*1 Sept. 1972.] Bank. No. 15379. In [Crim. PEOPLE, Plaintiff and
THE Appellant, al., et Defendants Respondents. McKINNON LLOYD GEORGE *4 Counsel Miller, Jr.,
Edwin L. and Keller, James Don District Attorneys, Richard H. and Bein J. Terry District Knoepp, Deputy Attorneys, for Plaintiff and Appellant.
Hecsh, Philbin, & Hegner Michael S. Crake, Hegner, Woolley, & Collins Ward and William O. Ward III for Defendants and Respondents. Opinion
MOSK, J. In this air typical search case we are called freight upon People reconsider v. (1969) McGrew 1 Cal.3d 473, [82 Cal.Rptr. Ca,1.3d 1], 462 P.2d and Abt Superior Court 418 [82 Cal.Rptr. 481, 462 P.2d in the light of supervening developments the law. As will we conclude appear, that the rule of those decisions is no longer followed, and that a chattel to a consigned common carrier for ship- believe it cause to contains be searched may lawfully ment upon contraband. and John Turk were charged
Defendants McKinnon Scott Lloyd George Code, (Health 11531) & Saf. transporting marijuana possession § Code, 11530.5). (Health & Both defendants sale Saf. marijuana § filed motions the evidence on the search ground illegal suppress Code, 1538.5.) motions, (Pen. seizure. court granted dismissed § Code, (Pen. 1385), as to aside charges McKinnon and set the infor- § Code, Code, 995). (Pen. (Pen. mation as Turk The People appeal. § (a)(7).) (a)(1) subds. § examina- on the transcript preliminary was submitted
The matter March testified that on Gos, freight agent, tion. Mitchell an air the United Airlines five cardboard cartons brought and Turk McKinnon he wished McKinnon stated at the San Diego counter freight airport. effects,” Seattle; he the contents as cartons to described “personal ship as “Balboa Company” “L. McKinnon” of name gave Supply assisted and “L. Turk consignee. providing McKinnon” consignor the information entered on bill. air con- before, that the cartons had not either man but suspected seen
Gos left, a fellow Gos asked employee tained contraband. After defendants *5 to the make and car. He obtained note license number their then the for to one of cartons his supervisor’s permission purposes open In of the and other Gos the employees, inspection. presence supervisor on the inside. Beneath some slit the one of cartons and his hand tape put he felt to be of what seemed soft tobacco packages paper brick-shaped carton, the He then the lid of took one of grass. lifted the out packages, contained, it what he to that believed finding pinched open. Upon he the marijuana, police. telephoned call, to Officer State Bureau of Nar- In the the response McLaughlin arrived at the 20 or minutes cotics Enforcement air counter freight bill, a where the cartons later. He looked at the air then entered back room had that had stood on the been The carton Gos inspected open placed. floor; also As it contained a brown which was large bag, open. plastic carton, McLaughlin, the he inside Officer saw number approached in red Each was to 12 packages wrapped cellophane. brick-shaped wide, 2 to 3 Officer long, inches about inches inches thick. McLaugh- the the formed that substance in was opinion lin packages marijuana. to of the He one verified its open contents. proceeded packages, of “L. that a name by next learned McLaughlin passenger Officer due leave for Seattle within flight had a reservation McKinnon” obtained hour. He from two men who had Gos description cartons for the make and license presented together shipment, number of their car. located McLaughlin afterward Officer Shortly lot, car in the and arrested Turk as he entered it. The officer then parking returned to the area and arrested on board a United departure McKinnon Airlines to take off for Seattle. flight waiting after re- arrests Officer
Promptly making McLaughlin opened contained, first, maining four cartons. Each like the 10 identical “kilo” bricks of marijuana, a total of 50. The making parties stipulated that hearing this constituted a “commercial of marijuana. quantity” was defense directed establishing primarily proposition was Gos as an acting agent of the when he first carton police opened presented defendants. Gos five by during testified on four or occasions three preceding years he had for opened consigned packages shipment as air had found freight and in marijuana, that connection had called Officer McLaughlin denied, other law enforcement He how- personnel. ever, that the had police instructed him to ex- such He open packages. plained that virtue of he regulation the Civil Aeronautics Board was entitled to for open and that shipment purposes inspection, so, he does reasons, other among forestall insurance fraudulent claims.1 His only instructions were his his company, directing him to obtain supervisor’s before permission that, after it was com- opening package; pany policy notify if anything found. suspicious he found
Gos testified that it was his if contraband further practice, in a so that when the arrive leave package, package “there is for denied had again no cause search or seizure.” He he illegal Instead, been instructed do so he that in a case explained police. he three earlier had obtained assistance in years inspec opening *6 tion of trunks secured combination Called to locks. pair testify case, he learned that contraband found in the trunks was inadmissible because of the He them. discussed this police opening participation with his rulings similar fellow and thereafter made it his employees, to leave practice that he found any package simply open upon inspection to contain contraband. McLaughlin
Officer took the stand and he had acknowledged talked on various occasions with Gos and other airline but denied employees, testified, ]' get 1(cid:127)Thus Gos “I people coming kinds of over all that counter and kept busy people am sending they equipment tell me are electronic and claim big . - insurance . and it is personal just get . all effects happens insurant?. time, all the ...” leave them open or to any instructed them open packages having ever such employees his sole testified request examination. He for police if agency law enforcement other him or some contact that they promptly the goods or of goods shipping became suspicious person themselves. defense At Durden, a legal secretary. witness was Etta
The sole defense before days few had interviewed Gos Durden Miss instigation counsel’s allegedly research for doing a student paper as hearing, posing She testified of marijuana. the subject preventing transportation agents fellow freight asked him and his had told her Gos and if their suspicions, packages, to “be alert” for persons suspicious aroused, it, they contraband in box and if there is any “they were open Durden, ex- Miss Gos According leave it and call police.” be caused unusual that such appearance plained suspicions individual, odor emanating package, conduct of the a distinctive of the arid weight weight between the or a package discrepancy Miss Durden Finally, have if it contained the articles claimed. would also told her that on a few occasions the asked him testified Gos to be on the lookout named individuals. for particular hear-
After detailed on the the court at arguments preliminary point, of fact that Gos was not as acting agent made ing specific finding when he the carton opened question.2 I without benefit of a Inasmuch Officer McLaughlin proceeded warrant, on the to show justi search the burden was prosecution proper (Badillo Superior search. Court Cal.2d fication P.2d courts below were The record discloses that various rulings case, similar to the of an in a directly closely responsive progress appeal to the People brought v. McGrew. There the defendant a new footlocker United Airlines counter at the San freight Diego airport, shipped one became San Francisco. The on duty, Dowling, suspicious employee because McGrew’s general appearance apparently exceptional locker, books which McGrew declared contained and cloth- weight *7 stated, agent. any 2The court “I am not he is an I haven’t heard evidence satisfied at setting Department any direction Police law here forth that he did it of the agent. very carefully I for that and I listened what he had enforcement listened agent say young say that he is an and what the woman had to and I can’t find agency.” any law enforcement At the ing. direction of his supervisor, by locker Dowling opened Inside, out the knocking hinge he observed several bricks or pins. packages in brown wrapped He closed the lid called paper and newspaper. arrived, officer police. When an Dowling the locker showed reopened him contents. The officer one of the and a inspected narcotics packages, decided agent contained marijuana. The then removed all but one package, them ballast. replacing A few notified other airlines about McGrew and his
Dowling shipment. hours later Airlines brought McGrew second footlocker to' Western counter, freight it contained and dishes. The Western em- saying books alerted the and the Although same narcotics ployees police, agent responded. the locker had not been the lid the detected by compressing agent opened, an odor of At his the airline marijuana. then request, opened employees the locker out hinge The contents were bricks knocking pins. in marijuana brown McGrew was arrested two hours wrapped some paper. restaurant; later in a suitcase he had checked airport was also found to contain marijuana.
The trial granted court McGrew’s motion to evidence on suppress the ground seizure, of illegal search and and dismissed the On the charges. admissible, the Court People’s held the appeal evidence Appeal 378.) (People reversed. v. 1969) McGrew (Cal.App. Cal.Rptr. bar, In case at the magistrate at the relied on preliminary hearing the Court of Appeal decision McGrew in defendants’ overruling objec- tions to the admission of the evidence. marijuana
We
McGrew,
subsequently granted
hearing
Court
contrary
decision,
of Appeal
affirmed the order
(People
of dismissal.
McGrew
an,
(1969) supra,
404.)
1 Cal.3d
court,
In
opinion by
divided
sharply
within,
held that the
search of the
did
footlockers
not fall
of the doctrinal
to the warrant
exceptions
requirement
Fourth
Amendment. A similar
ruling
made in the
case of Abt v.
companion
Superior
Court
supra,
In the case at defendants’ motions to came pretrial suppress after the court McGrew and Abt. hearing shortly decisions of this district advised the court that the facts were deputy attorney candidly McGrew, similar” to those of submitted matter without “quite case was The court attempting distinguish authority. agreed rale of McGrew “1 governed by the. and Abt. am controlled Observing is, be,” the law as it it was or will the court with reluc- apparent tance ruled that the evidence must be suppressed.
907 however, the United States this case appeal, pending While (1970) Maroney 399 Chambers its decision in Court rendered Supreme we con- As we shall S.Ct. explain, 1975]. U.S. challenged here Chambers the evidence the rationale of clude that under search. reasonable was the of a constitutionally product that rule general in McGrew was The basis of the majority’s holding certain concealed in will be found to believe contraband cause probable consensual that is a warrantless search neither does not justify property 409.) arrest, (1 Cal.3d at “absent an p. nor incident to a lawful emergency.” that is an imminent danger Such arises when there an emergency destroyed. the contraband to be searched be removed or property the facts of (Ibid.) The held that majority exception inapplicable McGrew, the lockers 410) “likelihood that (at there was no reasoning p. were would be removed the contraband both footlockers destroyed; Both had been airlines. footlockers safely custody shipped basis, under a on a available’ so that the were not even airlines ‘space contractual could be obligation to footlockers before warrant ship obtained.” As had the officers time to such a warrant but did not procure so, concluded, do their search of the lockers was facto ipso “unreasonable” within Fourth Amendment. meaning Maroney, however,
In Chambers v. the United States Court Supreme that line same in the context rejected reasoning of an automobile search. There a men, service station was robbed two armed eye- witness of their and the car were broad- descriptions appearance getaway cast over radio. Within an hour the robbers’ was stopped vehicle on the highway by arrested, were but the police. occupants car Instead, station, was not searched at the scene. it was driven to the police where a later search revealed weapons incriminating evidence hidden under the dashboard. robbery, convictions of denial of federal after
Affirming corpus habeas the United had (1) States Court held that the Supreme (2) cause to arrest the that search of the defend- robbery, defendants for ants’ car cannot be as an incident because it was arrest justified conducted at a but the search was never- different time and place, theless reasonable because of the characteristic of mobility distinguishing an automobile. The court began possessed property question, 426-]) U.S. at L.Ed.2d at that “In terms of by observing p. search, the circumstances a warrantless the Court has distin- long justifying between an automobile and a home office.” guished The court referred at length to its decision of Carroll v. United States U.S. leading (1925) 267 which L.Ed. S.Ct. it held that because their
90S be searched may movable “automobiles and other
highly conveyances nature with- the search without a warrant in that would justify circumstances office, cause that there is out a warrant of a house or an probable provided entitled to that the car contains that the officers are to believe articles (399 426].) seize.” at L.Ed.2d at U.S. 48p. p. [26 the Chambers After that Carroll remains law living today, emphasizing in the case court faced the whether a different result was question required before it at the time because the officers searched the defendants’ car not but at the station. The distinction later place stopped was held be because of “Arguably, to without constitutional significance: for a immobilization magistrate’s judgment, only preference obtained; car should be until only a search warrant is arguably, permitted the ‘lesser’ until authorizes the intrusion is magistrate permissible But which is itself and which the ‘lesser’ intrusion ‘greater.’ ‘greater’ a debatable and the circum- answer on a variety question depend stances. For purposes, constitutional we see no between on difference one hand seizing holding presenting probable a car cause before magistrate issue to a carrying and on the other hand out an immediate search, search without a warrant. cause to course Given either is reasonable under the . . Fourth Amendment. . The probable-cause factor still obtained at the station house and so did the of the mobility car unless the Fourth Amendment warrantless seizure of the permits car and the denial of its use to until a anyone warrant is secured. In that event there is little to choose practical in terms consequences between an immediate search without a warrant and the car’s until immobilization (Italics added; a warrant obtained.” omitted.) (Id. fn. at pp. 428-429].) L.Ed.2d at pp. [26 whether the rationale of Chambers
In the case at bar we must determine of automobiles and similar should limited to searches self-propelled boats, trucks, trains, reason nor “vehicles” such as Neither airplanes. narrow, Chambers and such mechanistic precedent reading compels based historical its Carroll itself was on the predecessors. example part of warrantless seizures of contraband course of “goods transporta a detailed review tion.” L.Ed. at After U.S. p. p. (at the court concluded early subject, p. statutes 550]) that L.Ed. at with the of the Fourth “contemporaneously adoption we in the first and in the Second Congress, Amendment find following Fourth a difference made as to the for a search Congresses, necessity forfeiture, warrant between when concealed in a goods subject dwelling or similar and like in course of house place, goods transportation concealed in a movable vessel where could be they readily out of put Preston said in the court broadly, Even more a search warrant.” reach of 111, 780, 84 S.Ct. U.S. v. United States course, dictates, involving 881], sense questions “Common *10 readily moved cannot be treated things other of or searches motorcars like houses.” of of fixed structures out searches arising identical to questions (1967) 386 U.S. added.) Cooper (Italics [17 And California the 730, 732, court cited Preston for 87 S.Ct. proposi L.Ed.2d movable” be searched they may because cars are “constantly tion that a the result be might cause but without warrant “although with probable home, store, piece property.” a other a or in search of opposite of fixed (Italics added.) trunk to a common carrier for to a
Is a box or consigned shipment a “fixed remote destination moved” or “thing readily piece property”? sure, answer, such a box has neither is the former. To be self-evidently, are motive but these features of automobile legally wheels nor power; A make it movable its dimensions. relevant insofar as only they despite automobile,, box, of an is mov- which is a fraction of the size weight trunk, as It a box or able without such is also true that appurtenances. automobile, of both serve the double from an distinguished purpose But whenever such them for goods storing packaging shipment. carrier, doubt that it is there can' be no box is a common consigned to intended, fact, to be moved. is true of a box or
What trunk is true of all or chattels goods consigned ato common carrier for As are they no less movable than an shipment. automobile, the reasons for the rule a warrantless search of permitting a vehicle cause are upon search of probable applicable equally such a chattel.3 In the United States Court de- language Supreme cisions, “common sense dictates” that when have cause contraband, believe chattel to a common carrier contains consigned (1) (2) must entitled either they to search without warrant or to. warrant; remedies, “seize” and hold it until can obtain a these absent the chattel will be out of the claimed its owner jurisdiction by shipped us, however, Chambers teaches that in those circum- by consignee. there is difference” between the stances no “constitutional alternatives warrant, without a says thus an immediate search facing police: court, than Chambers is an intrusion on the owner no greater rights obtained, and “either a warrant immobilization of chattel until mail, historically been accorded has apply 3This rule does not to first class which special (See. e.g., United States v. Supreme Court. treatment the United States 284-285, 90 S.Ct. L.Ed.2d Van Leeuwen 397 U.S. 1029].) (399 at Amendment.” U.S. is reasonable under the Fourth p. course at L.Ed.2d p. to the contrary this Finally, reasoning court in McGrew (at Cal.3d), we p. 410 of learn from Chambers there no constitutional relevance to the fact that a chattel to a common carrier—such consigned as the in the cartons case at bar—is entrusted to the temporarily “custody” carrier. In Chambers the defendants’ automobile was seized station; officers and if court at can high impounded does, as it under those circumstances “the car” say, mobility at still obtained the station at house U.S. p. *11 428]), a in the fortiori chattel such as here involved remains “mobile” bailment to a com- constitutional sense its limited and despite voluntary carrier. mon construed, Court in the of the United States
Fairly Supreme reasoning Chambers in thus undermines the foundation of the majority opinions (Evans) McGrew Court 11 (Accord, Superior and Abt. People reasons, McGrew 123].) For these Cal.App.3d Cal.Rptr. [90 and Abt are no to be followed. longer
We are not unmindful of the recent decision United States Coolidge Court in v. New Supreme Hampshire (1971) U.S. 2022]; considered, 91 S.Ct. however, we properly do not that decision to affect of Carroll interpret impact and Chambers on McGrew and Abt.
First, Coolidge is on distinguishable its facts. After a murder arresting house, in his suspect seized his automobile and police searched station, later at the that evidence had finding victim physical been inside the vehicle. a contention that Rejecting there were “exigent warrant,. circumstances” to the search and justify seizure without a valid of Justice Stewart plurality facts: opinion emphasized following case, “In this had known for time of the some role probable of the Pontiac car in the was aware that he crime. was Coolidge. suspect murder, in the Mason but he been throughout had extremely cooperative investigation, there was no indication that he meant to flee. He had had already ample opportunity destroy evidence he any thought There incriminating. is no that, suggestion on the night in question, car was being used for any and it was illegal purpose, regularly parked in the driveway of his house. for opportunity search was thus hardly ‘fleeting.’ The that the objects are assumed have had probable cause to search for in car were neither nor stolen contraband nor. dangerous.” (Id. at p. L.Ed.2d at not
Here, contrast, had “known law enforcement authorities in sharp five cartons contents for some time” of the existence or probable defendants were for defendants shipment; although presented was and one were from the both deliberately fleeing, departing premises of the jurisdiction; out fly on board an already airplane preparing consigned but had were been cartons not resting private property, destination; to a remote to a common carrier transportation III, the cartons (see post) Part there was cause to believe contained not “mere in that they for an being illegal were “used purpose” found these factors specifically but Each of evidence” contraband. standards, own court’s high lacking Coolidge; measured was much more case bar therefore, at to search in opportunity Coolidge. imperative—than action was far more “fleeting”—and prompt Second, B, of Justice (Part Stewart’s II portion plurality opinion 578-581]) 403 U.S. L.Ed.2d at which pp. pp. purports to narrow the Carroll-Chambers rule was event signed by only J., J., Brennan, members (Stewart, four of the court J., and Douglas, Marshall, J.). in the Justice de Although concurring judgment, Harlan *12 (see clined to of join in Part II B id. at 491 L.Ed.2d opinion p. [29 597]), at four p. justices disagreed with remaining expressly (id. 605], Justice Stewart this at at 504 L.Ed.2d dis point p. p. [29 Black, J., C.J., J.; Blackmun, senting opn. id. by joined by Burger, White, 617], 525 at dissenting J., L.Ed.2d by p. opn. joined [29 raised C.J.). It Carroll-Chambers issue follows that the by Burger, by fact an in was in considered by Coolidge equally plurality opinion doctrine, court, settled was decided: under actually divided and hence not “is Court United Supreme an divided States of judgment equally 263, 264 364 U.S. (Eaton (1960) v. Price force without as precedent.” bound to 1709, 1463].) we are 1708, apply Thus 80 S.Ct. [4 of its understanding our the Carroll-Chambers rule present according scope.
II us, facts before we find it to the of the case undisputed Turning a that the was a chattel common carton Gos opened by consigned therefore, is whether there carrier for The dispositive question, shipment. contraband. to believe the carton contained cause probable himself with, airline employee To it is not begin necessary as a acting is with chargeable such cause unless he have not acting conduct of person “The agent shipment. opening of a authority under state the Fourth or Fourteenth proscribed by Amendments of federal There are no state Constitution. standards for ‘search and seizure’ citizen who is not as an private agent by acting Therefore, of the state or other unit. governmental acquisition property be citizen from another cannot deemed reasonable private person or unreasonable” within of the constitutional provisions. the meaning 123, (People (Smith) (1969) v. Court Superior 70 Cal.2d 128-129 [74 294, cited.) airline 449 P.2d and cases an em- Whether Cal.Rptr. fact, course, but is, acts agent as an of the police question ployee related cases.4 some have decisions in guidelines emerged reported First, it is evident that the conduct of an airline who was employee hired and paid by to search all packages suspicious in the hope evidence of crime finding would be Fourth judged Amendment (People standards. v. (1955) 590, Tarantino 45 Cal.2d 505].) P.2d The same would true of the conduct an airline who, in the employee although not actual hire of the nevertheless police, participated planning implementing “joint law operation” enforcement authorities evi purpose obtaining incriminating dence against a (Stapleton Superior (1968) Court specific person. Cal.2d 967].) 447 P.2d And Cal.Rptr. though even he had no prior with the airline would arrangement police, employee be deemed to act as an if he thereof were to and search a agent at the specific direction or of law package express enforcement request (People v. authorities. Fierro Cal. Cal.App.2d situations, however, None of these case Rptr. presented at bar. *13 Stapleton
An alternate was that ground our in in holding appropriate circumstances a citizen be deemed to act as agent also an private i.e., when latter “stand by,” when police merely silently they benefit citizen to search for their knowingly illegal conduct permit and make effort searched. no to of the protect being rights person (70 102-103.) Cal.2d belated claims rule forestalls This pp. police to under- did not “direct" or their associate they lay actually “request” search, indirectly take the and them illegal thereby doing prevents constitutionally silent but cannot —by unmistakable they approval—what do directly.
In the context of searches peculiar carriers, airlines or other common question 4This expressly open 409) in left both McGrew Cal.3d at and (id. 421). Abt at p. analysis The adopt we now requires that it be reached and resolved. however, little if rule would to have foregoing any application. appear First, it is obvious that the rule cannot be unless the have invoked police and the it. both actual of the search knowledge opportunity prevent literally “standing are when the are by” These met requirements police Staple- takes in both while a search their For in example, place presence. (D.C.Mun. (Moody ton and relies v. United States the case which it 1960) 337) of a joint 163 A.2d search was outcome App. individual, and directed civilian-police operation against specific events. Thus were the significant throughout physically present knew and could have intervened it. con- By of the search they stop trast, conducts its on a random ordinarily investigations a common carrier on the whenever a presented shipment, basis suspicious package law enforcement author- of the involved before initiative employees elements knowledge ities are called to scene. requisite reason, are For the same to intervene therefore lacking. opportunity in the case at bar. are lacking is, Stapleton-Moody mani rule invoking A further prerequisite For illegal. search example, that the festly, permitted Moody searched authority without party color private Chapman (1961) v. United States U.S. (cf. defendant’s apartment 831, 610, 828, 776]), searched Stapleton L.Ed.2d 81 S.Ct v. Preston (cf. defendant’s automobile the locked parked trunk supra, United States 376 U.S. see, has inde
779-781]). carrier, we ordinarily shall But common to its committed and reasonable grounds inspect pendent packages custody. to a common in a sealed package consigns goods
When shipper values, rates, handling methods carrier, insurance such matters as the shipper’s the basis of the carrier on determined by are customarily case early Contrary the package. as-to the contents of representations Wells, (1863) 23 Cal. 189- Fargo & Co. (Hayes on the law point carriers operate regulated under which 190), current tariff provisions if it and inspect package carrier to California authorize the does correspond contents value of the the nature or suspects *14 those representations. common
Further, because a a of care towards general duty carrier has. a it has the to and inspect all the it also goods open transports, right or contains device substance which dangerous which it suspects package them. in the or the vehicle carrying other may goods damage shipment 238, Am.Jur.2d, Carriers, cited.) and cases § 914 carrier, citizen, a common no less than other has the
Finally, right, used not to allow for duty, indeed its to criminal knowingly property it While a carrier bound to whatever holds freight accept purposes.5 is Code, 2169), (Civ. obviously itself accustomed not out as to carry § (see Health bound it is or illegal possess transport to which to accept freight Code, & 11531 marijuana], [transportation Saf. §§ [possession hazard not may physical such freight present marijuana]). Although them, not to the carrier is required other or vehicle goods carrying well ensue could and business which risk the to its injury reputation criminals for be used by its facilities to that it public knowledge permits carrier has the in narcotics. Accordingly, trafficking purpose contains which it suspects additional right inspect package This Gos acted which basis upon precisely (contraband. in the case bar.
We have not overlooked the had testimony police indicating pre asked Gos fellow viously and his to “be for alert” employees suspicious contact persons the authorities if should see packages any. But such a whether communicated or means of bulletins request, orally by People (1969) circulars v. (e.g., Temple Cal.App.2d 885]), does not facto create a relation Cal.Rptr. ipso agency police Substantial numbers citizens are about ship. concerned deeply of crime in our problem society, particularly dangers posed by nature, work, narcotics traffic. By of their common very employees carriers are likely come into contact that traffic. When especially with the authorities to such interest with education respond drug pro public grams for of the generalized the assistance citizenry,6 they appeals do not who occasion to act all those have automatically “deputize” is, on the information line to be drawn thus “There certainly, provided: between in a launched joining already investigation specific People 5Thus (1967) Botts 250 Cal.App.2d Cal.Rptr. it was held service station spied attendant using who on two men his restroom illegal narcotics activities acting agent was not and his conduct judged was not by to be Fourth Superior Amendment (Compare standards. Bielicki v. (1962) Court Cal.Rptr. Cal.2d 602 P.2d 6As concluded the President’s on Commission Law Enforcement and Admin istration every of Justice: “That fully American cooperate should with officers of justice is obvious life, .... complexity anonymity [T]he of modern urban professional existence of police forces and other duty institutions whose official crime, it is to disguise deal with greater today must the need—far than in the village societies of past—for suspicious citizens to all report crimes or incidents immediately; cooperate crime; investigations short, ‘get in ” (The Challenge volved.’ Society, of Crime in a Report Free the President’s Commission Law 288.) Enforcement and Administration of Justice *15 for to a general cooperation request a them making simple response by (Ibid..)7 crime, citizenship.” of good a detecting badge in Gos’ sinister significance practice, we no same token perceive the By he found admitted, of which open package freely leaving which he a An employee be contraband. believed to a substance he contain to a and inspect package to exercises his right who carrier common course, and reseal will, close to contain contraband suspected is non require It a sequitur unfounded. if his suspicions prove package contraband. him does contain apparent do the when the same package con- his suspicions have at that the he is entitled contrary, point On narcotics, who take can in identifying firmed persons experienced fact is in illegal. the substance measures if appropriate People (1971) v. Lanthier 5 Cal.3d Thus Cal.Rptr. 297, 488 P.2d a a maintenance man student’s university opened locker; while a briefcase noxious odor he investigating emanating the contents were and the was briefcase turned over marijuana, suspected examination. on and Abt the for McGrew student police Relying contended that even if it reasonable for maintenance man to open briefcase, he after and its were closed it so therefore contents doing no “in ad longer when the arrived. plain sight” Upholding seized, thus we said missibility marijuana unanimous opinion: briefcase, “In effort their contents of defendant’s ... identify was reasonable for the officials to secure advice university professional the aid of and local A consultation by enlisting police. single campus short, officials with a narcotics falls for such far expert example, student or search of general housing police-instigated exploratory Rather, in the contraband. officials’ belongings turning hope up conduct in the case at to that of ‘the or bailee bar landlord analogous circumstances, who discovers seeks innocently suspicious expert his are to the nature of the use to which facilities premises advice an The latter be no more than extension would being appropriated. rule, the observations of layman plain-sight by augmenting v. Baker (People Cal.App.3d expertise police.’
838 [96 Cal.Rptr. because, merely an agency relationship 7Nor does as asserted in case arise bar, employees be on from time to time ask airline the lookout they are particular if observed. named individuals to contact the authorities cooperation posters displayed purpose sort of is also the of the “wanted” That sole offices; thereby post yet poster is not transformed in all our citizen who sees such question agent recognize suspect and either into detain him. FBI should he later *16 “Viewed in this the who closed light, defendant’s question opened omitted.) (Fn. into insignificance.” pales briefcase Here, too, was there no search.” “general police-instigated exploratory Lanthier, Rather, as in- an on his initiative own employee acting opened container his and believed inspected on specific premises, employer’s its were At was contents he entitled to show those marijuana. point law contents to as the student brief- enforcement personnel; just Lanthier, case in the whether airline the awaiting question employee examined, arrival of should leave has he package officer, close it then it into insignificance.”8 in front of the “pales reopen made, reach in time to brand choice is it cannot backwards Whichever act of decision inspect agent employee’s original package.
We conclude that the evidence fully supports magistrate’s finding of fact that was Gos as a acting individual when he private opened here in stated, issue. For the package therefore, reasons it was not neces- sary that in so he have doing cause to believe it probable contained contraband.
Ill course, Officer McLaughlin, to have such required prob cause, able and the record contains evidence to such a ample support finding. outset,
At the must understood issue which divided clearly this court People Marshall Cal.2d 51 Cal.Rptr. [69. 442 P.2d is not here There the held that presented. majority because a cannot be alone, searched on cause dwelling war probable rantless search aof secreted in a cannot package dwelling be justified under the view” unless the officer can see “plain exception actually (Id. bar, contrast, contents of the at 59.) In the p. case package. hence, were consigned to common for packages shipment carrier earlier, the reasons stated could be searched on cause. Thus the probable issue was not whether the marijuana in was in view” packages “plain but whether Officer had cause believe simply McLaughlin did contain that narcotic. On this point, opinion 2) Marshall agreed Cal.2d at fn. that “an officer may rely 8 Parenthetically we note that in Lanthier complained defendant because the open, present complain container was left while case the defendants because it was. *17 (Accord, in of all his senses” such cause. detennining probable presence 402, 10.) Temple (1969) supra, 410-411, v. People fn. 276 Cal.App.2d rule, that the court held that “Reasonable Applying correctly contraband be contains grounds believing package adequately afforded its its and the manner in which it carried.” design, shape, 125, v. (People (1968) Anderson 266 132-133 Cal.Rptr. Cal.App.2d [71 624, 827]; (9th 1965) see v. United also States Cir. 353 F.2d Hernandez 627-628; 98, Henry (1959) v. cf. United States 361 U.S. 104 134, 139-140, 80 the same is true of which S.Ct. And an odor 546, (People v. Christensen may emit. package Cal.App.3d cited.) 17], and cases Cal.Rptr.
In the case at bar we note that was Officer McLaughlin qualified on the witness stand as well versed the detection and identifica being tion of narcotics. He testified that carton illegal upon, walking up Gos, he and observed the inside it smelled opened packages brick-shaped a distinctive odor He emanating immediately recognized therefrom.
size, the bricks to be those used to transr shape of packaging typical “kilo” and further odor port marijuana, recognized quantities circumstances, that of In of all the man marijuana. light prudent of Officer could believe reasonably McLaughlin’s training experience contained packages contraband.
Predicated on such cause, the probable officer’s search of subsequent before packages him and the remaining cartons in four the shipment Chambers, reasonable constitutionally under the rationale of and the evidence discovered in that Therefore, search admissible. court’s trial order McKinnon, dismissal of the suppression, charges against granting Turk’s motion under section were in error. The orders from are appealed reversed. C.J., J., J.,
Wright, McComb, Burke, concurred.
PETERS, J. I dissent.
I
McGrew,
People v.
In
1],
case ato consigned as concerns goods warrant insofar search requirement common carrier. “People Amendment McGrew we In Fourth principles: summarized
Marshall, 585, makes P.2d Cal.2d 57 [69 Cal.Rptr. ‘a search to believe that with certain cause clear exceptions, probable a warrant.’ without . . . search justify *18 reveal contraband does will obtained, absent an cause, a warrant still must Where there is probable a though a arrest even a incident to valid for search not emergency, (E.g., an arrest. a incident to would not be needed for search warrant 833, Harris, 681, 401 P.2d People v. 62 Cal.2d Cal.Rptr. [43 from, warrant, a search aside to the “The requirement exceptions f arrest, “imminent a o searches incident an where there is danger to are ’ to be seized” destruction, removal, or intended concealment property fact, ‘is, in no search or where is in which the evidence plain sight, Marshall, 56-57, 51, 61.) (People v. Cal. 2d supra, evidence.’ . of ‘effects’ includes securely “. . The Fourth Amendment protection Neither the language closed footlockers common carriers. through shipped Amendment, of the Fourth nor of of the cases interpreting pro- but amendment, ‘houses’ not that warrants to tection of that suggest apply are based to to of warrant ‘effects.’ The the requirement exceptions (1 . .” Cal.3d of items. . categories on and not on circumstances 409.) contended, here, that McGrew do footlockers In as they People court are of removal. This danger movable therefore imminent or said then that there was no imminent removal destruction danger should those before us. The majority the evidence in circumstances like because if is either reiterate recant statement today forthrightly without there are no circumstances search justify true special invalid. and the search was warrant be; It the law
I believe that McGrew is law should good today. applied find is fundamental to our constitutional jurisprudence. there years ago. no fault with our decision three do They quarrel which rather its it relies. logic principles upon They purport Maroney, v. case of Chambers 399 U.S. rely subsequent 419, 1975], case which not controlling, L.Ed.2d 90 S.Ct. a vehicle is case, no to the most recent vehicular search while little or giving weight Coolidge Hampshire, New U.S. 443 L.Ed.2d 91 S.Ct. Chambers, had reason believe In arrested men every car were crime. The defendants’ robbers from the scene fleeing station, a warrant. was taken to the where it was searched without immobilized, the car was court Although for practical purposes high . . . unless stated that its “still obtained at the station house mobility prior the Fourth of the car Amendment a warrantless seizure permits denial of use a warrant secured. In that event there its until is anyone little to choose in terms of between im practical consequences warrant[1] search without the car’s until mediate immobilization 428-429].) warrant . is obtained. . .” U.S. dissent, Harlan, Justice this contention: “The Mr. ably responded sure, well Fourth ‘seizures’ as Amendment to be unreasonable proscribes, However, this ‘searches.’ in the circumstances which problem ' occur, be the the lesser intrusion will likely always simple almost *19 seizure of enable the the car for the a to day—necessary period—perhaps to avoid a officers obtain a . . . wish to search warrant. who. [P]ersons search—either their evi- incriminating or to conceal privacy protect dence—will almost a of the use of the vehicle in brief loss certainly prefer the the for to have a exchange justifica- opportunity magistrate pass upon sure, for tion the search. To be one can conceive of in which the instances . . . would be offended a immobiliza- occupant more deeply by temporary However, tion of his vehicle than a it. such a search of by prompt person search, immediate remains free to' consent to thus always an avoiding the delay. Where consent is not car forthcoming, occupants have interest in is Amendment the Fourth privacy protected by where even a . . .” circumstances seizure. justify temporary [Citation.] (399 42, 419, 435-436].) U.S. L.Ed.2d [26
I believe Mr. Justice Harlan’s to be
view,
the reasoned
but of course
am bound
the result
by
reached
a
result I
majority,
reason
thought
California,
ably
Cooper
after
v.
apparent
730,
Chambers, is not however, to everything to apply does purport opinion closely Court’s down The nailed or affixed realty. Supreme movable one form of involving only tied to a of cases one series long one transport place is used as a vehicle to goods which object—that to another. States, case is the seminal supra, upon United
Carroll
U.S.
decision
Court
Supreme
based and the United States
which Chambers is
Carroll court carefully
in which the
treated
length.
problem
legislation
and contemporaneous
of assistance
colonial writs
analyzed
that “contemporaneously
few Congresses, concluding
enacted
first
Congress,
we
in the first
find
of the Fourth Amendment
with the adoption
made as
a difference
Congresses,
and Fourth
and in the
Second
following
forfeiture,
subject
warrant between goods
search
necessity
and like
goods
similar
house or
when concealed in
dwelling
place,
a movable vessel where they
and concealed
course
transportation
. .
U.S.
warrant.
.”
could
out
reach of a search
be
readily
put
added.)
550];
L.Ed.
italics
The Carroll court
state
to all
never
a rule
attempted
applicable
movable items. Rather it
“a
be-
necessary difference
sought
recognize
store,
tween a search
house or
. . .
dwelling
other structure
¿
boat,
automobile,
ship,
motor
wagon
search
for contraband goods,
where it is not
can
to secure a warrant because the vehicle
practicable
moved
out. of
quickly
jurisdiction which
warrant must
locality
*20
(Id.,
be
551];
added.)
at
153
at
italics
sought.”
L.Ed.
p.
Every
p.
[69
United States
Court case which
Carroll
follows
has involved
Supreme
States,
629,
(Husty
vehicle.
v. United
The most recent case address the a vehicular to itself to of problems Hampshire, supra, is v. New 443. Coolidge search 403 U.S. The majority to that case the instant case as it at- insofar distinguish attempt the rule warrant exigent of the search without a in cir- clarify tempts cumstances, in the no and end the maintain that because clear majority the the its the court in of majority supported opinion entirety opinion no I insofar the instant case is concerned. with significance disagree both points. place so in removed time and could be construed as incident an arrest. at p.
U.S. Coolidge, and outside the house was not In car was being parked was no for the way used at the time it was There by seized police. once had arrived to the automobile the police defendant access gain Furthermore, her also taken to at his home. Mrs. were Coolidge baby where, the for the remainder of the other them lodging stayed The towed midnight car was to the station night. by for the entire house was under strict Coolidge guard evening. kept Coolidge Just as the car in could not be seem to moved or hidden by of the any so too five cartons suspects, in the instant case were unable moved, to be at least not without the police their movement seeing cases, defendants them with In arresting cause. both the exigent circumstances that Carroll and Chambers are non- require existent, and five of the justices Court held in Supreme the absence of those circumstances the search of the car without a warrant could not be upheld. state that majority Justice Stewart’s “was plurality in opinion event signed J., J., four only (Stewart, members court Douglas, “
Brennan, J., Marshall, J.)” and for reason this ‘is-without force or ” What precedent.’ do not tell us majority is that fifth member of the United States Court Supreme who to make joined in majority Coolidge in reversing conviction in II—D expressly joined part Justice Stewart’s and that opinion directly here. That part part point of Justice Stewart’s was a opinion attack and vigorous a dis- rejection senting which set forth opinion views similar to those ex- substantially pressed by the case before us. stated: “Since
Justice Stewart II—D part of his opinion expressly presence knew planned along automobile and all it, there ‘exigent was no circumstance’ justify their seize failure obtain warrant. The Fourth application the basic rule Amendment requires law that the warrantless sup- seizure therefore *21 fruits of pressed.” added.) 590]; at U.S. L.Ed.2d at italics p. p. maintains, of In II—D Justice Stewart further “The a part stopping vehicle a to a in on the and search amount highway major subsequent Carroll held an interference to terference in lives of the such occupants. warrant, be reasonable a It be without cause. given may thought probable a and to follow that the seizure search there was no here—where fortiori reasonable, and the vehicle was since the stopping also unoccupied—were substantial, intrusion less there were circumstances no although exigent sort, \ whatever. fhe of this it is but a shon Using tv reasoning «ttp <-.cer.",'L- never that it is for the to obtain we: ant bdve necessary ? police cause. automobile, probable that have they and an seizing ing provided when he pro- this view exactly to adopt And appears Mr. Justice White do the as we automobiles searches of that the Court ‘treat should poses of a arrest person.’ entry warrantless view that we to
“If were accept Justice White’s Mr. are automobiles search of and arrest and warrantless seizure for of purposes cause, be it would reasonable, have se so as the per probable long seizures of and houses searches see the basis for distinguishing difficult a nighttime make warrantless for effects. If it is reasonable the police of bed, it must then surely his for a arresting person entry purpose seize for and search entry a warrantless be reasonable well to make warrant, without a may, a If evidence of serious crime. vital prop owner’s private vehicle and search an unoccupied parked seize why hard to see then it is not used for any illegal purpose, erty, being trunk, suitcase, a a shopping search a need a to seize and warrant they (At house, back in a garage, yard.” container other bag, portable 590-591]; original.) italics in pp. pp. And what be a could more clear finally expression inapplicability concludes, rule “We Carroll-Chambers than when Justice Stewart correct, are convinced the result reached case is that the in this and it reflects—that warrant principle must obtain a when intend seize outside the of a valid search incident object scope arrest—can be understood and easily courts law enforce- applied ment alike. officers It is that should work to the.' principle protect citizen without overburdening police, principle preserves (At protects guarantees the Fourth Amendment.” L.Ed.2d at p.593].)
Thus, the five who would justices Coolidge reversed the conviction in with the case agree allowing the instant majority in analysis a search of the five cartons in without warrant. question Carroll,
The rule of in the its clear. Where the are goods progeny i.e., course in vehicle them transportation, conveying beyond capable a search without a be a law jurisdiction, warrant conducted may enforcement officer has who to believe that seizable cause goods be will A found. in a carton office not a vehicle. It freight used to store or to goods them carton cannot get package shipment; here there on its own power.
The state if majority that of a car still obtains the station mobility house, “a fortiori as here chattel such involved ‘mobile’ remains in constitutional sense its limited and bailment to a carrier.” despite voluntary Indeed, will retain whether chattels their movable character anywhere, house, within or concrete vault as well as an depot, dwelling airport, are unless affixed or otherwise rendered nonmovable. The they realty is not that the point chattels here involved were within the of the custody airlines, but that were not in a vehicle them they of moving beyond capable i.e., on its own had the course of jurisdiction not entered power; they line at a carrier at transportation. aboard Drawing goods physically least has the virtue of This is the- line drawn United certainty. States Court in case If all could be after case. movable Supreme things searched without warrant if there were cause to believe they contraband, contained evidence or would be the Fourth Amendment rendered and in effect nugatory, the search without a warrant would become the rule rather than the exception.-
II With to the of discussion I respect agency, agree majority there was sufficient evidence before the to establish that Gos magistrate not the of Nevertheless, was the law agent enforcement officers. there was evidence, and I do believe that the determi- conflicting magistrate’s be nation on the record before us. It is clear record upheld that the an standard magistrate in applied improper determining agency As the question. in footnote of their the basis majority recognize opinion, decision that he had heard no evidence magistrate’s was of agency. us, Durden, believed, In the case before Etta if established testimony as a matter law that Gos was as an acting agent police department, and the magistrate that there was no evidence was ruling obviously Etta improper testimony standard. Durden’s applying Although might have been rejected he did not do so. magistrate,
Miss Durden was hired to interview and their role airport freight agents law enforcement officials control narcotics She helping transportation. testified as a result her conversation with Gos “that had asked to be him alert for individuals who are any suspicious shipping [Gos] and if are them packages suspicious, open policy leave the call boxes the State Narcotics Bureau.” do not discuss the effect this and their plain testimony, holding decision should not read as today’s affirmatively sanctioning officers citizens to make indiscrim- practice private requesting Otherwise, inate searches and seizures without cause. even probable of this decision would allow unofficially impact deputize *23 warrant, without individual, the cannot search and where
private can, of individual at the direction and suggestion private of law. in a court admissible uncovered will any fully evidence of inevitably lead type I this will condoning practice submit that “1984,” individual’s where an Orwell described in his novel society George an of the state. is agent life is nonexistent everyone private cartons, that an I do conclude to Gos’ search of the not With regard ato as of the airline CAB agent pursuant airline an acting employee, airline, a box cannot enacted for the regulation protection of if has overinsured consignor part he as suspects shipment at a If the insurance later date. employee make fraudulent claim plan without the best interests the airline and for its of acting protection I that he is acting direction police, agree majority from any as and such make him agent individual a search would not private the police.
However, the was based magistrate’s determination premise he had heard was clear evidence of This was false. There agency. evidence, evidence of agency. there also- Although conflicting did not resolve the conflict and an erroneous magistrate obviously applied standard. In to consider have agency, the evidence failing failed consider the real issue this case.
Ill through new bulldozes inroads today that this court I am distressed general It is of course a the Fourth Amendment. covering protective liberally the Bill of be construed Rights of our jurisprudence principle to a free nation. Because deemed essential those so rights protect seizures, searches and “unreasonable” only Fourth Amendment prohibits conduct, to this fidelity down an absolute standard rather setting than For construction is here even constitutional more important. principle cases, the absolute measuring distinguished Fourth Amendment dictates, of what is First our characterization Amendment’s rod,of in each case will affect the standard used and unreasonable reasonable that a be ob cases. Unless rule warrant in succeeding exceptions search are where only necessity requires granted compelling tained prior action, time de “[rjights there is substantial that over danger immediate States, (Weems be lost in v. United might reality.” clared in words U.S.349,373 793, 801, fear decision 30 S.Ct. I that today’s [54 L.Ed. intrusions Fourth Amend- upon. more only beginning shocking *24 (to use “common sense” reason, I see for example, why ment no rights. not extend right honed should the majority’s finely analytical concept) that are a warrant to within a so dwelling to search without goods packaged moved, box. could be such easily any goods bag that they paper take what as a small Because they regard The majority today step. however,
the ratio decidendi on which this must be rely, only of a toward a sanctuaries. devoid long journey society private beginning words of vitality Justice retain their Bradley, writing years ago; “It that it least today: be is the obnoxious its mildest and thing form; illegitimate and unconstitutional their get but repulsive practices first silent footing way, deviations namely, by slight approaches legal modes of This can be obviated procedure. only by adhering the rule that constitutional for the security provisions person prop- should be A close erty liberally construed. and literal construction deprives them of half their and leads to efficacy, gradual depreciation, right, as if it consisted more in than It sound in substance. is the of courts duty be to watchful citizen, for the constitutional rights of the against stealthy encroachments thereon. Their principiis. motto should obsta States, (Boyd . . .” v. United 116 U.S. L.Ed.
6 S.Ct. I would withstand this I would affirm the orders beginning; of the lower court.
Tobriner, J., concurred. SULLIVAN, I join J. in Parts I and III of Justice Peters’ dissenting I would opinion. therefore affirm the orders from. appealed