*1 No. 13413. In Bank. Dec. [Crim. 1969.] PEOPLE,
THE Plaintiff and Appellant, McGREW,
KENNETH T. Defendant Respondent.
Counsel Keller,
James Bein, Don District and Richard H. District Attorney, Deputy Attorney, for Plaintiff and Appellant. H. Chula for Defendant and
George Respondent.
Opinion
PETERS, J. The People from order of the San appeal an Superior Diego Court McGrew. dismissing felony charges defendant Kenneth T. against
McGrew was charged by indictment with marijuana transporting Code, (Health & Saf. and with for sale § possession marijuana (Health Code, & 11530.5). Saf. After both charges § pleading guilty trial, and McGrew moved trial court all waiving jury to suppress evidence (under Code, 1538.5) and charged offenses Pen. § (under Code, dismiss 1385). were indictment Pen. Both motions § granted. have appealed. new,
McGrew the United locked footlocker to brought securely Airlines service at the San in the afternoon of June freight Diego airport 25, 1967, to be to San The freight Dowling, Francisco. one agent, shipped had and and a T-shirt shorts wearing walking was observed McGrew alert for on the “to be told him had hair. Dowling’s "‘quitelong” supervisor been on, had shipping that they and so and footlockers people, suspicious is in contraband, what to “See . . check out marijuana, suspected Dowling suspicious, . . call the there, if it . police.” is marijuana locker, because the “general appearance,” because of McGrew’s clothes, “exceptional books and contained which McGrew declared the weight admitted although Dowling weight” pounds, books. clothes one-third two-thirds consistent with a shipment left, called Dowling for the After paid what it contained. to see the footlocker who told him to up supervisor, open Dowling up the hinge opened to knock out pins, a nail and hammer Using He what was in there.” inches,” to see “enough just the locker “a couple *4 or in brown paper bricks small wrapped observed several packages, he did not the and contents of packages He could not see the newspaper. and after calling the the lid of footlocker of them. He closed open any the called again, police. supervisor what had came, “told him and Dowling
San Police Officer Diego Burgess “took Dowling and he said he would like to see locker].” [the happened, officer The him” the footlocker. him back and it and showed opened up then federal narcotics agent removed and one of the A inspected packages. the arrived, and decided that pack- removed and examined the packages, fill, down officers about to weigh contained The ages marijuana.1 inquired footlocker, ballast and and furnished ballast. the the Dowling Using emptied San the locker for one brick of the officers marijuana, repacked Francisco. About and the notified other airlines about McGrew
Dowling shipment. books footlocker, contained a blue which he said brought p.m. service, dishes, the where it was received Airlines freight Western clerk, airbill, and Case, the the freight accepted one who wrote the up called Sweeney from A fellow named McGrew. narcotics United Airlines to tell them about the footlocker. federal officers transaction and two other officer involved in the United Airlines went The footlocker was closed freight Airlines office. Western locked. The federal narcotics “detected an odor of agent marijuana” by of the footlocker and asked and Case to compressing top Sweeney it, “were under no do they obligation to so.” although open and Case Sweeney footlocker, officers, on the one of the suggestion opened by knocking rear,” hinge “the hammer and nail. pins using Sweeneyopened up lid, federal removed and agent and the opened packages, which were testified, Dowling’s agent Burgess testimony did con 1The federal narcotics not. Burgess challenged. cerning actions of is not in the same was then The footlocker repacked in brown wrapped paper. with United Airlines. manner as one checked counter, Airlines About 11 McGrew returned to the Western p.m., notified Francisco, a suitcase-.Case a ticket San and checked purchased through seen McGrew walking officers and told them that he had last officers, Dowling, Case and restaurant. The terminal in the direction of-the the counter. end of sitting went to the restaurant and found McGrew him, him Both Case and identified and the officers Dowling placed under An claim ticket arrest. officer found a Western Airlines baggage the Western of McGrew. The officer returned to searching person ticket and secured the Airlines counter with the claim luggage baggage it found suitcase. Fie marijuana. opened the airlines that at Dowling, United testified Airlines employee, inspect that “we had school he had been instructed training that arouses that an could your suspi- “anything open shipments”; “aircraft was for cions”; of the airlines safety,” the concern rate, for overvalued at a declared goods going cheaper improperly “the tube but in fact with picture such a TV set claimed to goods, good check see whether instructed to . . in.” could not recall being . kicked Fie contraband was being shipped. *5 not con-
He testified in connection with the McGrew search that he was structures; cerned about aircraft or rate that when he safety opened up the locker he was for to determine whether marijuana looking thing, one not, however, was contained in before the locker. He did marijuana smell the locker. opening
He his further testified that the footlocker he was in following searching orders to assist the that he and furnished ballast police; suggested fill, to their about to down the police inquiry weigh emptied response the footlocker and that in he was to assist so orders following doing incident, that before he had two other police; the opened footlockers,- the combination in the of the obtained having presence police, lockers, locks from the that he found contraband in the two the police; fellow he knew of been that two other footlockers having opened in which was not contraband found. employees, for The did not have a search warrant that the officers People stipulated either search. the United Airlines
The court found that the employee, opening trial footlocker, police acted for response solely police purposes of the police, footlocker in the and in presence suggestion, reopening from obtained information acted solely police purposes; the United Airlines search led the search of the footlocker at West- Airlines; that the the foot- ern Western Airlines who opened locker acted and at the of the solely request police; police purposes warrant; that the had no there sufficient time obtain a warrant; defendant and that arrest of the resulted directly from searches of United and Western footlockers. court concluded that unlawful, unlawful, both searches arrest was were and all evidence should be suppressed.
findWe it to determine United unnecessary whether Dowling, Airlines must be considered an of the employee, opening because, not, footlockers even that he was assuming subsequent searches law enforcement officers or their and specific express Court, direction (cf. 70 Cal.2d Cal. Stapleton Superior 967]), P.2d unlawful and the be were evidence must Rptr. suppressed. Marshall, 69 Cal.2d Cal.2d with makes clear that certain exceptions, cause . to believe that “a search will reveal contraband . . does
probable cause, search justify without warrant.” Where there is probable obtained, warrant still absent must an for a search not emergency, incident ato valid arrest even a warrant would not be needed for a though Harris, search incident arrest. 682- (E.g., 225].) P.2d warrant, of a aside from exceptions requirement “ arrest, searches incident to an are where there is a ‘imminent danger destruction, removal, or concealment to be intended property *6 ” “is, fact, seized’ where the evidence is in which no sight, plain Marshall, 56-57, (People for evidence.” v. supra, 61.) 69 Cal.2d Our decision in is Marshall not limited to houses. The dwelling Fourth Amendment of “effects” includes closed foot protection securely lockers of through common carriers. Neither the the shipped language Amendment, Fourth the nor of the cases any protection interpreting amendment, that that “houses” but not to suggest warrants to apply “effects.” The are based on of a exceptions warrant requirement warrant, a circumstances and not of items. The on categories requirement the Fourth excused, is unless otherwise to whatever applies protected (See Amendment. v. United (1967) States 356-357 U.S. Katz 88 S.Ct. [19 507].2
None of the the Western Airlines to United or exceptions apply searches of with United the footlockers. When the footlocker checked Airlines was searched McGrew “was neither nor the police, present Marshall, supra, (People arrested until several hours after the v. search.” 51, 61.) when the whereabouts were unknown similarly His was there footlocker checked with Airlines searched. Nor was Western likelihood the be removed or the contraband destroyed; lockers would both Both footlockers footlockers were of the airlines. in the safely custody basis, were not been that the airlines on a available” so shipped “space a warrant even before under a footlockers obligation contractual ship could be obtained. were closed when lockers
The evidence was
since both
plain sight,
“It is
arrived,
marijuana
packages.
wrapped
be in
container
a closed
for
contents of
inherently
opaque
impossible
made of.
it is
the material
view
of the size of the container or
plain
regardless
A search de
contents.
A search of
container is
to disclose its
necessary
59;
Marshall,
at
Cal.2d
p.
v.
(People
mands a search warrant.”
Hawkins,
v.
see
533-534
also
Cal.
Cal.App.2d
People
Roberts,
411 Amendment that would otherwise attach to closed and secure protection footlocker, and consented to the search the airlines impliedly police. in argue effect that waiver of Fourth Amendment protection, whatever for limited results in waiver all purposes, States, Corngold purposes. This contention was in v. United 367 rejected 1, 7, F.2d also a search of an airlines involving baggage through shipped service. freight Corngold relied Stoner (1964) on v. U.S. 489 [11 California 856, 861,
L.Ed.2d 889], 84 S.Ct. which contention rejected consent of implied access for results consent for all any purpose “It true . . when a he purposes: . hotel room person engages maids, undoubtedly to ‘such gives ‘implied express permission’ persons janitors or to enter his room ‘in the of their duties.’ repairmen’ performance But the conduct of clerk and the night [Citation.] present case was of an different order.” entirely States, Corngold
In United the court ruled that 367 F.2d did not abandon his and mere of “Appellant custody surrender package; a carrier did not . . forfeit . appellant’s privacy. [Citations.] tied, Appellant’s delivered to the airline package, securely wrapped York, solely from Los to New transportation Angeles clause in TWA’s tariff authorized examination the carrier itself.” only by (367 F.2d at pp. 7-8.) Corngold
Stoner and
that the
an invasion
recognize
consent to
scope
circumstances. Other cases
privacy
depends
involving
upon
implied
limited consent to an
invasion
make clear the
of the
privacy
significance
Thus,
circumstances.
in United
States
Blok
188 F.2d
(1951)
326],
D.C.
searched the desk of
App.
court,
unlawful,
“No doubt a
employee;
the search
stated:
holding
if
her
been reasonable
without
consent would have
[the desk]
made
some
in some circumstances. Her
official
might
people
superiors
have searched the desk for official
needed for official
reasonably
property
cert,
also,
(See
Cunningham
(9th
use.”
Cir.
F.2d
Heinze
denied,
[
That is but not absolute concept, depends upon privacy Edwards, 1096, Cal.2d stances, made clear v. was by People [80 713], was where contraband in trash P.2d Cal.Rptr. receptacle held against although, by placing searches by police, protected waived defendants would have contraband in a trash receptacle, was claim was as to the The issue it trash collector. pointed privacy will from the intrusive reasonable be preserved expectancy property of others. scrutiny zones of to determine
The used same standard of reasonable expectancy invade an individual’s the extent of consent to determines privacy implied room maid enter his hotel reasonably The guest may expect privacy. held to he should not be expect clean but absent unusual circumstances up, Similarly, that a hotel clerk will lead the on search of room. police case, that an airlines the instant have employee might expected observed, could but he where a or inconsistency would inspect danger for contraband. He not searches to anticipate police reasonably expected be held consented to searches officers totally not to have may police bemay airlines in that contraband unrelated to the interests of the the hope Com., (Cf. Parrish Civil 66 Cal.2d discovered. Service 223].) 425 P.2d lawful, because the It search was nonetheless is also that the urged that the airlines faith believed police reasonably good without The contention is a search of McGrew’s luggage. could authorize merit. third on consent aby rule searches based party governing Hill, 69 Cal.2d
stated 68, 90 S.Ct. U.S. 818 certiorari 112]: granted of a third with the consent party unreasonable if made search “[A] faith believe has authority and in good whom reasonably rule is “reason word .. consent to their search ..” operative or access evidence of control thus, joint be some objective there must ably;” would indicate that the which person items to be searched places Hill, the search do has so. authorizing (E.g. authority 554-555, consenting cases collected [visitor P.2d People Gorg, 45 Cal.2d 469] apartment]; *9 413 [owner; Linke, 297, room]; of boarder’s 265 Cal.App.2d Gamer, [cotenant]; 315 People v. 234 [71 Cal.App.2d 371] [wife; 230 [44 husband’s Cal.Rptr. 217] property].) not, however, faith mistake where the third good rule does apply makes clear party that the to another. (E.g., property belongs Cruz, [guest [40 889] could not- apartment consent to search of boxes and belonging luggage others]; People Egan, Cal.Rptr. 627] could not not consent to search of where made clear [parents bag bag parents’]; Holzhey (5th 1955) v. United States Cir. 223 F.2d cabinet]; could not consent to search of locked Sartain [relatives compare, cert, (9th 859, 862-863, denied, v. United States Cir. 303 F.2d U.S. 894 L.Ed.2d 83 S.Ct. could consent to search of 194] [friend suitcase where attached].) defendant left suitcase with key
Moreover, the faith rule does not where the good apply relationship the third and the defendant makes clear that the defendant has party Thus, California, authorized the third to act as his in Stoner party agent. 376 U.S. 84 S.Ct. Court, in
Supreme that a room clerk could not consent the search holding room, of a guest’s the “claim that the search was reasonable rejecting consent, because the police, relying clerk’s night upon expressions had a reasonable basis for the belief that the clerk had to consent authority search,” stated: in the record to indicate that the nothing “[T]here had basis believe police whatsoever to that the clerk had been night authorized to search the by petitioner permit police petitioner’s (id., room” 860]). L.Ed.2d at atp. p. and the rule of Stoner to the instant language apply equally
case: The knew that someone had police ship attempted had no which the airlines believed contained They marijuana. employee reason to believe authorized the turn the that the shipper trunk over to the on the the airlines Nor could rely police. police above, the consent to As inspect goods shipped. pointed inspection the airlines was limited to consent airlines’ own purposes.
We the evidence conclude that the trial court suppressed obtained searches of the footlockers. police that, furnished
It is from the evidence also urged apart searches, when he cause to arrest McGrew police officers had probable obtained found search of his suitcase in the restaurant that the clerk was a valid search incident to that arrest. from Western Airlines searches, However, learned from the from matters only apart information the had at the time of the arrest McGrew had *10 checked a at Airlines, both United and Western that the one United, checked at when the airline opened by was observed to employee, contain several bricks or small in brown packages wrapped paper and that McGrew had checked a newspaper, suitcase and purchased ticket for San Francisco. of weight the footlocker left with United books, consistent with a of two-thirds clothes and shipment one-third items footlocker, McGrew had to declared be in the and there to nothing indicate observed the United packages were not by employee consistent with entirely books. The fact that had checked wrapped of pieces at three different times with two is not incrimina- luggage airlines ting, and are we satisfied that information obtained the officers apart from their unlawful did not furnish to arrest McGrew cause probable of of the and arrest was unlawful. The search possession marijuana arrest, suitcase not be as incident valid evidence sustained to a may secured it that search was This conclusion makes suppressed. consider whether the search of the suitcase occurred at unnecessary place (Cf. People the arrest and was therewith. contemporaneous Cruz, supra, 861, 865.)
Since the must be evidence secured searches suppressed, there is not sufficient evidence to hold defendant for trial.
The order from is affirmed. appealed J., J., J., Tobriner, Sullivan, C.
Traynor, concurred.
MOSK, J. I dissent.
Section felony 11531 of the Code makes it Health Safety to one any marijuana. section person only transport applies y here, who it defendant but would also arranges shipment, appl airline who any Thus if knowingly employee transports marijuana. an airline believes a reasonably contains a substance the shipment of which is he has the transportation illegal, duty perhaps or container. The of such is not to inspect package purpose act but to as an of the insulate himself from criminal police, culpability.
When the defendant for the his footlocker he arranged signed a stated as of contract” airbill” which one of “conditions “rapid that it was in effect on that date classifications subject governing accepted and filed in rules accordance with law. One the Civil Aeronautics Board that “The carrier has the but not the provides right, obligation, inspect shipments.”1
In
carrier was and books” to the other he “clothing repre- shipping sented was “books and The rates for charged he dishes.” shipping If, false. for those which were any were based on knowingly representations, reason, the airline the contained objects doubted shipments indicated, for he had an to the containers unquestioned right open fact diluted the that contraband This of the airline is not right by inspection. than some
was discovered—which could not be rate—rather any shipped different from be at a rate which could legal perishable commodity, shipped books and dishes. prescribed clothing, when they To the airline its deny right through employees doubt, reason, the objects by that a contains represented package airline, third an innocent therein, the the to results shipper compelling to blind itself to and the in his illicit thus assist defendant party, reality is the unfortunate This commercial marijuana. enterprise transporting result of the majority opinion. Corngold (9th 1966) lean v. United on States Cir. majority heavily Corngold
Since the airline employees of the presence advising can see to their police no impediment making evidentiary of and contraband and to taking possession the police Indeed, was the to them. precise use the contraband displayed in Cal.2d situation Court in (1969) Superior lawto enforce- of a recording which a detective copy tape gave private to trial. evidence prior We declined suppress ment officers. F.2d (9th v. United States Cir. Low To the same effect is Wolf in of the airline the “conduct court found in which the proper defendant’s of the fruits of its search the Government the over to turning making use of suitcases, the Government and the conduct of . . information and evidence obtained the airline’s search. .” 550, concede, (1968) Hill Cal.2d People As the majority if unreasonable a “search is not holds that whom the reasonably made with the of a third police consent party their search . . . .” faith believe has to consent to good authority here, was founded belief was faith since it reasonable and good entirely conferred the airlines shipments upon right legally inspect upon to that made right, their actually pursuant possession, inspections of contraband ineligible reporting discovery legally shipment, of the actual these events to the and the disclosure the police contraband. valid,
I would the searches were of evidence hold suppression erroneous, and stand in order to the defendant should be trial required ascertain his innocence or guilt.
McComb, J., Burke, J., concurred.