STATE v. FUCCI, A-9863 (Alaska App. 11-26-2008)
Court of Appeals No. A-9863.Court of Appeals of Alaska.
November 26, 2008.
Appeal from the Superior Court, Third Judicial District, Kenai, Harold M. Brown, Judge, Trial Court No. 3KN-06-329 CR.
Blair M. Christensen, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellant.
Daniel L. Aaronson, Kenai, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
STEWART, Judge.
The grand jury indicted Mark Fucci and Nick L. Smith in a multi-count indictment charging the two with misconduct involving a controlled substance. Fucci and Smith moved to suppress the evidence and dismiss the indictment, contending that the search warrant that led to their indictment was issued without probable cause. The superior court granted their motions and dismissed the indictment. In State v. Smith, [fn1] wePage 2
reversed the superior court and held that the search warrant was valid. Because Fucci has advanced no convincing argument that our analysis in Smith was wrong, we agree with the State’s claim that the superior court also erred in granting Fucci’s motion to suppress the evidence, and therefore need not consider the State’s argument that Fucci lacked standing to challenge the warrant. Accordingly, we reverse the superior court’s order suppressing the evidence and dismissing the indictment, and remand for further proceedings on the indictment.
Background facts and proceedings
We discussed the investigation by the police and the relevant contents of the affidavit in support of the search warrant in the Smith
decision.[fn2]
The police encountered Fucci as they were executing a search warrant. Fucci was the sole caretaker for Smith’s mobile home while Smith was in Mexico. Fucci had sole control of the residence and exclusive possession of Smith’s keys. While Smith was away, Fucci plowed the driveway, repaired the plumbing, maintained a fire in Smith’s woodstove so that the pipes would not freeze, and watered the marijuana plants.
The police entered the trailer using Fucci’s key to the padlock. The police searched the trailer and out-buildings, and seized ninety-four marijuana plants, growing equipment, and some processed marijuana. When the police processed the plants, they obtained over nine pounds of marijuana. The grand jury indicted Fucci on three counts of fourth-degree misconduct involving a controlled substance.[fn3]Page 3
Before trial, both Fucci and Smith moved to invalidate the search warrant on the grounds that it lacked probable cause. Superior Court Judge Harold M. Brown granted Smith’s motion but ordered supplemental briefing and a hearing on the issue of whether Fucci had standing to challenge the warrant. Judge Brown later ruled that Fucci had standing to challenge the warrant and granted Fucci’s motion. The State independently appealed Judge Brown’s rulings on both defendants’ motions. In State v.Smith, we reversed Judge Brown’s granting of Smith’s motion.[fn4] Discussion
In Smith, we held that the search warrant application at issue inSmith and in this case established probable cause.[fn5] Fucci has not advanced any persuasive argument that undermines our analysis inSmith. Accordingly, relying on Smith, we reverse the superior court’s order suppressing the evidence and dismissing the indictment. We remand the case for further proceedings on the indictment.
Conclusion
The superior court’s order suppressing the evidence and dismissing the indictment is REVERSED. We remand the case for further proceedings on the indictment.
[fn1] 182 P.3d 651 (Alaska App. 2008). [fn2] Id. at 652-53. [fn3] AS 11.71.040(a)(2), AS 11.71.040(a)(3)(F), and AS11.71.040(a)(3)(G). [fn4] Smith, 182 P.3d at 651. [fn5] Id.Page 1