People v. Matthews

Dist., No. 36420. Second Div. One. Nov. 1980.] [Crim. PEOPLE,

THE Plaintiff and Respondent, MATTHEWS, TOBY Defendant and Appellant. ST. GEORGE Counsel Defendant and Appellant.

David LaMonte Williams for Philibosian, General, Chief Robert H. George Deukmejian, Attorney Moore, General, Gener- Attorney S. Clark Assistant Assistant Attorney Currier, al, Deputy Attorneys and Donald R. Juliet H. Swoboda General, for Plaintiff and Respondent.

Opinion (order LILLIE, grant P. J. from Acting Defendant appealsjudgment transportation verdict of guilty illegal entered on ing probation) jury Code). (a), appellate Health & Saf. (§ subd. of marijuana seizure of contraband to search and issues relate primarily narcotics. to Taken on the Motion

Evidence 1538.5, Suppress (§ Code) Pen. Cus- for the United States Officer detector handler McCauley, dog to work with his dog areas toms Service was various assigned On December he who alert for narcotics.1 is trained to Humphrey J, terminal, Pier Berth to Pasha car by Long assigned Beach, for the of automobiles into importation terminal States; had been taken from the and stored ship owned cars privately customs before at Pasha a check for contraband narcotics awaiting to check Officer function was consignees. McCauley’s delivery narcotics to sniff the Humphrey vehicles contraband using them; past he and walked the cars in this surrounding Humphrey air last until he came registered fashion and reaction Humphrey car, picked up a 1970 Maserati to which alerted—he Humphrey vehicle, the underside of the at front toward proceeded scent car, he and scratch—his nor- when he under it started bite got McCauley At this Officer pulled mal alert for narcotics. training point radioed an inspection inspec- but to away, made further Humphrey 10 tion team which arrived minutes later. had

Officer LaFata that alerted McCauley Inspector Humphrey told Maserati, to un- the and ran alerted the Humphrey again; Humphrey alert, LaFata drilled derside of the Maserati. Based on Humphrey’s portable with a drill 2 3 inch holes into the frame under- one-eighth car; the neath the this a substance on the end of drill bit “that produced be had been trained customs appeared to hashish” LaFata (Inspector narcotics); on the he spot and Federal Administration to interdict Drug Humphrey as investi establishing reliability of an laid the 1 Adequate foundation was by examining Humphrey of judge expertise the gative established device. trial training, ability. concerning experience and length Humphrey’s McCauley at Officer dogs training for detector following: course developed the questioning This of line Service; dog is evalu United States Customs given 12 weeks in the east for weeks; of 12 training, and at end he continues passes, of if he ated at the end then he dogs Humphrey ranked 5th but since his class again; of 6 in weeks is reviewed high he reevaluated, dogs Angeles district scored of in the Los and out has been est; herein; year last prior to the incident months evaluation was 2 this cars; 1,000 percent accurate.” “he is about inspection of to Humphrey ran ran a field test which reacted arid positive confirmed his suspicion the substance was hashish. The Maserati was thеn taken under seizure to the customs house. An inspection floorboards under the rear seat alteration; revealed when the plate altered was pried up, eight pounds hashish were found in wrapped separate cellophane stuffed packages into an car; aluminum in compartment the frame of the the narcotic Cleveland, was Officer removed. Patrol, States Customs re- moved and initialed one of narcotics pieces replaced it in the Maserati; the vehicle was restored to its prior condition. 3, 1980,

On released January the Maserati defendant Beach; drove it Long he to his home in Pasadena under surveillance of Officer Cleveland Beach defendant Long police; remained in the car and appeared check various areas and lift the rear seat. Defen- dant was arrest; asked out of the car and step placed under the rear seat had been removed from its attachments. main is that the

Appellant’s complaint search of the Maserati at the illegal Pasha car terminal was for lack of cause probable to be lieve it contained contraband narcotics thus it an exploratory search state violative federal and Constitutions. We conclude circumstances that the search constituted custom’s search here a “border which the Fourth test area” must meet Amendment of rea cause; sonableness warrant requires but neither a nor and that probable time, on the basis those facts to the custom’s at the inspector known the search of the vehicle was reasonable. Thus, 1538.5 was heard de novo. vested in section motion witnesses,

the trial court was the determine the of power credibility to resolve (Pe in the and draw factual inferences. weigh conflicts evidence testimony, (1970) v. Cal.3d 477 Cal.Rptr. West 3 602

ople [91 P.2d favor of that appeal On the existence 409].) presumptions power if and on such must be upheld matters findings express implied (1973) 3d v. Lawler 9 Cal. supported substantial evidencе. by (People 160 P.2d Here the court had the Cal.Rptr. 621].) [107 on the search was to determine whether or not the facts duty presented, on within of Constitution. Where the evidence meaning the federal such is one of law which the substan dispute issue is the issue to (1975) 49 Cal. Bigham tial evidence does not apply (People rule be of question here it a App.3d 252]); appears Cal.Rptr. trial court’s presume support Thus we law and fact. mixed drawn from reasonably have been could whatever inferences finding the constitu court, against the facts and measure the trial evidence by defendant of where the issue As to of standard reasonableness. tional he ar conflict; was court found arrested, trial there was some finding this vehicle. To as he exited his his residence rested outside of seeks to invoke the Appellant rule. the substantial evidence we apply 629, 545 (1976) Cal.Rptr. 16 Cal.3d rule People Ramey of However, warrant. made without a because the arrest was P.2d 1333] finding the trial court’s evidence to ample support there is more than sister. and defendant’s Northrup of Officer based on testimony is a of Beach Long the Port terminal at That the Pasha car crossing land border only “includes not area” which of the “border part v. Supe of entry” (People at all checkpoints ports but also checkpoints, 523, 529 (Randall) rior Court be had a Humphrey right and McCauley Customs Officer 143]), and nar cars for contraband imported checking there for the of purpose (Pier J, lot Company evidence. The Pasha is established in the cotics although privately 242), gate guard; link fenced with Berth is chain for cus Customs Service owned, the United States it was approved by specifically Company, of Pasha upon application toms jurisdiction into the United States of automobiles importation is terminal im to have company application Such a lot is on ship. approved customs, approval by submitting there ported cargo kept Those mem it, bond. system posting providing security fencing or the shipping business with customs bers of the who have public lot, is “not supposed on the the general public are company permitted area, area operated a customs security there.” The lot a bonded be Customs”; the graces a terminal “with it exists as auspices “under the and be avail regulations with customs’ Customs” and it must comply has jurisdic The customs service to customs for reasons. security able Upon of cars. importation car terminal for the tion over the Pasha are re United States ship into the imported arrival automobiles customs in Pasha therefrom, and kept by moved checked for damage be inspectors to be checked for contraband by car terminal inspec officials conduct Customs consignees. fore released to the being lot; it is Officer and the Pasha through Company tions “routinely” the cars detector to check dog function with the aid of his McCauley’s narcotics; for that to the lot he is customs assigned by for contraband the area. which is allowed into for he purposе

18

It is once imported at that the automobiles at Pasha apparent kept dominion, are under the the custody and control of United States Cus Service; toms and that the routine of inspection cars for contraband is terminal, narcotics made at place customs officials Pasha car specifically that approved by for as soon as the cars purpose, are transferred from the ship. Defendant his Maserati shipped from States; to the England arrived at the Port of Beach Long where it was from the ship removed and transferred to the Pasha Com lot where it was held in pany the of customs for for custody inspection contraband by customs officials. There is little doubt the that Maserati at Pasha car terminal inwas the and control of customs the custody at (cf. time inspection for contraband narcotics was made v. People (1975) 235, 90 243-244 Whyte Cal.App.3d and Cal.Rptr. 280]): [152 that customs officials had a to be there right purpose. Thus search of Maserati at the Pasha lot was a Company custom’s search in a conducted “border area” at a of port entry. search,”

A “border which customs inspectors are authorized to upon entry persons or vehicles to the United States is conduct broadest possible character its must be validity determined in ac law, cordance with federal and there is no question of probable cause under (1973) state 920, law. v. (People 34 Cal.App.3d 930 [110 Kosoff Cal.Rptr. 391]; People Superior (Randall) (1973) Court 33 Cal. 523, App.3d 528-529 Cal.Rptr. 143]; People (1971) v. Eggleston [109 1026, 15 1029 (1969) 776]; People Cal.3d v. Clark 2 [93 510, Cal.App.3d Cal.Rptr. 682]; (1969) Mitchell Cal.Rptr. 764].) “The term ‘border search’ is ‘the courts’ shorthand way defining limitation that the Fourth Amendment imposes upon of customs right agents to search without cause’; probable right that ‘predicated on right obligation .to government.. prevent the importation contraband or of un declared, therefore, merchandise, untaxed and on the universal understanding persons, parcels and vehicles crossing the border (9th bemay searched.’ United States v. Weil Cir. dеn., cert. (Peo U.S. 947 933].)” S.Ct.

ple (Randall) v. Superior Court 33 Cal.App.3d 529 [109 Cal.Rptr. ‍​​​‌​‌​​‌​‌‌‌​‌​​‌​​​​‌‌‌​‌‌‌​‌​​‌​​​​​​‌‌​​​‌​‌‍ 143].) of warrant or un probable here there is issue cause

Although law, der must state border search nevertheless meet Fourth An under federal standards. intru Amendment test of reasonableness even requirements though Amendment satisfy sive search can Fourth of con suspicion presence made the mere of customs agents on articles; if is nonintrusive inspection traband or undeclared dutiable (Randall) Court Superior necessary. (People not even is v. suspicion 523, Said the 143].) Cal.Rptr. 529-530 Cal.App.3d a nonintru justify “Not is suspicion required court in Randall: even crossing. their vehicles and effects at a border sive inspection persons, States, 805, 808; (Henderson 390 F.2d 19 U.S.C. supra, United v. a reason for such search. 1496.) The fact of alone sufficient entry § 849; (Klein Witt v. Unit (9th 1973) United States v. Cir. 389, 391, den., (9th ed States 1961) 287 F.2d cert. 366 U.S. 950 Cir. is received from When merchandise 1904].) 81 S.Ct. abroad, ‘until it has been exam inspected, it must be held under bond ined, (Randall) (1973) 33 Court (People Superior or appraised,’...” 143].) 530-531 he was did conduct a rоutine assigned McCauley

Officer car cars in the Pasha terminal inspection imported with, narcotics; it in manner contraband was done a nonintrusive clearly a did more than sniff the air sur the aid of trained detector who no dog the Maserati. alert to Humphrey’s the vehicles

rounding including intrude underside of the did not into disturb any way Maserati uncommon, is not dogs vehicle. The use of narcotic trained detector In all cases the federal courts have such use various cases. analyzed an courts have held that the air an is neither sniffing surrounding object Circuit, of appeals intrusion nor a search. In the Ninth the court (9th States v. Solis that the use of Cir. 536 F.2d 880 held semitrailer was rea to sniff the air a dogs surrounding parked detector a search under the Fourth Amend prohibited sonable therefore not such as the court at 882-883: “The intrusion pages dogs’ ment. Said in the of the trailer vicinity was the air open public onto space was There no invasion society. to us tolerable in our appears reasonably Or electrоnic No mechanical sophisticated trailer. ‘curtilage’—the indiscriminate, but solely The was not investigation devices were used. was an expectation contraband. There particular directed it were Efforts made mask from the trailer. the odor would emanate inoffensive. There was the officers was visible. The method used target physical person. to or search embarrassment ” crime, Other communications. protected of possible fact indicative sur canine of the air trained sniffing by also held that circuits have (10th Cir. (United Venema States an is not search rounding object outside of defendant’s sniffed air [dog 1977) 563 F.2d 20

locker; (2d 1975) United States v. search]; Bronstein Cir. 521 459, 461-463, F.2d 324, cert. 424 918 den. U.S. 96 S.Ct. [47 search; of canine at terminal [sniffing not constitute baggage 1121] reasonable expectation one privacy by transporting baggage by plane; use of trained no different than officer of nar- dog police detecting odor (D.C. cotics through senses]; United States v. Fulero Cir. olfactory 1974) 748, 498 F.2d 749 sniffed de- air around footlocker bus [dog pot; court labeled as “frivolous” contention this was unconstitutional Solis, Bronstein, intrusion into In law en- lockers]). Venema Fulero forcement officers had which were prior tips information or corroborat- ed a trained but in none cases customs or by dog; of these was there a (1st border In or arrest. United States v. Race Cir. inspection 12, 14, the arrest at the court port entry; the use of detector it said that a trained approved dogs, although dog’s 14). reaction alone is not sufficient cause for “arrest” In probable (p. 1020, (N.D.Ind. 1979) Doe v. 475 there was no F.Supp. Renfrow information school authorities who used detector independent dogs school; to sniff out narcotics on of students in a the court person public as to invoke held it was “a minimal intrusion at best and not so serious (P. 1020.) of the Fourth Amendment.” protections of narcotic detector Various state authorities also use approve the air around an object by few cases discuss whether dogs; sniffing if hold that it does and detectоr a search some dogs although constitutes constitutes an search suspicion exploratory not based on reasonable (1977) Cal.Rptr. 436]; 65 936 Cal.App.3d v. Evans (People [134 (1975) Cal.Rptr. 350 Cal.App.3d v. Williams 51 People [124 expertise establishing dog’s others discuss the 253]); necessity 924, 933, 936 (1977) Cal.Rptr. Cal.App.3d v. Evans 65 (People [134 (1973) Cal.Rptr. Cal.App.3d 436]; v. Furman [106 where place his handler were or not the 366]) dog and whether 924, 933 (1977) 65 Cal.App.3d v. Evans had a they right (People to.be v. Williams Cal.Rptr. 436]; People be canine check to nonin one indicates a 253]); 613, 615 Cal. (1980) 101 Cal.App.3d trusive Lester (People constituted of detector dog; use tip by Rptr. investigated 703] [officials in defendant; use of dog the court approved arrest cause to probable None of rights.”]). with Lester’s “without interfering vestigation investigation. border or customs state cases involves a air bench, open surrounding if Humphrey’s sniffing In the case at search, had a to be constitutes right where he place the Maserati in a of the no invasion There was one. nonintrusive entirely it was an from emanating the scent reacted to merely and Humphrey Maserati been estab had expertise Humphrey’s vehicle. the underside of of eight pounds the odor lished; that was an expectation there fact, found narcotic was in the the vehicle emanate from hashish would Thus, inasmuch into the frame. inserted compartment in an aluminum of of a customs port entry by at a in a “border area” place as this took customs, was not even suspicion of under the control place ficial in a v. vehicle. (People of the inspection nonintrusive to the justify required 523, 530 Cal. (1973) 33 Court (Randall) Cal.App.3d Superior [109 143].) Rptr. nature, in case in the instant intrusion, minimal although

The first the frame on holes in of two or three one-eighth-inch was drilling the necessary The amount of suspicion the Maserati. the underside of on the facts and circum test depends to the reasonableness satisfy on a reason case, person’s the intrusion greater stances of each and the v. be. (People the the must suspicion able of expectation privacy, greater (1973) 523, 529-530 Court (Randall) 33 Cal.App.3d Superior Second, First, the reason Cal.Rptr. this was a “border search.” 143].) was here that narcotics were the Maserati able contraband suspicion whose credentials of a trained detector dog based upon expertise be car were established handler had a Pasha right and whose Third, inspector such was formed suspicion lot. reasonable (LaFata) trained to interdict contraband narcotics items especially Fourth, A into the the intrusion was minimal. imported United States. of or their persons search of vehicle is far less intrusive than searches (United (2d v. Doe States immediate effects. Cir.

984-985.) At this dismantled or torn point apart, the Maserati neither was it entered. The search constituted two merely drilling three in the frame underneath the car. one-eighth-inch Finally, holes expecta there was invasion of defendant’s reasonable impermissible of time the vehicle he had from imported privacy during tion into the United wаs under the dominion and control of States England of For an invasion of entry. privacy customs officials at the port would the reason suspicion necessary satisfy increase amount Amendment, (sub be ableness test of the Fourth there must an actual and the must be one jective) expectation privacy expectation (See as reasonable. society prepared accept Kosoff (1973) One cannot rea 391].) Cal.App.3d the United States would not be sonably expect imported that a car into search; no subject to customs would believe that he importer reasonably could avoid examination or inspection by customs officials. goods (People Cal.Rptr. 391].) Kosoff Further, it was a reasonable expectation that the odor of eight pounds would emanate from car marijuana despite addition of the aluminum piece inserted in frame and the welded plate.

Based on Maserati, Humphrey’s it was alert reason entirely LaFata, able for Inspector narcotics, an inspector trained to interdict to that suspect the Maserati contained contraband narcotics. Although the two or three drilling one-eighth-inch holes a search of intrusive nature, it was minimal and justified the fully by circumstances.

We conclude that it was not prohibited a search under the Fourth Amendment. The on the substance end of the drill bit to appeared hashish; LaFata to be this was confirmed in two ways—by Humphrey’s prior'alert and the in-the-field test. Thus he had reasonable cause to believe the Maserati contained narcotics. The customs house examina of tion the floorboard an revealing altered in the plate area the odor and drilled holes justified the intrusion of greater plate; the removing and it is not question in here.

Inspector LaFata testified he no has the ampule test used longer in him the field to test the substance on the drill bit. This was the basis (1974) defendant’s motion pursuant v. Hitch Cal. 3d Cal.Rptr. 527 P.2d 361]; was denied. Appellant argues

that bit, LaFata made no effort to preserve ampule the drill thus his should have been testimony excluded. We note that had he pre served the he ampule, produced could have a deteriorated only material in an unrecognizable state. Where evidence has been if destroyed, faith, authorities acted the defense be good upon will called make a of substantial Even after this showing materiality. showing is made, an will not appellate court reverse the conviction if the prosecu tion establishes that the evidence was harmless beyond reasonable doubt. (People 15-16 Wright drill, 311].) after Immediately removing Inspector LaFata took the residue the bit put on it in a field kit (ampule); he no has longer used to make test ampule because the substance in it had dete riorated; he “there is acid in the kits explained and that deteriorates fast very after use them”—the results deteriorated you to an unrecogni zable state. LaFata further testified that the inspectors cannot consider the field test as conclusive because are not chemists so it is they used narcotic; thus, a substance is opinion as a tool confirm an only tested, of the substance sample take a procedure, they as part to the drill bit of the substance on the he a sample this case took ran a test. where a chemist laboratory us, nor is record before of bad faith There is no evidence substantial ampule were of the contents such showing there any First, ampule of the test contents case. materiality to defendant’s state. unrecognizable an test deteriorated to within a short time of the used inconclusive and Second, admittedly field test was the result of the (based on suspicion formed already LaFata’s as a tool to confirm only bit) drill the residue on the appearance alert and the Humphrey’s Third, were of the field test the results was hashish. that the substance . (beneath floorboard) of the ve further search unnecessary justify bit which on the drill alert and the substance hicle because Humphrey’s sufficient to reasonable justify be hashish were to LaFata to appeared Fourth, customs contraband narcotics. that the car contained suspicion on the drill substance remaining test of the has a laboratory laboratory the was proper. bit. The denial of motion cellophane in wrapped

At of hashish pieces the customs house various car, and taken into custo- the initialed were removed from the frame of (Customs Patrol) At time Cleveland by customs. the same Officer dy frame, the car ini- the contraband from personally piece removed one of its to The car was restored tialed it and it to the Maserati. returned a of of delivery” piece on 3 a “controlled January condition and original car was released in to defendant. The hashish the Maserati was made Beach; ‍​​​‌​‌​​‌​‌‌‌​‌​​‌​​​​‌‌‌​‌‌‌​‌​​‌​​​​​​‌‌​​​‌​‌‍Cleveland of Officer he drove it under surveillance him at Long Pasadena; in the he parked in Beach to an address Long police raising the and, of the vehicle the interior inspecting aftеr driveway evi- seat, The only physical he the vehicle. rear was arrested as exited was the delivery” search of the “controlled dence seized as result Officer by the frame of the vehicle from of hashish taken single piece Cleveland. in used normally are that controlled deliveries

At the outset we note been consistently has approval. with narcotic cases judicial “[I]t known package allow for the authorities held that it proper the purpose recipient, its intended delivered to contraband be of narcotics. importers or investigating apprehending [Citations.]” (1973) Cal.App.3d 391] (People Kosoff (see also 933); cases p. collected at (Randall) v. Superior Court (1973) 33 fn. 3 Cal.Rptr. 143].) Appellant’s complaint is that “warrantless ‘controlled customs searches delivery’ are unlawful,” citing People Whyte 90 Cal.App.3d Cal. Rptr. There, But there is such holding Whyte. customs offi 280]. cers delivered to and left several bales of burlap pounds containing of marijuana on the sidewalk in frоnt a bookstore where defendant business, had a clerk; at the instruction of departed they and because truck, defendant was delayed picking up bales another clerk them into the dragged bookstore several hours later customs whereupon went agents clerk; into the bookstore and arrested the first the bales were returned sidewalk. During customs officials day had kept surveillance; the bookstore and defendant under defendant once bookstore, entered the parked across the street it watching and several it; times drove at past 11:15 the bales into finally p.m. they took custo without dy a warrant. court People’s The rejected contention that this was a The customs search. court held the intrusion to be unreason able and concluded that “Once the bales of burlap were inside placed bookstore, (P. 244.) control customs service ended.” sidewalk, said court “While on they were out under the sur [bales] veillance federal be agents, conceivably argued cоuld they remained transit and under the control of the service. How ever, once the bales were inside the placed Abraxas Book Store where business, rented his respondent space for absent circum exigent stances, a warrantless seizure and search of the subsequent bales became any Clearly, they unreasonable under were theory. long [1Í] (P. 243.) er in transit or under the dominion Whyte of customs.” Further, hold inapposite here for obvious reasons. does not that Whyte unlawful; warrantless controlled customs searches are the court delivery did might intimate that customs search have been involved had the customs,” been bales “in transit or under the dominion of bales well been under the might have considered to be transit and control into of customs had not been the bookstore. they dragged customs; defendant was was still The Maserati under control he had an opportunity of the vehicle before stepped arrested as he out that removal of the single We conclude to remove the narcotics. was the re- Officer Cleveland by the Maserati of hashish from package this in the record indicates Nothing border search. sult of an extended search unlawful. his admitting erred in the trial court contends

Finally, appellant he was confronted were made after they because police statements v. DeVaughn relies upon People evidence. He with obtained illegally for his conten 558 P.2d 18 Cal.3d 889 872] and without with seized evidence illegally tion “that after confrontations cause, any arrest without probable after an warning Miranda timely is that if defendant The fact made him is inadmissible.” statement statements, that evidence before his with evidence any was confronted Cleveland which the Maserati Officer that recovered from had to be seized; made and were voluntarily were his statements illegally was not exit that when defendant Northrup Officer testified admitted. properly No were questions under arrest. the driver’s seat he him placed ed arrested, de but, being for what offense he was asked told upоn being his, vehicle was fendant volunteered spontaneously Officer responsibility; it was his and he would take full contraband in him of his constitu talking had him advised Northrup “just stop” his defendant said the vehicle was tional after them rights; waiving himself, the car the hashish England, placed he had it from imported hashish was for his personal here a road tour and the racing came use.

The judgment is affirmed. (Thaxton), J.,

Hanson concurred. I dissent. W.), J.*

DUNN (G.

I for two reasons: majority I the view of the dissent from respectfully to establish the trial was not sufficient First, the evidence adduced at its a border location or at this case took at place the search in did meet its bur- prosecution Inasmuch as functional equivalent. was subject the search this necessary prerequisite, den of proving a search warrant obtain requirement Fourth Amendment stringent an indiscrimi- Second, was used to conduct the dog search. any prior search, at a border site. nate, invalid even which is exploratory requirements by from cause probable exempted Border searches were States,1 and such searchеs are justified of the United the First Congress *Assigned Council. the Judicial Chairperson 29, (1789). 5, 43 Statutes, Large 1 at chapter Statutes States 1 United 26 (Carroll v. United

by the interest States in national self-protection. (1925) 543, 280, (dic- 132 267 U.S. L.Ed. 45 39 S.Ct. A.L.R. [69 790] United tum); Ramsey States v. (1977) 431 U.S. 606 L.Ed.2d [52 however, (dictum).) settled, 97 S.Ct. It is well that border 1972] searches must take at a border at “the place equivalent” or functional (Almeida-Sanchez v. United States (1973) thereof. 413 U.S. 596, 603, (5th United States v. L.Ed.2d 93 S.Ct. Ivey Cir. 2535];

[37 1977) 139.) 546 F.2d The test to determine whether a location meets status functional as a result of a equivalency developed series of automobile searches at locations from a border. Such away searches constituted a substantial invasion of and to that privacy protect from privacy government arbitrariness the developed the func- courts tional standard.2 In order to equivalency of the justify validity case, warrantless search conducted this it was incumbent upon the prosecution to present evidence sufficient to establish that the search site awas border location its equivalent. funсtional Mere proximity alone, of the site to the border does not be emphasized, must justify (United (5th search in the absence of probable cause. States v. Storm 1973) 701, 705.) Cir. 480 F.2d The protections of the Fourth Amend- ment may be relaxed in a area geographical because some merely (United nexus with the has States Bowman border been established. v. (5th 1974) 1215; United States v. Thompson (5th Cir. 502 F.2d Cir. 1973) 1359; 475 F.2d v. Duncan (1974) Cal.App.3d 940 Cal.Rptr. 699].)

Three general characteristics determine whether or not a location qualifies (1) functional equivalency status: the proximity border; (2) checkpoint to the permanent nature of the checkpoint; (United (5th its hours of operation. States v. Hart 1975) Cir. 887, 896; (5th 506 F.2d United States v. Calvillo 1976) Cir. 537 F.2d 158.) then, It is clear the functional label is not one equivalency Calvillo, be United States may bestowed. See arbitrarily supra, States, 160; at page Almeida-Sanchez v. United supra, U.S.

at page L.Ed.2d 596 at pages 600-601].

A perusal of thorough transcript proceedings trial in the case at hand reveals no evidence from which one can con- reasonably clude that or, the Pasha lot car constituted part the border area States, 2 See supra, Almeida-Sanchez 413 U.S. 724; 602-603]; (9th United States v. Anderson Cir. United States v. Ortiz 2585]; 422 U.S. 891 95 S.Ct. States Alvarez- (5th Gonzalez Cir. 542 F.2d 226. testimony The on alternative, of a border. equivalent the functional whom issue, is, three witnesses one of as it was supplied by this such between Officer inspector, dialogue was the customs LaFata. is illuminat- LaFata, prosecutor and the the Defense Williams Attorney official status of the of information as to the on the issue the lack ing Pasha car lot: LaFata, Depart- Customs for the U.S. inspector as an

“Q. Officer lot, are not? ment, you Company familiar with the Pasha are you “A. Yes. J, 244, I it was? Pier Berth believe

“Q. Specifically “A. Yes. sir?

“Q. That lot is is private property, Yes,

“A. it is. Customs, it?—(objec- It “Q. is not U.S. quarantined property record)— tions on the To no. knowledge,

“A. the best of my By There is to the best of your designation, Mr. “Q. Williams: isolat- piece property being as knowledge, concerning particular Customs, ed and is it?— under the control U.S. jurisdiction record)— (objections on

“By Friedenberg: I to the form of the object would Prosecutor uncertain, postеd as whether he means question vague designation office. within the records the customs designation sustained. right “The All Court: By LaFata, postings Officer is there con- any

“Q. Mr. Williams: which it as isolated U.S. Customs designate tained around property property? seen, I none that have no. property,

“A. On that particular LaFata,. “Q. Officer have been notified you by any your superiors or other any personnel in the customs that department that’s—specific property as a ‍​​​‌​‌​​‌​‌‌‌​‌​​‌​​​​‌‌‌​‌‌‌​‌​​‌​​​​​​‌‌​​​‌​‌‍designated quarantine zone for the U.S. Customs? “A. I am not sure I know what mean you zone.’ I by ‘quarantine think that is what is me. confusing All

“Q. Has right. in U.S. anybody Customs the Pasha designated lot as Company that is under the property exclusive jurisdiction of U.S. Customs?

“A. As far as exclusive jurisdiction, I don’t know. We have—we have a section in customs that’s called cargo security, and when com- panies apply imported there, have sit their cargo lots have to be approved, fencing, supposedly guard some sort of security system that would allow them—I believe have to some they post sort of bond also when Now, for this they apply if thing. there is what mean you customs jurisdiction, I yes. agree has been an approved lot for I jurisdiction, it has yes. agree been an lot approved customs jurisdiction for the importation of these cars.

“Q. It has been an approved lot? “A. To the best of I am not my knowledge, yes. that cargo security officer, Iso don’t know.”

The testimony of Customs Patrol Officer Cleveland on the issue of the status of the Pasha car terminal was equally unenlightening:

“Q. lot, Pasha are Company familiar you with that area? Yes,

“A. I am. Have you ever been “Q. called upon over there go and conduct searches?

“A. Called upon. We do them routinely.

“Q. Through Pasha lot? Company

“A. Yes. private property? Is that

“Q. Yes,

“A. it is. it

“Q. quarantined? Is It is under the area. security is It is a customs “A. It a bonded area. auspices of customs. that?

“Q. you What do mean It Okay. with the of customs. graces “A. It exists as a terminal and, know, be you regulations with customs is—they comply have to know, customs, reasons.” security for customs you available insufficient in similar is testimony This and other specific testimony of the border as a part the Pasha lot Company view establish my fact, “with graces which exists In a “terminal” entry. point equiv- the “functional to fall into likely appear customs” would more But, event, the evidence falls short of a status. in that alent border” of the location is either the permanency that there establish nothing operation. or its hours of an established checkpoint as on prosecution sparse supplied It seems these facts clear that its carry insufficient to lot are of the Pasha issue of the status legal of herein oc complained and seizure the search proof burden of is the functional which location or at a at a border location curred reasonably strategically The car lot of the border. equivalent however, pre basis of the on the search purposes, site for customs good be record, my judgment cannot this location the search at sent Amend Fourth requirement cause the probable insulated from supra, Storm, United 705; 701, F.2d United States 480 (See v. ment. v. Alvarez-Gonza supra, Ortiz, Statеs United 891; States v. 422 U.S. supra, Calvillo, supra, lez, States 537 F.2d United 226; v. F.2d supra, States, v. United 413 U.S. Almeida-Sanchez 158; 1976) Martinez (5th States Cir. 602-603]; United v. L.Ed.2d Brignoni-Ponce (1975) 422 U.S. 873 States 954; F.2d 2574].) S.Ct. L.Ed.2d expandable are perimeters nation’s it is true

Although the customs auspices under whether of a border search purposes or the authority authority, upon pros- is incumbent immigration inference, prove, ecution to rather than leave to that the area in which a Marsh v. United States occurs, (See search meets border status criteria. (5th 1965) 317, 325; (5th United States McDaniel Cir. 344 F.2d Cir. den. 413 cert. U.S. 919 otherwise, 3046].) S.Ct. Were it searches on less than reason- able cause would be at permissible any location within close proximity to national any frontier.

II Although is that the are generally recognized borders elastic and unfettered, at is right search border almost the Fourth (See Amendment is requirement reasonableness not emasculated. States v. Yee How (N.D.Cal. 1952) Ngee 105 F.Supp. 519.) Although border searches we the usual “stretch Fourth may McDaniel, cause,” United States Amendment standard probable 129, 133; supra, cert. den. U.S. by requiring warrantless searches upon be based rather “reasonable” than “probable” cause, customs promiscuous officers may engage searches. The facts adduced in this case establish that a prohibited promiscuous search occurred.

The search and seizure of which appellant as complains occurred a result of the prowess of olfactory a canine named Hum- Humphrey. on phrey, December was taken by James who was McCauley, as a employed detector handler dog by the United States Customs Ser- vice to Beach, the Pasha car lot on Pier J in Long California. had been trained use his Humphrey keen sense of smell to detect the odor of marijuana and hashish. The Pasha lot is a location near the Long Beach at port which cars into the United imported States are stored. It is owned privately property secured by chain link fence. Without a search warrant and without any specific suspect reason to the presence contraband, of any drug Mr. McCauley had Humphrey sniff each of the 66 cars for the compound purpose detecting car, any drug Maserati, contraband At the 66th present. Hum- phrey “alerted” at the underside of the biting car. scratching Mr. McCauley immediately Inspector contacted Customs Officer Joe LaFata.

The two men and Humphrey again approached Maserati and again alerted. Officer LaFata at Humphrey this drilled one or point two Thereafter, conduct- car. he into the frame of the holes one-eighth-inch drill, which adhered to the test brown substance ed a field on a tetrahydrocannibinol, for the substance result obtaining “positive” used hashish. marijuana ampoule ordinarily present which was then transported The vehicle to conduct test was discarded. House, Terminal Island Customs where stores area of the public and, re- a floor subsequently, plate of the car was searched

interior seat of hashish was pounds from beneath the rear and eight moved in a exposed compartment. issued for. Defendant’s motion search warrant was ever or applied

No evidence was denied. suppress procured one, without These facts reveal that not but three searches occurred First, the a search warrant. excur- prior procurement olfactory the of view, did, a search was ex- Humphrey sion of in constitute which my People v. Evans Cal.App.3d in In accord is ploratory nature. a case similar to the instant case. Cal.Rptr. 436], factually case, the Evans in without antecedent informa- agents

Federal acting at a location without a marijuana tion that was miniwarehouse and the marijua- search warrant used detector sniff out location of dogs The court “. . .such with canines conducted na. held that: a search contra- strong suspicion without some that preknowledge reasonably is a is to be in a location particular constitutionally band found suspects’ expectations priva- reasonable of impermissible invasion (At violation of the Fourth Amendment.” cy consequently v. Williams 933.) (1975) 51 in p. Similarly held the "activities of two sheriffs at the court Cal.Rptr. 253], unreasonable, an search. an airline constituted ‍​​​‌​‌​​‌​‌‌‌​‌​​‌​​​​‌‌‌​‌‌‌​‌​​‌​​​​​​‌‌​​​‌​‌‍exploratory terminal notice or knowledge without a search warrant and without Acting the had dog, the of narcotics two sheriffs the detector possible presence Bourbon, area sniff at the baggage staging miscellaneous baggage indi- gave had to be. When the an alert they dog where no permission them marijuana, they opened baggage cating presence clear, did The court not make then identified and arrested owner. however, was the rather sniffing whether the conduct impermissible into the without reasonable baggage than the warrantless intrusion than cause other Bourbon. 1976) v. Solis (9th States Cir. 536 F.2d United

The case of constituted a reason- dogs the use of detector which the court held that Solis, instant case. In from distinguishable able search clearly sniff used detector Blue and Baron to the air government agents dogs However, officers were directed to this specific around the trailer. with trailer to the effect that a white semitrailer a white by information license at a station contained paper plate parked specific gas marijuana. that the use of the in this situ- Appeal dogs The of the Court of holding investigation ation was reasonable articulated recognition (At toward contraband. particular not indiscriminate but directed solely (2d 882.) 1975) 521 F.2d 461- v. Bronstein Cir. p. United States 1121], 96 S.Ct. United cert. den. 424 U.S. 1003, 1005, 1007, (10th 1977) Venema Cir. 563 F.2d States v. 748, 749, likewise, (D.C. 1974) Cir. 498 F.2d v. Fulero States specific prior officers acted upon were cases in which law enforcement upon specific objective suspected and concentrated information in- searches as exploratory contraband. were not They containing stant case. of United upon authority relies majority opinion part was, (1st 12, inasmuch as it unlike

States v. Race Cir. Bronstein, Race, Fulero, a case. In an port entry expert Venema and made an search of exploratory handler a detector dog using dog Airport. warehouse located at Logan crates at the American Airlines crates, a knife at two the inserted agent to the alert Subsequent dog’s on the knife detected the odor of marijuana into one of the crates and himself, crates, was ap- identified having blade. The of the consignee crates, held the which he was to consent to search proached regarding The appellate consent uncoverd marijuana. have The search after given. the knife was a decide if the use of in did not specifically court Race violated the Murphy assuming [agent] "... Even prohibited search. crates, a ques- knife into one of the the inserting fourth amendment by in the decide, marijuana think exclusion of we do not tion we do not (At (Italics added) 15.) The court rea- p. crates would be warranted.” after consent was given the crates soned that the search of and the con- inspection original of the exploitation was not an consignee Sun v. United Wong рrohibited by taint” primary sent “purged 441, 83 S.Ct. (1963) 471 L.Ed.2d States 371 U.S. 407]. [9 mind, it is in their rationale cited the above authorities With em- Customs States the United use by instant case the in the clear that in Maserati the 1970 surrounding the air to sniff of the dogs ployees within a search constituted drugs, of presence to ferret out order of courts a number It is noted Amendment. Fourth meaning serious any without activity sniffing dog the issue of of have disposed

33 (See, constitutes search. use of dogs of whether the consideration Fulero, Race, su 12; United States v. supra, v. 529 F.2d United States (1973) 454 v. Furman 748; Cal.App.3d 30 People 498 F.2d pra, [106 (1980) 613 101 Cal.Rptr. 366]; and v. Lester [161 held ca the issue and considered For cases which have Cal.Rptr. 703].) Venema, supra, States v. see United search, nine sniffing Bronstein, 459, cert. den. supra, United States v. F.2d (N.D. F.Supp. Ind. and Doe Renfrow v. U.S. persons). search of (involving

What, all, defined as “a govern- after is a search? A search has been has reasonable person an in which a intrusion into area mental (1968) 392 U.S. 1 v. Ohio L.Ed.2d privacy.” (Terry of expectation Court Katz Indeed, the United States 612].) Supreme 96 S.Ct. Stаtes 507], 88 S.Ct. 389 U.S. 347 L.Ed.2d the Fourth has the fundamental element protected by established that to which each expectation privacy per- Amendment is the reasonable (See also, (1967) 387 Camara Court U.S. Municipal son is entitled. 930, 935, 87 1727].) S.Ct. as exploratory In this case the customs officers utilized an Humphrey area their to and scrutinize an con- probe pursuit quest penetrate In cealed visual detection. the truest sense from human or olfactory were its handler dog employed by were Both the they searchers. all the vehicles air subject surrounding United States customs and trace identifi- inspection particularly order detect thorough discover, to expect able reason specific prior molecules so as without of, presence certain articles contraband. case be con- In that of the instant privacy order the expectations is to careful reduced those of travelers whose baggage subject sidered first to es- an or border was essential airport port entry, at of scrutiny herein was the lot which the vehicle involved tablish that car upon stored, herein, was, fact, without such show- a border area. Clearly, Fourth Amendment the ing probable requirements cause sensitive, relaxed, nose dog were of trained of finely use of expectation privacy upon an the owner’s reasonable intrusion search, as use proboscis” just an “uninvited constituted use of a was held telephone of booth monitoring of an electronic device outside (Katz v. an electronic ear. a uninvited Katz to constitute search States, 576, at 352 L.Ed.2d p. 389 at supra, U.S. [19 p. 582].)

34

III in the frame of The when holes were drilled second search occurred intrusion minimal in na The views this act as an Maserati. majority and, therefore, The then majority postulate ture reasonable. in a field test positive pro

minimal intrusion of holes drilling resulting to conduct the more intrusive third vided a reasonable basis which upon and floor re plates search which followed which the car was entered holes in drilling moved. It be that the act of reasonably argued cannot did not a search within the of contemplation vehicle constitute Constitu search and seizure of the federal and California protections (See (1962) 57 Cal.2d 602 Bielicki v. Court Cal. Superior tions. [21 toilet); 371 a to view a v. Rptr. (uncapping pipe P.2d 288] Ruiz Peo hole); P.2d (drilling [304 175] (1964) 224 Cal.App.2d ple Regalado Cal.Rptr. (boring v. 795] and Britt v. Court doors); (1962) 58 Cal.2d 469 Superior holes in hotel (vents toilets).) How can it ever 374 P.2d into 817] is made make sense that a search which is prohibited permissible by “minimál which contraband? The minimal intrusion intrusion” uncovers itself im constitutes an invasion of the to be sphere privacy expected mune from such invasion.

IV The contention prob that a customs needs no warrant agent able cause to search a border or its functional equivalent at site is correct. The that a routine search is implication general, exploratory however, permissible, erroneous. The for customs grossly authority seizures is found in title 19 section of the United States Code3 (United States v. (9th Diamond 1973) Cir. 471 F.2d cert. den. 412 U.S. 932 2751]), requires 93 S.Ct. that customs must be facts which agents possessed form basis for a rea objective sonable suspicion that customs laws are violated before being they may (United States Ramsey, make a search. supra, properly U.S. 606; (5th 1070; United States v. Diemler and Unit 1974) Cir. 498 F.2d ed (5th States 395.) Cir. Daly reasonable violation, suspicion must not be but must be of a customs merely any Diemler, (United States v. United supra; or violation. immigration McDaniel, States 129, 133, 919.) 463 413 supra, F.2d cert. den. U.S. “Any provides: persons 3 Section 482 of the officers or authorized to board or search search, examine, may stop, respective and as as within their dis- vessels well without

35 in the at a location In the searches instant case occurred summary, border status or its has not been shown evidence to by qualify which functional it was that the customs em- equivalent, therefore necessary , meet the of reasonableness the Fourth ployees by standards mandated Amendment. it was mandat- Unless circumstances were exigent present (Chambers a search. ed that sеarch warrant be obtained to prior any (1970) 42 S.Ct. The Maroney 1975].) 399 U.S. L.Ed.2d in record this case that the Maserati on that was property reflects was not, and fenced to The vehicle could open public access. generally therefore, have been before the officers could ob- spirited away tain warrant. This is from a situation different vehicle on a drastically public airport and from situations and highway people where baggage .are on the constantly move.

The prerequisite of a search been warrant has established to judicial assure determination is dispassionate regarding made whether search, there sufficient evidence to to define justify and scope the search. Intrusions a warrant which without constitute a search such as occurred here unless are fall within certain illegal they de narrowly exceptions. fined exceptions One of the includes searches made upon reasonable cause where the circumstances are such the procure ment of a search warrant would be impractical. prosecution has no such made has relied and the assertion that this showing solely upon search fell within the border search the Fourth exception to Amend ment requirements. Inasmuch as Mr. was McCauley randomly seeking to discover any which present contraband have been and since his may was attention not focused upon any particular vehicle for any specific reason, warrantless search was unreasonable therefore illegal.

All evidence procured prosecution direct fruit by should, knowledge therefore, of that gained reason by illegality States, been have Sun v. United suppressed. (Wong supra, U.S. 453]; v. Edwards 71 Cal.2d P.2d 713].) tricts, vehicle, beast, any person, or on which they suspect or whom or he shall there is subject duty, which is merchandise States bjr, or shall have been introduced into the United law, any in manner contrary possession whether person ‍​​​‌​‌​​‌​‌‌‌​‌​​‌​​​​‌‌‌​‌‌‌​‌​​‌​​​​​​‌‌​​​‌​‌‍charge, or or in, beast, otherwise, upon or such or any vehicle or еnvelope, to search trunk or found, wherever dise which was have may suspect which he a reasonable there cause to is merchan- law; imported contrary any and if officer or person such other so or vehicle, beast, shall find any any authorized in merchandise on or about person, such or any such trunk or envelope, which he shall have cause to reasonable believe is sub- States,

ject duty, unlawfully or to have been introduced into the whether in, vehicle, beast, person possession otherwise, charge, by, upon or or or such shall seize and secure the for trial.” same he harmful our borders against we must be zealous in

Although securing harmful against zealous in protecting we must be equally importations, case of The principles. Fourth Amendment upon internal incursions 1012, which students in school Renfrow, supra, F.Supp. Doe v. up dog walking a sniffing to the search of subjected were promiscuous dog’s continued upon nude search of student based aisles we must alert, guard. which against excesses graphic example to dismiss be reversed with directions should judgment action.

Case Details

Case Name: People v. Matthews

Court Name: California Court of Appeal

Date Published: Nov 13, 1980

Citation: 169 Cal. Rptr. 263

Docket Number: Crim. 36420

Court Abbreviation: Cal. Ct. App.