Graham re-indicted on drug charge

Judge had ruled search that led to initial indictments was illegal

Posted: Monday, June 29, 2009

A grand jury Friday re-indicted a 27-year-old Juneau man on a charge related to an undercover drug deal in March - a deal from which two felony charges against him have already been dismissed.

Dillinger Graham is accused of helping another person buy 10 OxyContin pills in a March 19 OxyContin sting at the Travelodge Hotel near the airport. OxyContin is a prescription pain medication. His new charge is punishable by up to five years in prison and a $50,000 fine, like his previous two.

A grand jury originally indicted Graham on two felony drug counts for possessing OxyContin and methamphetamine. Earlier this month, Superior Court Judge Ethan Windahl concluded police obtained the evidence in those cases through an illegal search, and the charges were dismissed.

All the charges stem from a March 19 drug deal that Loretta "Jean" McCutcheon, 25, and Randal Benc, 23, arranged with an undercover informant to allegedly buy 400 80-milligram OxyContin pills for $21,000. After arriving at the hotel and telling the informant the source of the money wouldn't let the funds out of his hands, McCutcheon asked about buying 10 pills and was told it would cost $1,000. She told the informant she would return to the hotel with the buyer, but that he would stay in the car, according to court documents.

Police arrested McCutcheon in the hotel after she bought the 10 pills. She pleaded guilty in April to a related drug charge.

Police confronted Benc and Graham as they sat in a car in the parking lot.

Police asked Graham if he had any weapons and discovered a clear plastic box containing a white pill and portion of a green pill identified as OxyContin. Investigators also found two pouches of methamphetamine.

After being read his rights, Graham told an investigator, "I was going to trade my meth for a few OxyContin. The meth is mine. I bought it from a friend," according to court documents.

The district attorney's office argued at a June 11 suppression hearing that there was reasonable suspicion that Graham was involved in the transaction, "perhaps as the intended recipient of the pills."

Windahl initially ruled to allow the evidence at the hearing, then reversed that position and suppressed it June 12; since drugs never left the hotel room, there was no reasonable suspicion that Graham possessed any drugs with the intent to deliver at that time.

"Similarly, even accepting for now the state's theory that the defendant had aspired to possess the drugs at issue, after that aspiration had been foiled by McCutcheon's arrest, the defendant did not pose an imminent public danger as he sat in the backseat of a parked vehicle," Windahl wrote in his ruling. "Because the underlying transaction had been intercepted by the police, there was at the time of the stop no reasonable suspicion of his imminently possessing or distributing the ten pills, the only OxyContin about which the state had any information."

Windahl ruled that the police stop was "intrusive" because police removed Graham from the vehicle, handcuffed and searched him prior to conducting any other investigation.

The state had argued that it had probable cause after finding the clear plastic box, however Windahl ruled that reasonable suspicion was unjustified and that the initial search was unlawful. Further, Graham's incriminating statements about the drugs after the illegal search were "tainted by the illegality," Windahl wrote.

• Contact reporter Eric Morrison at 523-2269 or eric.morrison@juneauempire.com.



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