McGraw v. State, Court of Appeals No. A-13566

CourtCourt of Appeals of Alaska
Writing for the CourtJudge WOLLENBERG.
Citation512 P.3d 994
Parties Jonathan W. MCGRAW, Appellant, v. STATE of Alaska, Appellee.
Docket NumberCourt of Appeals No. A-13566
Decision Date24 June 2022

512 P.3d 994

Jonathan W. MCGRAW, Appellant,
v.
STATE of Alaska, Appellee.

Court of Appeals No. A-13566

Court of Appeals of Alaska.

June 24, 2022


Marjorie A. Mock, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.

Seneca Theno Freitag, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.

OPINION

Judge WOLLENBERG.

512 P.3d 995

Jonathan W. McGraw was convicted of second-degree misconduct involving a controlled substance for possessing methamphetamine with intent to deliver.1 On appeal, McGraw argues that the superior court erred in denying his motion to suppress the methamphetamine discovered in a trailer on his property. For the reasons explained in this decision, we agree with McGraw, and we therefore reverse McGraw's conviction.

Background facts

In April 2018, Jonathan McGraw was living in Naukati, a remote community on Prince of Wales Island, and he was on felony probation for prior drug convictions involving marijuana. One of McGraw's probation conditions authorized a warrantless search of his property if the search was directed by a probation officer and supported by "reasonable suspicion of possession, use, or distribution" of marijuana or alcohol:

[Y]ou shall submit to a search at the direction of a probation officer at any time, with or without a warrant, and by any law enforcement officer or probation officer, of the defendant's person and property, residence, a vehicle in which you may be found or owned by you, for marijuana or alcohol upon reasonable suspicion of possession, use, or distribution of those substances. And the order may also be given by any probation officer in the lawful discharge of the officer's supervising functions.

McGraw's probation officer, Erica Johnson, monitored McGraw primarily over the phone because of the remoteness of his location. She knew that McGraw had undergone a substance abuse evaluation, and that the evaluation had recommended treatment that McGraw had not yet obtained. But according to her later testimony at the evidentiary hearing on McGraw's motion to suppress, she did not have any "large suspicion" that he was using alcohol or marijuana.

On April 18, Investigator Larry Dur'an, with the Alaska State Troopers, sent an email to Johnson, stating: "I received a tip today that Jonathan McGraw was seen at a local dealers [sic ] home on [Prince of Wales] who sells meth and heroin. The person suspects that John is using." The email did not disclose the identity of the tipster, and there is no indication in the record that Johnson asked for additional information. In response, Johnson sent a form request to the troopers stationed on Prince of Wales Island, asking them to search McGraw's residence for "drugs, drug paraphernalia, alcohol, [and] weapons."

Three days later, two troopers arrived at McGraw's residence. The troopers later testified that McGraw was "agitated" and "profusely sweating" when they encountered him on the front step of his home, even though it was not warm outside. McGraw's behavior gave one of the troopers "some" suspicion that McGraw was under the influence of a stimulant. The troopers searched McGraw's residence, vehicles, and two trailers on his property (one of which was locked), and they discovered drug paraphernalia and several baggies of methamphetamine. McGraw was arrested and charged with second-degree misconduct involving a controlled substance (possessing methamphetamine with intent to deliver).

Prior to trial, McGraw filed a motion to suppress the evidence seized during the troopers’ search of his home. McGraw acknowledged that his probation conditions authorized his probation officer to order searches of his property based on reasonable suspicion that he was using (or possessed) alcohol or marijuana. He argued, however, that Investigator Dur'an’s tip to Probation Officer Johnson was insufficient to...

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