK, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Court of Appeals |
Robert Merle Cowan, Kenai, for appellant.
Rhonda F. Butterfield, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.
Before BRYNER, C. J., and COATS and SINGLETON, JJ.
John T. Kralick was found in possession of 108 Thai sticks (marijuana) and was charged with possession of depressant, hallucinogenic, or stimulant drugs for the purpose of sale or disposal to another person. AS 17.12.010 and 17.12.110(b). Kralick was tried before Superior Court Judge James A. Hanson and was found guilty. Judge Hanson deferred imposition of sentence for five years. 1 Kralick now appeals to this court challenging the constitutionality of the search which uncovered the drugs.
On the afternoon of February 16, 1980, Kenai Police Officer Randall E. Cordle received a phone call from someone who stated that he had information about a drug transaction that was to take place the following day. The caller stated that he chose to remain anonymous for fear of losing his job and out of concern for his family. He said that on February 17 an individual was going to fly from Kenai to Anchorage on Alaska Aeronautical Industries (AAI) in order to purchase approximately $2,300 worth of drugs. 2 He said that the individual would be dressed like an oil worker, would be carrying a duffle bag containing dirty clothes, and would be carrying the drugs in the bag upon his return from Anchorage. The informant also stated that the duffle bag would have petroleum stains on it. Furthermore, the informant reported that the individual would try to leave Kenai as close to 10:00 a. m. as possible and that he would meet a man and woman at the airport in Anchorage. The informant did not identify any of the individuals involved by name, and he did not state whether the individual leaving from Kenai was male or female.
While speaking with Officer Cordle, the informant stated only that he acquired the information by personally overhearing a conversation. He did not say where or when he overheard the conversation, but Officer Cordle was under the impression that the informant had acquired the information fairly recently.
Acting upon this information Officer Cordle and Investigators Kallus and Malotte went to the Kenai airport on the morning of February 17. At approximately 11:40 a. m. they saw a white male adult enter the airport carrying a brown duffle bag. Officer Cordle stated that "both ends of the bag drooped as if it could have contained clothing." Officer Cordle further stated that he observed what appeared to be petroleum stains on the bag and that upon getting close to the bag he could smell oil.
A check with Alaska Aeronautical Industries (AAI) indicated that the individual had purchased a round trip ticket to Anchorage and was scheduled to return to Kenai on the 3:00 p. m. flight. The individual boarded the noon flight to Anchorage and he was followed by Investigator Kallus. Investigator Kallus testified that he observed the individual pick up his duffle bag directly from the baggage compartment of the plane and then meet a white female. Investigator Kallus saw them get into a white pickup; he got in a taxicab to follow them but eventually lost them. Investigator Kallus then returned to Kenai.
At 4:00 p. m. the individual returned to Kenai. He was the second person off of the plane, and he again picked up his duffle bag directly from the baggage compartment of the plane. He then entered the terminal, walked right past his wife who had been waiting for him, and headed straight toward the front door. At this time Officer Cordle and Investigator Malotte approached the individual and asked him if he would mind answering a few questions. 3 The individual, John Kralick, agreed and they stepped into the privacy of the freight room.
Kralick was advised of his rights. In response to questions by Officer Cordle, Kralick stated that he went to Anchorage by himself and did not talk with anyone that he knew. Kralick also said that while he was in Anchorage he took a taxicab from the airport to a grocery store, did some errands, and then returned to the airport for his return flight to Kenai. Officer Cordle briefly explained why he and Investigator Malotte were discussing the subject of drugs and asked Kralick if he would consent to a search of his person. Kralick replied that he had no objection. Kralick emptied his pockets and permitted Investigator Malotte to search his person. However, when asked if he would permit a search of the duffle bag, Kralick became very evasive and defensive, and he stated that he wanted to talk to an attorney. At this time, the police seized the duffle bag although they did not arrest Kralick.
The police sought a search warrant based on the facts just described; Magistrate Jess H. Nicholas issued the warrant to search the bag. During the search of the duffle bag officers found a box wrapped in plain brown paper. The box was addressed to JoAnn Knutson, Box 760, Kalifonski Beach Road, Soldotna, 99669. Inside the box the police found 108 Thai sticks wrapped in a plastic bag, weighing just under one pound.
Prior to trial Kralick moved to suppress the Thai sticks as the fruit of an illegal search, but the motion was denied. Kralick then made a motion to reconsider that was also denied. In this appeal Kralick now renews his challenge to the search.
The primary focus of this appeal concerns Kralick's contention that the issuance of the search warrant based upon the informant's tip violated the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). In Aguilar, the well-known two-pronged test was established to evaluate the sufficiency of an informant's tip as the basis for a finding of probable cause to issue a search warrant. Specifically, Aguilar directs attention to 1) "the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were," and 2) "the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was 'credible' or his information 'reliable.' " Aguilar v. Texas, 378 U.S. at 114-15, 84 S.Ct. at 1514, 12 L.Ed.2d at 729 (citation and footnote omitted). Essentially, it is Kralick's contention that the search warrant in issue fails to pass constitutional muster under either prong of analysis. We disagree.
In assessing "the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were," it must be determined 1) whether the tip was based on the informant's personal knowledge, or 2) whether absent an allegation of personal knowledge the information supplied was so detailed as to support an inference of personal knowledge. Davis v. State, 499 P.2d 1025, 1029 (Alaska 1972), rev'd on other grounds, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Accord Spinelli v. United States, 393 U.S. at 416, 89 S.Ct. at 589, 21 L.Ed.2d at 644.
Kralick first argues that there was no direct allegation of the informant's personal knowledge, stating,
The testimony stated that the anonymous informant overheard a conversation. It did not state when, where, or how this anonymous informant overheard the alleged conversation, nor did it state who was participating in the conversation. It is entirely possible then (sic) the anonymous phone caller was reporting a conversation he heard fourth or fifth hand three or four months ago.
The state, in its brief, directly disputes Kralick's allegation that the informant lacked personal knowledge. As the state points out, the informant told Officer Cordle that "he did personally overhear the conversation of the transaction." The state further argues,
Additionally, the caller had refused to provide certain information relating to the name of the person involved in arranging the transaction or the trip, because of a fear of losing his job and a fear for his family. The caller refused to say where the conversation which he had heard had taken place. From these refusals, an inference can be made that the caller's identity would be known to the persons involved should the caller relate the names of those involved or the place he had heard the conversation, and his job or his family would be in jeopardy.
We conclude that the informant's allegation that he did personally overhear the conversation of the transaction and the circumstances surrounding the call were factors which the magistrate could rely on in reaching his decision that the informant had personal knowledge of the drug transaction.
In addition to these factors the magistrate could draw the inference that the informant's tip was based on his personal observations because the information supplied by the informant was sufficiently detailed to support an inference of personal knowledge. In Spinelli v. United States, 393 U.S. at 416, 89 S.Ct. at 589, 21 L.Ed.2d at 644, the court stated:
In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation.
See also Keller v. State, 543 P.2d 1211, 1217 (Alaska 1975); Davis v. State, 499 P.2d at 1029. The informant provided the date the suspect intended to travel (February 17) and his destination (from Kenai to Anchorage, returning to Kenai on the same day). He knew the suspect's approximate time of departure from Kenai (approximately...
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