Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.

MEMORANDUM OPINION

Judge KOSSLER.

Andre Ronell Brown failed to report to his federal probation officer. When the probation officer made a home visit to Brown's last reported address, Crystal Tomlinson told the officer that Brown no longer lived there. Law enforcement officers then conducted surveillance of Tomlinson; they followed her to a second residence where they surmised Brown was living. At the probation officer's direction, the officers conducted a warrantless search of this second residence, discovering 107.9 grams of cocaine.

Based on this discovery, the State charged Brown with third-degree misconduct involving a controlled substance — possession of cocaine with an intent to distribute — and a jury convicted him of this offense.

On appeal, Brown claims that his probation officer did not have probable cause to believe that Brown was living in the second residence and that the cocaine and other evidence should therefore be suppressed. We agree with the trial court that probable cause existed.

Brown also claims that there was insufficient evidence that he had knowledge and possession of the cocaine that was found in the residence. Viewing the evidence in the light most favorable to the jury's verdict, we hold that sufficient evidence exists.

Last, Brown argues that the trial court erred when it allowed the State to introduce evidence that, several months prior to the search, the police found $17,000 in cash in a car in which Brown was stopped. For the reasons explained here, we reject Brown's claim.

Facts

Andre Brown was on federal probation for a conviction arising from cocaine distribution. His probation conditions authorized warrantless searches of his person and his residence.

In August 2009 Brown was stopped near Talkeetna in a white Cadillac. He had $1,000 in cash on his person. After procuring a search warrant for the Cadillac, the police discovered another $17,000 in cash. The bills were folded in half and secured with rubber bands.

Brown failed to report to scheduled meetings with his probation officer beginning in September 2009. On September 16, 2009, the probation officer went to the last address that Brown had reported as his residence. The officer spoke to Crystal Tomlinson, who told her that Brown was no longer living there and that she (Tomlinson) had not seen Brown for two or three weeks.

The officer then learned that Brown had listed Tomlinson as his wife and emergency contact when he was first released on probation. The officer obtained a warrant for Brown's arrest.

On February 28, 2010, law enforcement officers learned that Brown had visited his mother at her home in Fairbanks and that he was driving a gold Chevy Malibu. They eventually traced the Malibu to a car rental company, which had records identifying "Crystal Brown" as the lessee of the vehicle. The officers surmised that "Crystal Brown" was Crystal Tomlinson, Brown's wife.

Tomlinson was scheduled to renew the lease for the Malibu on March 3, 2010. After she arrived at the car rental company in the Malibu on that day, undercover law enforcement officers followed her. Tomlinson drove under the speed limit and made frequent stops on the side of the road and in parking lots without getting out of the car. Based on this conduct, the officers believed that Tomlinson was attempting to determine if the police were following her.

The officers eventually followed Tomlinson to 734 Chena Ridge Road, where she pulled the Malibu into a driveway of an upstairs-downstairs duplex. In the driveway was the white Cadillac that Brown was stopped in near Talkeetna. The Cadillac was covered by a tarp and snow.

The next evening, law enforcement officers began surveillance of the duplex. At about 7:30 p.m., they observed Tomlinson arrive in the Malibu. A man got out of the car. Using Brown's driver's license photo and a printout regarding his physical characteristics (his height, weight, and race (African-American)), the officers identified this man as Brown. The officers overheard Brown tell Tomlinson to bring him food. Brown then entered the downstairs duplex and Tomlinson drove away.

The police observed Brown walking around the duplex, and at other times sitting in a chair. At one point Brown appeared to be watching television. Around 10:00 p.m. the lights inside the duplex were turned off, and the officers saw Brown walk out of sight toward the back of the duplex. The police ended their surveillance at this time.

The officers returned to the duplex at 8:00 a.m. the next morning and followed Brown and Tomlinson as the two drove away in the Malibu. The couple parked at a Park-N-Sell parking lot, where Brown appeared to be engaged in a transaction, possibly a vehicle sale, with another man. The officers arrested Brown on the outstanding warrant. The man engaged in the transaction with Brown had bundles of folded cash in his lap that were secured with rubber bands.

Following Brown's arrest, the officers returned to the duplex and spoke with an upstairs neighbor. The neighbor told them that Tomlinson lived in the downstairs apartment with an African-American man named Mike.

When the police entered the duplex they observed the framed marriage certificate for Brown and Tomlinson hanging on the wall. To the right side of the front door lay seven pairs of men's shoes.

The duplex had two bedrooms. Both bedrooms contained documents with Brown's name on them. The master bedroom closet contained numerous pairs of men's pants and shirts; the clothing was of the large size and style that Brown wore. The police found multiple pairs of designer eyeglasses, consistent with the type of glasses that Brown wore, on a shelf in the bedroom. They found men's and women's watches on a dresser and also three cellular phones, stacked one on top of the other.

The second bedroom contained photographs of Brown and Tomlinson. One photograph depicted Tomlinson lying on her side on a bed, propped up on her elbow. Before her were approximately twenty bundles of $20 and $100 bills; the bills were folded in half and secured with rubber bands. A man's tennis shoe in the bedroom had a large glass vial containing white residue in it. A police scanner was on top of a dresser. The officers also found in the bedroom a sandwich baggie of ammunition and, in a backpack, a digital scale with white residue.

A shoe box in a kitchen cupboard contained numerous baggies of cocaine, together weighing 107.9 grams. A digital scale with white residue was next to the cocaine. The officers also found inositol powder, a cutting agent for cocaine, in the cupboard, in addition to baggies and a razor with white residue. A cell phone box containing white residue was on a table in the kitchen.

The officers also searched the white Cadillac in the driveway. They recovered a loaded handgun from the driver's side door, a University of Alaska test score sheet with Brown's name on it (dated August 12, 2009), and Brown's W-2 tax statement.

Why we affirm the trial court's determination of probable cause

A probation officer's search of a probationer's residence is a recognized exception to the requirement that the police must have a warrant to search a home.1 For this exception to apply, the search must be (1) authorized by the probation conditions, (2) conducted at the direction of probation authorities, and (3) bear a direct relationship to the crime for which the probationer was convicted.2

No Alaska case has decided what burden the State bears to prove that the location searched was the probationer's residence or was otherwise within the category of locations described in the probation conditions.3 The parties litigated this issue in the trial court based on Ninth Circuit case law stating that probable cause is the standard.4 The parties litigate this issue on appeal using the same standard. We will assume without deciding that probable cause is the applicable standard.5

"[P]robable cause is by definition a standard that hinges on probability rather than certainty, so a showing of probable cause need not rule out other explanations that are merely possible."6 To establish probable cause "the key question is not whether. . . alternative explanations might have been possible; instead, it is whether their hypothetical possibility [would] preclude[] [a] magistrate from drawing an otherwise fair inference" based on the facts presented.7

Here, Brown absconded from federal probation and was not found at his previously reported address. Brown listed Tomlinson as his wife and emergency contact when he was initially released on probation, and he was seen driving a gold Chevy Malibu that was rented in Tomlinson's name.

Additionally, a neighbor reported that an African-American man lived in the duplex with Tomlinson; Brown is African-American, and there was no evidence that Tomlinson lived with anyone else. When law enforcement followed Tomlinson as she drove the gold Chevy Malibu, she exhibited counter-surveillance behavior, such as slowing down and pulling into parking lots, before eventually arriving at the duplex. The Cadillac that Brown had been in when he was stopped near Talkeetna was parked in the driveway of the duplex, and the Cadillac was covered by a tarp as if it was being stored there. Law enforcement officers saw Brown coming and going from the duplex during a twenty-four-hour period before the search, and they saw Brown there at 10:00 p.m. and at 8:00 a.m. the next morning. Brown moved freely in and about the duplex when the officers observed him over the course of the evening.

These facts are sufficient to establish that before the law enforcement officers entered the duplex, they had probable cause to believe that Brown was residing there. The State was not required to affirmatively rule out other possibilities.

Sufficient evidence established that Brown had knowledge and possession of the cocaine that was kept in the residence

This Court reviews sufficiency of the evidence claims by viewing the evidence presented at trial, and the reasonable inferences to be drawn therefrom, in the light most favorable to upholding the jury's verdict.8 To convict Brown, the State was required to prove that Brown knowingly possessed the cocaine.9 A defendant's knowledge is ordinarily established by circumstantial evidence.10

Here there was substantial circumstantial evidence that Brown resided at the duplex with Tomlinson and that he possessed the cocaine in the duplex.

Why we uphold the trial court's admission of testimony that there was $17,000 in cash found in Brown's car during the earlier traffic stop

Under Alaska Evidence Rule 404(b)(1), evidence of other conduct is admissible for non-propensity purposes such as "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." If the evidence is relevant for a non-propensity purpose, then the court must engage in an Evidence Rule 403 evaluation, weighing whether the evidence is more unfairly prejudicial than probative.11

Here, the trial judge found that the manner in which the $17,000 was distinctively folded and bound was probative of Brown's connection to the duplex. Brown and Tomlinson were three times associated with similarly folded and bound bundles of large amounts of cash — in the photo of Tomlinson in the duplex bedroom, at the Park-N-Sell on the day that Brown was arrested, and in the Cadillac that Brown was stopped in near Talkeetna and that was subsequently parked next to the duplex. These associations support the inference that, as the trial judge stated, both Brown and Tomlinson were "involved in the common activities of their relationship and among those common activities is possessing large quantities of cash bundled" in a distinctive way. We conclude that the trial judge did not abuse his discretion when the judge determined that the probative value of this evidence outweighed its potential for unfair prejudice.12

Conclusion

We AFFIRM the judgment of the superior court.