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Cases challenge legality of anti-"smurfing" statute

Posted: May 16, 2013 - 10:06pm  |  Updated: May 17, 2013 - 12:12am

Law enforcement officers did not have a warrant when they seized hundreds of records from local pharmacies that revealed the identity of every person in Juneau who purchased cold medication over the counter in past months, stretching back a “substantial” period of time, according to a criminal defense attorney who argued the search and the statute that allowed it was illegal.

Prosecutors are pushing back, saying no warrant was needed.

The seizure took place as law enforcement tried to find associates of two men — Gary D. Chamblin, 49, and David B. Pierce, 36 — who were caught cooking meth in plastic soda bottles in a Hoonah warehouse in October 2012. A review of the cold-medication logs provided by the stores and criminal investigation led to the subsequent arrest of five Juneau residents.

Randall Cavanaugh, representing one of the five defendants (45-year-old Clarissa Paulo) whose case has since been dismissed, argued in pretrial motions the search violated his client’s right to be free of warrantless searches and seizures as well as her right to privacy under the state and federal constitutions.

“The police seized the information on hundreds of people before they knew whether the person was involved or not,” Cavanaugh wrote in a 31-page memo. “There was no exigent circumstances to warrant the grabbing of the information without a warrant.”

The statute itself, which requires stores to track and turn over such information to police, is unconstitutional since it allows for illegal searches and seizes, he argued. He says it turns stores into unwilling agents of the state, or “straw law enforcement officers,” as he described it.

“The net effect of the statute is to set up a ‘check-point’ for drug investigation that is manned by store personnel instead of law enforcement officers,” Cavanaugh wrote. “Without a suspicion, the person has to register their purchase and identity. The store personnel are acting as ‘straw law enforcement officers’ in the collection of the cold-medication data. The purchaser is not allowed to purchase or leave with the item until they register. Then after the fact and without a warrant, law enforcement then reviews the store’s stop.”

The state dismissed both charges against Paulo last Thursday before Juneau Superior Court Judge Philip Pallenberg had the chance to make a ruling on the legality of Alaska Statute 17.30.090. That made the motion moot in that case, but the argument will still be heard in court before another judge assigned to one of the codefendant’s cases. Defense attorney Thomas Collins, representing codefendant Benjamin J. Parson, 36, moved to adopt the same argument put forth by Cavanaugh in challenging the statute and requested Juneau Superior Court Judge Louis Menendez to rule on the matter.

The Alaska Legislature passed A.S. 17.30.090 with the intent of curbing meth production by monitoring the sale of some of the main ingredients in meth production, including pseudoephedrine. Its goal was to enable law enforcement to find if someone is “smurfing” cold medication, which is when someone buys restricted materials, such as pseudoephedrine, and then either sells or trades it in for the finished product.

The way the law works in action in Juneau is when a person purchases medicine containing a certain amount of the pseudoephedrine, they must sign for the purchase, provide a current address and present a valid ID card. The business then records the information the customer provided, plus the date and time of purchase and the quantity of pseudoephedrine purchased. Law enforcement can request the records at any time, and if stores don’t comply, they could face a $10,000 civil fine.

Cavanaugh argued while the objective goal of stopping drug production is laudable, “that cannot be the basis for a suspicionless, warrantless search.” Warrantless searches and seizures are unconstitutional in Alaska unless there’s a specific exception allowing for it, he stressed.

“Clearly there was unwarranted and warrantless intrusion by law enforcement into the people of Juneau’s private lives when the medication logs were summarily seized without any specificity and suspicion,” he wrote.

In opposition to Cavanaugh’s memo, Assistant District Attorney Angie Kemp argues the requirement to obtain a warrant does not apply when there is no reasonable expectation of privacy in the thing to be searched. She said Paulo had no expectation of privacy in the logs, and Paulo’s expectation of privacy is not one society is prepared to recognize as reasonable.

“Given the information that was requested, the defendant could not reach any conclusion other than the conclusion that the log is maintained for law enforcement purposes,” Kemp wrote. “For example, the Juneau Drug log itself makes clear that the log is being maintained in order to monitor the purchase of pseudoephedrine by discussing the criminal penalties associated with entering false information and cities to United States criminal code. It would be illogical for a customer to presume that the store would keep a record entitled ‘pseudoephedrine sales log” for any other purpose.”

Kemp noted the records do not contain sensitive personal information, and she argued that Paulo’s privacy interests are outweighed by countervailing societal interests.

“Any alleged interference with a person’s privacy, when balanced against the interests society has in combating methamphetamine production, is not a privacy interest society is prepared to recognize as reasonable,” she wrote, noting the harms caused by meth labs including child endangerment, physical injury and environmental hazards.

She said before laws were passed to control the purchase of ephedrine or pseudoephedrine, the product could be purchased off the shelves in most supermarkets, allowing meth cooks to buy in bulk. Alaska and other states started passing such regulatory laws after the federal government began introducing bills such as The Combat Methamphetamine Epidemic Act of 2005, she said.

“While it is clear that methamphetamine manufacturing cannot be eradicated entirely, it can be limited and monitored through the development of laws like A.S. 17.30.090 that control the purchase of an essential ingredients in the manufacturing process, pseudoephedrine and ephedrine. As a consequence, the laws serve to protect the public, perhaps even at the expense of some personable privacy.
Kemp added, “Privacy interests are not limitless, and they must yield in the face of a compelling need to protect a community’s citizens.”

Cavanaugh said that law enforcement seized cell phones and sent them to Alaska State Troopers to review, while officers collected the medication logs from the stores. Officers found Paulo’s phone number in one on her codefendant’s cell phones, and Cavanaugh says that law enforcement then went through the logs and found that she had purchased cold medication on two occasions.

The state accused Paulo of purchasing 2.4 grams of pseudoephedrine from Juneau Walmart Pharmacy on Oct. 4, 2012, and the same amount from Juneau Drug the next day. Paulo was charged with two felonies for delivering listed chemicals.

In a phone interview Thursday, Kemp did not provide an explanation on why the state dismissed the charges against Paulo but said it was not related to the aforementioned litigation involving the legality of the search, seizure or related statute.

“My decision didn’t have anything to do with the motion practice,” she said.

Without elaborating, she said, “I thought some things would pan out in a certain way, and it turned out that it didn’t.”

Two of the other codefendants — Lindsey Yandell, 24, and Danelle Barlow, 29 — are scheduled to stand trial in July. Another pair of defendants — Parson and Jennifer Hartsock, 36, who are both facing additional charges for alleging manufacturing meth in their Juneau residence — are scheduled to stand trial in June.

The two Hoonah residents accused of making meth in the warehouse last fall — Chamblin and Pierce — have since pleaded guilty to drug-related charges. Chamblin was sentenced earlier this week to 10 years in jail with six years suspended, plus additional time for a weapons misconduct charge. He previously told police the meth was intended for personal use, not distribution, and that it was the first time he and Pierce had worked together. Pierce is scheduled to be sentenced next week.

Contact reporter Emily Russo Miller at 523-2263 or at emily.miller@juneauempire.com.

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