# People v. McKinnon

> California Supreme Court · September 13, 1972 · 7 Cal. 3d 899

URL: https://www.frixlaw.com/law-library/cases/9793977

## Case

- **Full name:** The PEOPLE, Plaintiff and Appellant, v. LLOYD GEORGE McKINNON Et Al., Defendants and Respondents
- **Court:** California Supreme Court
- **Decided:** September 13, 1972
- **Citations:** 7 Cal. 3d 899; 103 Cal. Rptr. 897; 500 P.2d 1097; 1972 Cal. LEXIS 233
- **Precedential status:** Published
- **Opinion:** Dissent by Peters
- **Judges:** Mosk, Peters, Sullivan
- **Cited by:** 94 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9793977

## How later opinions describe it (automated extraction)

- stating that “in appropriate circumstances a private citizen may also be deemed to act as an agent of the police when the latter merely ‘stand silently by,’ i.e., when they knowingly permit the citizen to conduct an illegal search for their benefit and make no effort to protec…

## Opinion text

PETERS, J.
I dissent.
I
In People v. McGrew, 1 Cal.3d 404 [ 82 Cal.Rptr. 473 , 462 P.2d 1 ], law enforcement officials conducted a similar search of a trunk consigned to an airline. There too the police had probable cause to believe that the trunk contained marijuana. We correctly held, in my view, that the search without a warrant was unreasonable and therefore a violation of the defendant’s Fourth Amendment rights. The majority in the instant *918 case in overruling McGrew have totally abrogated the Fourth Amendment requirement of a search warrant insofar as concerns goods consigned to a common carrier.
In McGrew we summarized Fourth Amendment principles: “People v. Marshall, 69 Cal.2d 51, 57 [ 69 Cal.Rptr. 585 , 442 P.2d 665 ], makes clear that with certain exceptions, probable cause to believe that ‘a search will reveal contraband . . . does not justify a search without a warrant.’ Where there is probable cause, a warrant still must be obtained, absent an emergency, for a search not incident to a valid arrest even though a warrant would not be needed for a search incident to an arrest. (E.g., People v. Harris, 62 Cal.2d 681, 682-683 [ 43 Cal.Rptr. 833 , 401 P.2d 225 ].)
“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, 69 Cal.2d 51, 56-57, 61.)
“. . . 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. . . .” ( 1 Cal.3d at p. 409 .)
In McGrew the People contended, as they do here, that footlockers are movable and therefore in imminent danger of removal. This court said then that there was no danger of imminent removal or destruction of the evidence in circumstances like those before us. The majority should either reiterate today or forthrightly recant that statement because if it is true there are no special circumstances to justify a search without a warrant and the search was invalid.
I believe that McGrew is good law today. It should be; the law applied there is fundamental to our constitutional jurisprudence. The majority find no fault with our decision of three years ago. They do not quarrel with its logic or the principles upon which it relies. They rather purport to rely on the subsequent case of Chambers v. Maroney, 399 U.S. 42 [ 26 L.Ed.2d 419 , 90 S.Ct. 1975 ], a vehicle case which is not controlling, while giving little or no weight to the most recent vehicular search case, Coolidge v. New Hampshire, 403 U.S. 443 [ 29 L.Ed.2d 564 , 91 S.Ct. 2022 ],
*919 In Chambers , the police arrested men they had every reason to believe were robbers fleeing from the scene of the crime. The defendants’ car was taken to the police station, where it was searched without a warrant. Although the car was for practical purposes immobilized, the high court stated that its prior mobility “still obtained at the station house . . . unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant[ 1 ] and the car’s immobilization until a warrant is obtained. . . .” ( 399 U.S. 42, 52 [ 26 L.Ed.2d 419, 428-429 ].)
Mr. Justice Harlan, in dissent, ably responded to this contention: “The Fourth Amendment proscribes, to be sure, unreasonable ‘seizures’ as well as ‘searches.’ However, in the circumstances in which this problem is ' likely to occur, the lesser intrusion will almost always be the simple seizure of the car for the period—perhaps a day—necessary to enable the officers to obtain a search warrant. . . . [P]ersons who. wish to avoid a search—either to protect their privacy or to conceal incriminating evidence—will almost certainly prefer a brief loss of the use of the vehicle in exchange for the opportunity to have a magistrate pass upon the justification for the search. To be sure, one can conceive of instances in which the occupant . . . would be more deeply offended by a temporary immobilization of his vehicle than by a prompt search of it. However, such a person always remains free to' consent to an immediate search, thus avoiding any delay. Where consent is not forthcoming, the occupants of the car have an interest in privacy that is protected by the Fourth Amendment even where the circumstances justify a temporary seizure. [Citation.] . . .” ( 399 U.S. 42, 63-64 [ 26 L.Ed.2d 419, 435-436 ].)
I believe Mr. Justice Harlan’s to be the reasoned view, but of course am bound by the result reached by the majority, a result I thought reasonably apparent after Cooper v. California, 386 U.S. 58 [ 17 L.Ed.2d 730 , 87 S.Ct. 788 ], (People v. Webb, 66 Cal.2d 107, 128 [ 56 Cal.Rptr. 902 , 424 P.2d 342 , 19 A.L.R.3d 708 ].) 2
*920 Chambers , however, does not purport to apply to everything that is not nailed down or affixed to realty. The Supreme Court’s opinion is closely tied to a long series of cases involving one and only one form of movable object—that which is used as a vehicle to transport goods from one place to another.
Carroll v. United States, supra, 267 U.S. 132 , is the seminal case upon which Chambers is based and the United States Supreme Court decision in which the problem is treated at length. The Carroll court carefully analyzed the colonial writs of assistance and contemporaneous legislation enacted by the first few Congresses, concluding that “contemporaneously with the adoption of the Fourth Amendment we find in the first Congress, and in the following Second and Fourth Congresses, a difference made as to the necessity for a search warrant between goods subject to forfeiture, when concealed in a dwelling house or similar place, and like goods in course of transportation and concealed in a movable vessel where they readily could be put out of reach of a search warrant. . . .” ( 267 U.S. 132, 151 [ 69 L.Ed. 543, 550 ]; italics added.)
The Carroll court never attempted to state a rule applicable to all movable items. Rather it sought to recognize “a necessary difference between a search of a store, dwelling house or other structure . . . and a search of ¿ ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out. of the locality or jurisdiction in which the warrant must be sought.” (Id., at p. 153 [ 69 L.Ed. at p. 551 ]; italics added.) Every United States Supreme Court case which follows Carroll has involved a vehicle. (Husty v. United States, 282 U.S. 694 [ 75 L.Ed. 629 , 51 S.Ct. 240 , 74 A.L.R. 1407 ]; Scher v. United States, 305 U.S. 251 [ 83 L.Ed. 151 , 59 S.Ct. 174 ]; Preston v. United States, 316 U.S. 364 [ 11 L.Ed.2d 777 , 84 S.Ct. 881 ]; Dyke v. Taylor Implement Co., 391 U.S. 216 [ 20 L.Ed.2d 538 , 88 S.Ct. 1472 ]; Chambers v. Maroney, supra, 399 U.S. 42 ; Coolidge v. New Hampshire, supra, 403 U.S. 443 .)
The most recent case to address itself to the problems of a vehicular search is Coolidge v. New Hampshire, supra, 403 U.S. 443 . The majority attempt to distinguish that case from the instant case insofar as it attempts to clarify the rule of the search without a warrant in exigent circumstances, and in the end the majority maintain that because no clear majority supported the opinion of the court in its entirety the opinion is of no significance insofar as the instant case is concerned. I disagree with both points.
*921 In Coolidge , the car was parked outside the house and was not being used at the time it was seized by the police. There was no way for the defendant to gain access to the automobile once the police had arrived at his home. Furthermore, Mrs. Coolidge and her baby were also taken to other lodging where, the police stayed with them for the remainder of the night. The car was towed to the police station by midnight and the Coolidge house was kept under strict guard for the entire evening.
Just as the car in Coolidge could not seem to be moved or hidden by any of the suspects, so too the five cartons in the instant case were unable to be moved, at least not without the police seeing their movement by the defendants and arresting them with probable cause. In both cases, the exigent circumstances that Carroll and Chambers require are nonexistent, and five justices of the Supreme Court held that in the absence of those circumstances the search of the car without a warrant could not be upheld.
The majority state that Justice Stewart’s plurality opinion “was in any event signed by only four members of the court (Stewart, J., Douglas, J., Brennan, J., and Marshall, J.)” and for this reason “ ‘is- without force or precedent.’ ” What the majority do not tell us is that the fifth member of the United States Supreme Court who joined to make the majority in Coolidge in reversing the conviction expressly joined in part II—D of Justice Stewart’s opinion and that part is directly in point here. That part of Justice Stewart’s opinion was a vigorous attack and rejection on a dissenting opinion which set forth views substantially similar to those expressed by the majority in the case before us.
Justice Stewart in part II—D of his opinion expressly stated: “Since the police knew of the presence of the automobile and planned all along to seize it, there was no ‘exigent circumstance’ to justify their failure to obtain a warrant. The application of the basic rule of Fourth Amendment law therefore requires that the fruits of the warrantless seizure be suppressed.” ( 403 U.S. at p. 478 [ 29 L.Ed.2d at p. 590 ]; italics added.)
In part II—D Justice Stewart further maintains, “The stopping of a vehicle on the open highway and a subsequent search amount to a major interference in the lives of the occupants. Carroll held such an interference to be reasonable without a warrant, given probable cause. It may be thought to follow a fortiori that the seizure and search here—where there was no stopping and the vehicle was unoccupied—were also reasonable, since the intrusion was less substantial, although there were no exigent circumstances whatever. Using reasoning of this sort, it is but a shon «ttp tv fhe \ that it is never necessary for the police to obtain ? we: ant bdve <-.cer.",'L *922 ing and seizing an automobile, provided that they have probable cause. And Mr. Justice White appears to adopt exactly this view when he proposes that the Court should ‘treat searches of automobiles as we do the arrest of a person.’
“If we were to accept Mr. Justice White’s view that warrantless entry for purposes of arrest and warrantless seizure and search of automobiles are per se reasonable, so long as the police have probable cause, it would be difficult to see the basis for distinguishing searches of houses and seizures of effects. If it is reasonable for the police to make a warrantless nighttime entry for the purpose of arresting a person in his bed, then surely it must be reasonable as well to make a warrantless entry to search for and seize vital evidence of a serious crime. If the police may, without a warrant, seize and search an unoccupied vehicle parked on the owner’s private property, not being used for any illegal purpose, then it is hard to see why they need a warrant to seize and search a suitcase, a trunk, a shopping bag, or any other portable container in a house, garage, or back yard.” (At pp. 479-480 [29 L.Ed.2d at pp. 590-591]; italics in the original.)
And finally what could be a more clear expression of the inapplicability of the Carroll-Chambers rule than when Justice Stewart concludes, “We are convinced that the result reached in this case is correct, and that the principle it reflects—that the police must obtain a warrant when they intend to seize an object outside the scope of a valid search incident to arrest—can be easily understood and applied by courts and law enforcement officers alike. It is a principle that should work to protect the.' citizen without overburdening the police, and a principle that preserves and protects the guarantees of the Fourth Amendment.” (At p. 484 [29 L.Ed.2d at p.593].)
Thus, the five justices who reversed the conviction in Coolidge would not agree with the analysis of the majority in the instant case in allowing a search of the five cartons in question without a warrant.
The rule of Carroll , and its progeny is clear. Where the goods are in the course of transportation, i.e., in a vehicle capable of conveying them beyond the jurisdiction, a search without a warrant may be conducted by a law enforcement officer who has probable cause to believe that seizable goods will be found. A carton in a freight office is not a vehicle. It may be used to store goods or to package them for shipment; a carton cannot get from here to there on its own power.
The majority state that if the mobility of a car still obtains at the station house, “a fortiori a chattel such as here involved remains ‘mobile’ in the *923 constitutional sense despite its limited and voluntary bailment to a carrier.” Indeed, chattels will retain their movable character anywhere, whether within a depot, dwelling house, or concrete vault as well as an airport, unless they are affixed to realty or otherwise rendered nonmovable. The point is not that the chattels here involved were within the custody of the airlines, but that they were not in a vehicle capable of moving them beyond the jurisdiction on its own power; i.e., they had not entered the course of transportation. Drawing a line at goods physically aboard a carrier at least has the virtue of certainty. This is the- line drawn by the United States Supreme Court in case after case. If all things movable could be searched without a warrant if there were probable cause to believe they contained evidence or contraband, the Fourth Amendment would be rendered nugatory, and in effect the search without a warrant would become the rule rather than the exception.-
II
With respect to the discussion of agency, I agree with the majority that there was sufficient evidence before the magistrate to establish that Gos was not the agent of the law enforcement officers. Nevertheless, there was conflicting evidence, and I do not believe that the magistrate’s determination may be upheld on the record before us. It is clear from that record that the magistrate applied an improper standard in determining the agency question. As the majority recognize in footnote 2 of their opinion, the basis of the magistrate’s decision was that he had heard no evidence of agency. In the case before us, the testimony of Etta Durden, if believed, established as a matter of law that Gos was acting as an agent of the police department, and the magistrate in ruling that there was no evidence was obviously applying an improper standard. Although Etta Durden’s testimony might have been rejected by the magistrate, he did not do so.
Miss Durden was hired to interview airport freight agents and their role in helping law enforcement officials control narcotics transportation. She testified as a result of her conversation with Gos “that the police had asked him [Gos] to be alert for any suspicious individuals who are shipping packages and if they are suspicious, to open them and the policy was to leave the boxes open and call the State Narcotics Bureau.”
The majority do not discuss the plain effect of this testimony, and their holding in today’s decision should not be read as affirmatively sanctioning the practice of police officers requesting private citizens to make indiscriminate searches and seizures without even probable cause. Otherwise, the impact of this decision would allow the police to unofficially deputize a *924 private individual, and where the police cannot search without a warrant, the private individual at the direction and suggestion of the police can, and any evidence uncovered will be fully admissible in a court of law. I submit that condoning this practice will inevitably lead to the type of society George Orwell described in his novel “1984,” where an individual’s private life is nonexistent and everyone is an agent of the state.
With regard to Gos’ search of the cartons, I do not conclude that an airline employee, acting as an agent of the airline pursuant to a CAB regulation enacted for the protection of the airline, cannot open a box or shipment if he suspects the consignor has overinsured it as part of a plan to make a fraudulent insurance claim at a later date. If the employee is acting for the best interests of the airline and for its protection without any direction from the police, I agree with the majority that he is acting as a private individual and such a search would not make him an agent of the police.
However, the magistrate’s determination was based on the premise that he had not heard any evidence of agency. This was false. There was clear evidence of agency. Although there was also- conflicting evidence, the magistrate did not resolve the conflict and obviously applied an erroneous standard. In failing to consider the evidence of agency, the majority have failed to consider the real issue in this case.
Ill
I am distressed that this court today bulldozes new inroads through the protective covering of the Fourth Amendment. It is of course a general principle of our jurisprudence that the Bill of Rights be construed liberally to protect those rights deemed so essential to a free nation. Because the Fourth Amendment prohibits only “unreasonable” searches and seizures, rather than setting down an absolute standard of conduct, fidelity to this principle of constitutional construction is here even more important. For in Fourth Amendment cases, as distinguished from the absolute measuring rod,of the First Amendment’s dictates, our characterization of what is reasonable and unreasonable in each case will affect the standard used in succeeding cases. Unless exceptions to the rule that a warrant be obtained prior to search are granted only where compelling necessity requires immediate action, there is substantial danger that over time “[rjights declared in words might be lost in reality.” (Weems v. United States, 217 U.S.349,373 [ 54 L.Ed. 793, 801 , 30 S.Ct. 544 ].) I fear that today’s decision is only the beginning of more shocking intrusions upon. Fourth Amend *925 ment rights. I see no reason, for example, why “common sense” (to use the majority’s finely honed analytical concept) should not extend the right to search without a warrant to goods within a dwelling that are so packaged that they could easily be moved, such as any goods in a paper bag or box.
The majority today take what they regard as a small step. Because of the ratio decidendi on which they rely, however, this must be only the beginning of a long journey toward a society devoid of private sanctuaries. The words of Justice Bradley, writing 85 years ago; retain their vitality today: “It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation, of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis.
. . .” (Boyd v. United States, 116 U.S. 616, 635 [ 29 L.Ed. 746, 752 , 6 S.Ct. 524 ].) I would withstand this beginning; I would affirm the orders of the lower court.
Tobriner, J., concurred.
Such a search would be valid pursuant to Carroll v. United States, 267 U.S. 132, 153 [ 69 L.Ed. 543, 551 , 45 S.Ct. 280 , 39 A.L.R. 790 ]. Since the car was not searched immediately on the highway nor immobilized until a warrant could be obtained, the court’s statement concerning the car’s continuing “mobility” clearly indicates that the search at the police station must be considered to have been “immediate.”
Webb involved almost precisely the same fact situation as that in Chambers . The majority sustained the search on the theory that, although removed in time and place from the arrest, it was nevertheless incident to it. I concurred only because I believed that Cooper v. California, supra, 386 U.S. 58 , presaged the Chambers case. It may be noted that the majority in Chambers expressly held that a search *920 so removed in time and place could not be construed as incident to an arrest. ( 399 U.S. at p. 47 [ 26 L.Ed.2d at p. 426 ].)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9793977. Public record. Not legal advice.