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Smith v. State3/31/2004
In August 2000, two officers from the Southeast Alaska Narcotics Enforcement Team applied for a Glass warrant to monitor the conversations of four individuals who were suspected of drug trafficking. Based in part on the evidence obtained through this electronic monitoring, Blaine L. Smith was charged with, and later convicted of, third-degree controlled substance misconduct (sale of amphetamines).
On appeal, Smith asserts that the hearsay information presented to the magistrate in the Glass warrant application does not meet the Aguilar-Spinelli test (the test that governs the issuance of warrants in Alaska). For the reasons explained here, we agree that the warrant application failed to satisfy the Aguilar-Spinelli test, and that the State therefore failed to establish probable cause for the monitoring of Smith's conversations.
The State does not argue that the error was harmless. That is, the State implicitly concedes that if the Glass warrant was issued in error, then Smith's conviction must be reversed. Accordingly, we reverse Smith's conviction.
The Factual Assertions Contained in the Glass Warrant Application
Two law enforcement officers jointly applied for the warrant in this case: Investigator Russell Haight and Sergeant Raymond Culbreth. Both officers gave testimony in support of the warrant.
Haight told the magistrate that the State's main source of information was "N-428", a confidential informant who provided information for pay. Haight informed the magistrate that N-428 had worked for the narcotics enforcement team "off and on" for twelve years, and Haight asserted that N-428 had "a very good track record all over the State of Alaska, ... from Kodiak to several places in Southeast Alaska". But Haight failed to provide the magistrate with any specific details of N-428's past activities to support Haight's assertion concerning N-428's reliability.
Haight told the magistrate that the police had received tips "for a good part of a year" that a number of people were selling drugs. In particular, Haight said, the police had received tips that Blaine Smith and another man named Jamal Wilshusen were involved in cocaine trafficking. But Haight did not specify either the sources or the contents of these tips.
Based on these tips, the police decided to dispatch N-428 to see if he could obtain incriminating information about four men: Smith, Wilshusen, Ken Aparicio, and another man who, at that time, was known only as "Nick".
N-428 subsequently reported to the police that, on July 14, 2000, he approached Aparicio and Wilshusen, seeking to purchase cocaine. No sale took place at that time, but Wilshusen told N-428, "If you're a narc, and we sell to you, I'll shoot you." N-428 also reported that three days later, on July 17, he returned and purchased a gram of cocaine from Aparicio. According to N-428, Wilshusen was not present at this sale, but Aparicio told N-428 that he (Aparicio) had obtained the cocaine from Wilshusen.
At this point in Haight's narration, Haight added that Wilshusen had been selling cocaine and marijuana in Haines within the past three weeks. However, Haight offered the magistrate no information to back up this assertion. Haight then returned to the task of describing the information that the police had received from N-428.
Haight told the magistrate that N-428 reported that, on July 31 (i.e., two weeks after Aparicio's alleged sale of cocaine to N-428), Aparicio took N-428 to Smith's residence and introduced him to Smith. "Nick" was there too. Haight then made an assertion about a conversation that occurred in connection with N-428's visit to Smith's
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