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Drug mule evidence tossed by judge

Dave BendingerBristol Bay Times-Dutch Harbor Fisherman

In what seemed a major blow to law enforcement's efforts to thwart the drug trade in Western Alaska, Dillingham Superior Court judge Pat Douglass suppressed the heroin seized as evidence against Cherilyn Serradell, 28, in September 2013. The state's drug importation cases against Serradell and alleged mastermind Vaughn Clark, 38, then fell apart and were dismissed.

Serradell and Clark were arrested at the height of last year's surge of black tar heroin importation. The case was extensively reported in local media, and the two were widely condemned by the Dillingham public at the time. Judge Douglass issued her ruling suppressing the heroin evidence on April 7, and the charges against each were dropped on April 16.

"It was a devastating case to lose," said assistant district attorney Duke Circle. "The court found the original seizure to be improper, resulting in the suppression of the evidence. Without any evidence, we were unable to go forward with the prosecution."

Arrest and Allegations

Western Alaska Alcohol and Narcotics Team Investigator Nasruk Nay received a confidential tip that Vaughn Clark, who was living in Anchorage, would be shipping heroin for sale via a female passenger on the evening flight to Dillingham on Sept. 14, 2013. Nay, a seasoned veteran in the battle against drug and alcohol importation, checked the passenger lists and found that Clark had been booked on the flight, but had tried that day to transfer his ticket to other names.

Nay positioned himself at the PenAir terminal on that Saturday evening as the flight arrived, unsure of exactly who or what he would find. To his eye, only one disembarked passenger seemed suspicious. That passenger, who seemed a "fish out of water" as Nay later described, asked a ticketing agent where a courtesy phone was located. As she did so, Nay glanced at her luggage tags, and called the local dispatch to check the public records for Cherilyn Serradell, a name he was not familiar with. Dispatch reported that Serradell had a prior drug crime conviction on her record from Bethel.

Serradell placed a phone call, and minutes later Nay observed Vaughn Clark's daughter arrive at the airport and ask a ticketing agent to page Cherilyn Serradell.

Nay moved in to question Serradell. She told him that she was not transporting heroin, but had been in contact with Clark earlier that same day. She said she had never been to Dillingham before, and was traveling on to Togiak to visit family the next day.

Based on his information from the confidential informant, Nay knew he had the right suspect. He told Serradell he was going to seize her luggage until a search warrant could be obtained, but that she was free to leave.

Serradell did not object, but asked if she could take her two purses with her. She then asked if the contents of one purse could be moved into the other, and she could leave with just the one. Nay agreed, and when the contents were moved, he observed a new pack of syringes and a small cellophane bundle which resembled common heroin packaging. Serradell was then placed under arrest.

"I'll stress that my observation of what was in that purse was based on her request for me to dump things from one purse to the next, so she kind of did that to herself," Nay said in an interview after the arrest.

After a warrant was obtained, Nay searched the other bags, which were found to contain a bizarre miscellanea of items, including Halloween costumes and dirty clothes of different sizes and styles, but no drugs.

However, a search of her person at the Dillingham jail did turn up more heroin hidden in a bra strap, a small amount Nay considered to be for "personal use." Believing she was concealing more heroin, Nay and the Dillingham Police Department carefully monitored Serradell over the next 24 hours. Shortly after Serradell used the female restroom, an employee discovered a bundle of heroin stuffed into the toilet paper dispenser. It was later measured at six grams. When cut for sale, six grams equals an average of 100 doses, and carries a street value of $10,000 in Dillingham.

While in custody in Dillingham, Serradell's only phone call was with Vaughn Clark. Listening in, Nay later described the conversation as heated, and said that Clark had been upset and chastised Serradell for getting busted.

Nay believed Serradell might have been concealing more heroin in other parts of her body cavity. She was transported to an Anchorage holding facility better equipped for long-term monitoring and the analysis of human waste. No additional heroin was found.

A warrant was issued for Clark's arrest on a charge of conspiracy to import and sell the heroin. A traffic violation led to his arrest in Anchorage a week later.

Reasonable Suspicion vs. Probable Cause

Whether or not investigator Nay had the legal right to seize Serradell's luggage at the Dillingham Airport was the subject of a March 6 evidentiary hearing before Judge Pat Douglass.

Attorneys for Serradell and Clark argued that Nay did not have "probable cause" to seize the luggage, as his information had only been based on vague descriptions and did not include the female drug mule's name. State prosecutors argued that the investigator only needed "reasonable suspicion," a lower legal threshold, to seize the luggage in order to apply for a search warrant.

In an 11-page ruling, Judge Douglass held that Nay had needed to establish probable cause to conduct a "full-scale seizure" of property. "Here, Trooper Nay intended to take Ms. Serradell's bag entirely out of her possession to the police station in order to apply for a search warrant," wrote Douglass. "Until the search was complete, she would be denied any access to her belongings. The significance of this intrusion favors finding that it had to be supported by probable cause."

Douglass cites a 90-minute rule established in a U.S. Supreme Court ruling and used in Alaska, whereby probable cause is needed if a traveler is to be kept waiting longer than and hour and a half.

It was late on a Saturday, and Nay needed a search warrant to examine the luggage, as Dillingham no longer had a drug dog to sniff for heroin quickly and non-invasively. Ignoring the fact that Dillingham has an on-call weekend magistrate judge and local authorities can make use of the Anchorage court system when necessary, Douglass asserted that the search warrant could not have been obtained within the 90-minute timeframe. "Trooper Nay would not, in all likelihood, have been able to obtain a magistrate until at least the following day, which means that Ms. Serradell would have had to spend the night without any of her belongings," she wrote, going on to say that such a length of time would have required probable cause.

An officer has probable cause to seize luggage "when he possesses reliable information in sufficient detail to convince a reasonably prudent person that crime has been or was being committed," wrote Douglass. At the evidentiary hearing in March, Investigator Nay testified what reasons he had for approaching Serradell at the airport and seizing her luggage, including the confidential tip, prior drug conviction, connection to Vaughn Clark and his daughter, and her "fish out of water" appearance. Douglass tossed them all as insufficient to establish probable cause.

Trooper Nay did eventually obtain a search warrant for the luggage, but it wasn't necessary for the arrest. When Serradell allegedly asked for her purse and the contents from another, she put in plain view what appeared to be drug paraphernalia, and she was then arrested.

Effect on drug and alcohol enforcement

It's unclear how big of an effect this ruling could have on law enforcement's abilities to stop the importation of drugs into Dillingham and outlying villages. The Dillingham Police Department and WAANT expressed frustration at losing the case, but declined to comment.

The profit margin entices many in Anchorage to take the risk to transport drugs like heroin back to Bristol Bay to sell, as was pointed out by Vaughn Clark in an interview after he was charged, but prior to his arrest.

"You can buy a gram over here (in Anchorage) for $200, OK, and you bring it over there, and you turn around, and you make $1,200-$1,500 off that one gram," he said.

Drug importation is a game of cat-and-mouse between the dealers and the authorities, played out in the mail, air cargo, and both commercial and bush air traffic. As the officers often say, drug mules don't wear name tags. The information officers use often comes from confidential sources who must be carefully vetted for reliability. Officers often receive deliberately mixed signals to throw them off course, and dealers are always on the hunt for crafty new ways to safely import to bush communities.

Meanwhile, on the investigative side, the line between "reasonable suspicion" and "probable cause", "is not as clearly defined as we'd like it to be," said prosecutor Duke Circle. "This issue could get sorted out better in the upper courts, the appellate courts, but it won't be with this case."

Circle said he expects law enforcement to keep up an aggressive effort against drug importation in Bristol Bay, whether or not there's a drug dog, an on-call magistrate, and in-region WAANT officer, or a court ruling that raises the bar on what constitutes probable cause.

"Does this ruling change anything about those efforts going forward? By and large, not really," he said. "We'll continue to look at each case individually to determine how much reasonable suspicion there is versus probable cause. If we lose a decision like this again, we may have to take a look at our procedures. But one decision alone on one individual case isn't enough to change policy."

This story originally appeared in The Bristol Bay Times and is republished here with permission.


By DAVE BENDINGER
Bristol Bay Times