People v. McGrewPeople v. McGrew
Lead Opinion
Opinion
The People appeal from an order of the San Diego Superior Court dismissing felony charges against defendant Kenneth T. McGrew.
McGrew was charged by indictment with transporting marijuana (
McGrew brought a new, securely locked footlocker to the United Airlines freight service at the San Diego airport in the afternoon of June 25, 1967, to be shipped to San Francisco. The freight agent, one Dowling,
After McGrew paid for the shipment and left, Dowling called his supervisor, who told him to open up the footlocker to see what it contained. Using a nail and hammer to knock out the hinge pins, Dowling opened up the locker “a couple inches,” just “enough to see what was in there.” He observed several bricks or small packages, wrapped in brown paper or newspaper. He could not see the contents of the packages and he did not open any of them. He closed the lid of the footlocker and after calling his supervisor again, called the police.
San Diego Police Officer Burgess came, and Dowling “told him what had happened, and he said he would like to see [the locker].” Dowling “took him back and opened it up and showed him” the footlocker. The officer removed and inspected one of the packages. A federal narcotics agent then arrived, removed and examined the packages, and decided that the packages contained marijuana.
Dowling notified other airlines about McGrew and the shipment. About 8 p.m. McGrew brought a blue footlocker, which he said contained books and dishes, to the Western Airlines freight service, where it was received by the freight clerk, one Case, who wrote up the airbill, and accepted the footlocker from McGrew. A fellow employee named Sweeney called United Airlines to tell them about the footlocker. The federal narcotics officer involved in the United Airlines transaction and two other officers went to the Western Airlines freight office. The footlocker was closed and locked. The federal narcotics agent “detected an odor of marijuana” by compressing the top of the footlocker and asked Sweeney and Case to open it, although they “were under no obligation to do so.” Sweeney and Case opened the footlocker, on the suggestion of one of the officers, by knocking “the hinge pins out of the rear,” using a hammer and nail. Sweeney opened up the lid, and the federal agent removed and opened the packages, which were
About 11 p.m., McGrew returned to the Western Airlines counter, purchased a ticket for San Francisco, and checked a suitcase-. Case notified officers and told them that he had last seen McGrew walking through the terminal in the direction of- the restaurant. The officers, Case and Dowling, went to the restaurant and found McGrew sitting at the end of the counter. Both Case and Dowling identified him, and the officers placed him under arrest. An officer found a Western Airlines baggage claim ticket in searching the person of McGrew. The officer returned to the Western Airlines luggage counter with the baggage claim ticket and secured the suitcase. Fie opened it and found marijuana.
The United Airlines employee, Dowling, testified that at the airlines training school he had been instructed that “we had the right to inspect shipments”; that an agent could open “anything that arouses your suspicions”; that the concern of the airlines was for “aircraft safety,” for improperly declared goods going at a cheaper rate, and for overvalued goods, such as a TV set claimed to be good but in fact with “the picture tube . . . kicked in.” Fie could not recall being instructed to check to see whether contraband was being shipped.
He testified in connection with the McGrew search that he was not concerned about aircraft safety or rate structures; that when he opened up the locker he was looking for one thing, to determine whether marijuana was contained in the locker. He did not, however, smell marijuana before opening the locker.
He further testified that in searching the footlocker he was following his orders to assist the police; that he suggested and furnished ballast to the police in response to their inquiry about fill, to weigh down the emptied footlocker and that in so doing he was following his orders to assist the police; that before the McGrew incident, he had opened two other footlockers,- in the presence of the police, having obtained the combination to the locks from the police; that he found contraband in the two lockers, and that he knew of two other footlockers having been opened by fellow employees, in which contraband was not found.
The People stipulated that the officers did not have a search warrant for either search.
The trial court found that the United Airlines employee, in opening the footlocker, acted solely for police purposes and in response to police suggestion, and in reopening the footlocker in the presence of the police, acted solely for police purposes; that the information obtained from
We find it unnecessary to determine whether Dowling, the United Airlines employee, must be considered an agent of the police in opening the footlockers because, even assuming that he was not, the subsequent searches by law enforcement officers or at their express and specific direction (cf. Stapleton v. Superior Court,
People v. Marshall,
The exceptions to the requirement of a search warrant, aside from searches incident to an arrest, are where there is a danger of “ ‘imminent destruction, removal, or concealment of the property intended to be seized’ ” or where the evidence is in plain sight, which “is, in fact, no search for evidence.” (People v. Marshall, supra,
Our decision in Marshall is not limited to dwelling houses. The Fourth Amendment protection of “effects” includes securely closed footlockers shipped through common carriers. Neither the language of the Fourth Amendment, nor of any of the cases interpreting the protection of that amendment, suggest that warrants apply to “houses” but not to “effects.” The exceptions to the requirement of a warrant are based on circumstances and not on categories of items. The requirement of a warrant, unless otherwise excused, applies to whatever is protected by the Fourth
None of the exceptions apply to the United or Western Airlines searches of the footlockers. When the footlocker checked with United Airlines was searched by the police, McGrew “was neither present nor arrested until several hours after the search.” (People v. Marshall, supra,
The evidence was not in plain sight, since both lockers were closed when the police arrived, and the marijuana was wrapped in packages. “It is inherently impossible for the contents of a closed opaque container to be in plain view regardless of the size of the container or the material it is made of. A search of the container is necessary to disclose its contents. A search demands a search warrant.” (People v. Marshall, supra,
The People contend that by shipping the footlocker with a common carrier under a “contract,” the receipt for the goods shipped which refers to but does not contain an inspection clause,
The People argue in effect that any waiver of Fourth Amendment protection, for whatever limited purposes, results in a waiver for all purposes. This contention was rejected in Corngold v. United States,
Corngold relied on Stoner v. California (1964)
In Corngold v. United States, supra,
Stoner and Corngold recognize that the scope of consent to an invasion of privacy depends upon the circumstances. Other cases involving implied limited consent to an invasion of privacy make clear the significance of the circumstances. Thus, in United States v. Blok (1951)
That privacy is not an absolute concept, but depends upon the circumstances, was made clear by People v. Edwards,
The same standard of reasonable expectancy used to determine zones of privacy determines the extent of implied consent to invade an individual’s privacy. The hotel guest may reasonably expect a maid to enter his room to clean up, but absent unusual circumstances he should not be held to expect that a hotel clerk will lead the police on a search of his room. Similarly, in the instant case, McGrew might have expected that an airlines employee would inspect where a danger or inconsistency was observed, but he could not reasonably be expected to anticipate police searches for contraband. He may not be held to have consented to searches by police officers totally unrelated to the interests of the airlines in the hope that contraband may be discovered. (Cf. Parrish v. Civil Service Com.,
It is also urged that the police search was nonetheless lawful, because the police reasonably and in good faith believed that the airlines employee could authorize a search of McGrew’s luggage. The contention is without merit.
The rule governing searches based on consent by a third party was stated in People v. Hill,
The good faith mistake rule does not, however, apply where the third party makes clear that the property belongs to another. (E.g., People v. Cruz,
Moreover, the good faith rule does not apply where the relationship of the third party and the defendant makes clear that the defendant has not authorized the third party to act as his agent. Thus, in Stoner v. California, supra,
The language and the rule of Stoner apply equally to the instant case: The police knew that someone had attempted to ship a footlocker which the airlines employee believed contained marijuana. They had no reason to believe that the shipper had authorized the employee to turn the trunk over to the police. Nor could the police rely on the right of the airlines to inspect goods shipped. As pointed out above, the consent to inspection by the airlines was limited to consent for inspection for the airlines’ own purposes.
We conclude that the trial court properly suppressed the evidence obtained by the police searches of the footlockers.
It is also urged that, apart from the evidence furnished by the police searches, the officers had probable cause to arrest McGrew when he was found in the restaurant and that the search of his suitcase obtained from a Western Airlines clerk was a valid search incident to that arrest. However, apart from the matters learned from the police searches, the only
Since the evidence secured by the police searches must be suppressed, there is not sufficient evidence to hold defendant for trial.
The order appealed from is affirmed.
Traynor, C. J., Tobriner, J., and Sullivan, J., concurred.
Notes
The federal narcotics agent testified, Burgess did not. Dowling’s testimony concerning the actions of Burgess is not challenged.
People v. Teale,
The inspection clause on which the People rely is contained in C.A.B. regulations and states only: “Inspection of Shipments All shipments are subject to inspection by the carrier, but the carrier shall not be obligated to perform such inspection.” (Rules and Regulations, Issued November 8, 1967, C.A.B. No. 96, rule No. 24.) The basis for imputing knowledge of this rule is the rapid airbill (a receipt) which states in part on the back (in gray type): “2. It is mutually agreed that the shipment described herein is accepted . . . subject to governing classifications and tariffs
Dissenting Opinion
I dissent.
When the defendant arranged for the shipment of his footlocker he signed a “rapid airbill” which stated as one of the “conditions of contract” that it was accepted subject to governing classifications in effect on that date and filed in accordance with law. One of the Civil Aeronautics Board rules
In People v. Edwards (1969)
To deny the airline through its employees a right of inspection when they doubt, for any reason, that a package contains the objects represented by the shipper to be therein, results in compelling the airline, an innocent third party, to blind itself to reality and thus to assist the defendant in his illicit commercial enterprise of transporting marijuana. This is the unfortunate result of the majority opinion.
The majority lean heavily on Corngold v. United States (9th Cir. 1966)
It was not a law enforcement agency but Dowling who notified other airlines about the defendant "and his shipment. Pursuant to that warning Western Airlines employees Case and Sweeney observed the defendant’s footlocker and called United to report. Fortuitously the police had then arrived at United and they proceeded from there to the Western offices. They noted the footlocker pointed out to them by the Western employees and could readily detect from it “an odor of marijuana.” This justified the subsequent search and seizure. (See my dissent in People v. Marshall (1968)
As this court recently held in People v. Superior Court (1969)
Since the airline employees had a legal right to inspect the footlockers, I can see no impediment to their advising the police of the presence of contraband and to the police taking possession of and making evidentiary use of the contraband displayed to them. Indeed, that was the precise situation in People v. Superior Court (1969) supra,
As the majority concede, People v. Hill (1968)
I would hold the searches were valid, the suppression of evidence erroneous, and the defendant should be required to stand trial in order to ascertain his innocence or guilt.
McComb, J., and Burke, J., concurred.
This is not demonstrably certain from the evidence offered on this subject by the prosecuting attorney.A copy of C.A.B. regulation No. 96 (Exh. 10) and a copy of United Airlines Tariff rules (Exh. 11) were received in evidence. The former became effective on August 1, 1967, and the latter on December 8, 1967. The offense charged in this case took place prior to both dates: June 25, 1967. However, Dowling testified Exhibit 10 was similar to pages used by him in his daily work, and the prosecutor represented to the court “that is the actual regulation that was in effect at the time we are interested in.” Defense counsel objected on numerous grounds to the admission of Exhibit 10, but he did not challenge the prosecutor’s representation. The court must have accepted the prosecutor’s statement as being factual for the exhibit was received in evidence; had it related only to dates subsequent to June 25, 1967, it would have been irrelevant.