Aрpellant asks reversal of his conviction by a jury on charges of possession of a dangerous drug and encouraging and furnishing a minor with said drug. He claims that the triаl court erred in refusing to suppress evidence that was discovered after a warrantless search of a nearby automobile. We agree.
Richаrd Payne, age 18, traveled with his 17 year old girl friend, Andria, and another young couple, Brian and Mary, from Alameda to spend a weekend camping in Yosemite. They drove up together in Brian’s Volkswagen and after encountering crowded campsites due to the Memorial Day holiday period, were finally assigned Nо. 118 by a park ranger. During the daylight hours of May 31, 1969, the four hiked and played in the valley and at times were visited by other young people, some of whom arrived in other cars.
Camping nearby with his family was Charles Blackmore, an off-duty San Jose police officer, who was on vacation. His campsite was from 100 to 150 feеt away from where Payne and his companions were located and across a roadway. From this distance he claims that at about 5:30 P.M. he saw what appeared to him to be young people smoking a marijuana cigarette and passing it around amongst themselves. From this distance he also clаims he saw “furtive movements; going to the glove compartment, reaching inside, bringing out a plastic bag which was readily visible, the reaching in of this bag * * * and getting the water for the washing down of what appeared to be dangerous drugs.” Record, Vol. 1, at 29.
Blackmore immediately went to the rangers’ quarters to report what he had seen but they were too busy to investigate. Three hours later at about 8:30 P.M. Park Ranger James Wolfe responded to Blackmore’s second request and in the darkness the two of them crossed the road and approached the scene of the earlier happenings. They came upon aрpellant and his girl friend preparing to bed down in sleeping bags. As the ranger stood off to one side to observe, Blackmore, dressed in civilian clothes, wаlked up and said, “I’m a police off i-, cer; may I search your ear?” At this point at the trial a conflict in the evidence developed. Blackmorе claims that Payne said, “Yes” and Payne insists that his only answer was, “It’s not ours.” Since Brian, the owner of the car, and Mary were away hiking and were not present at thе time of the search there is no contention that their consent was obtained.
Blackmore searched the car and found 12 seconal capsules in the glove compartment and handed them to Wolfe who placed the two young people under arrest. No marijuana was found anywhere during the search. Appellant contends that the search and seizure was illegal. It is agreed that no warrant had been secured.
The Fourth Amendment to the Constitutiоn protects individuals from unreasonable searches and seizures. Appellees argue, however, that even if the search were illegal, it was conducted by a private person rather than a public official and consequently does not enjoy constitutional protection. Burdeau v. McDowell,
We agree that Blackmore was acting in the cаpacity of a private citi
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zen when he seized the capsules. However, it is clear that the participation of Ranger Wolfe in the events dеscribed were of such a nature that the search and seizure and later arrest of appellant can only be construed as having been done undеr the - observation, guidance, direction and consent of a public official, making it governmental in nature. As stated by Justice Frankfurter in Lustig v. United States,
“(A) search is а search by a federal official if he had a hand in it. *- -x- -x- The decisive factor in determining the applicability of the Byars case [Byars v. United States,273 U.S. 28 ,47 S.Ct. 248 ,71 L.Ed. 520 ] is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanctioned means. It is immaterial whether a federal agent originated the idea or joined in it while the search was in progress. So long as he was in it before the object of the search was completely accomplished, he must be deemed to have participated in it.”
In the instant case, Ranger Wolfe was summoned at the insistence of Black-more. Hе was apprised of possible illegal activity and accompanied Blackmore to appellant’s campsite; he allowed Blackmore to briefly question appellant; he allowed him to search the car and then actively participated in arresting appellant and his companion. Under these circumstances the search and seizure can only be construed as one having been conducted by a federal official.
The legality of the search and seizure cannot be upheld as an incident to a lawful arrest since the arrest came only after the search rеvealed the presence of seconal capsules. An arrest cannot be justified by the results of a search, however incriminating they may be, if the sеarch is unlawful. Williams v. United States,
The Government argues that the search was based upon consent. As stated, there is a conflict in testimony as to whether aрpellant did verbally consent. In view of Payne’s youth, lack of any advice as to his rights, and Black-more’s deception in showing credentials which were without effect in Yosemite National Park, it cannot be said that any attempted verbal permission was legally effective. When the prosecution seeks tо rely upon consent to justify the lawfulness of a search, it has the burden of proving that the consent was, in fact, freely and voluntarily given. Bumper v. North Carolina,
Finally, the Government contends that the search of an automobile is not subject to the same rules as the search of an office, home or other immovable structure. Carroll v. United States,
For the reasons stated, this search, not incident to a lawful arrest and without effective consent by the appellant, was unreasonable within the meaning of the Fourth Amendment and the conviction is reversed.