Petition — Gurtenstein v. California

Supreme Court, U. $.

FILED

NOV 23 1977

MICHAEL RODAK, JR., CLERK

Seoeian Court o the United States

October Term, 1977

No... A= FB Q

PETER BARRY GURTENSTEIN,

Petitioner,

vs.

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

Petition for a Writ of Certiorari to the Court of Appeal,

Second District, State of California.

Ron MINKIN, Esa.,

Law OFFICES OF RON MINN,

316 West Second Street, Suite 400,

4 Log Angeles, Calif. 90@i2,

sd (213) 485-1001, e.,

Attorney for Petitioner.

8 @

>

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

SUBJECT INDEX

Page

OD iitncenedcciccaisicdnciedniapnabiasinninasdibinihapesnaess 1

EERE ISS NE EE: OVA ae 2

gS a GI cs Se 2

Constitutional Provisions and Statutes Involved .. 3

St ar ee SS ae ae 4

IS Se I tN a san cscsonnensiisiicnensenscstonee 5

Reasons for Granting the Writ ...................22......... 13

II, sicinindhtecsintstentitaienintiinliactebnbticnitinanticsbeenpeinennsne 14

1. The Petitioner Has Standing to Assert

Fourth Amendment Violations Which Oc-

curred in the Search of the Package at Lo-

gan’s Airport, Boston, Massachusetts ........ 14

2. The Evidence Obtained as a Result of the

Search Conducted at Logan’s Airport Was

Obtained in Violation of Fourth Amendment

RAE ae 15

3. 49 U.S.C. §1511(b) and the Common Law

Places an Obligation Upon Airlines to In-

form Shippers That All Packages and Items

Shipped Air Freight Are Subject to an X-

Kay Magnetometer Scanning Process and

Possible Subsequent Search. The Failure to

Provide Reasonable Noticc Denied the Peti-

tioner of Protections Extended Under 49

U.S.C. §1511(b) and the Fourth and Four-

Page

teenth Amendments of the United Siates

ee ea rN

4. The Denial of Pretrial Discovery Denied

the Petitioner of a Fair Trial and Due

Process Protections of the United States

+ ERE Ren team Rat Ma MRE SEN

5. The Warrantless Search of Petitioner’s

Residence Cannot Be Justified as a Search

Based on Consent. The State Court’s Ruling

That Consent Was Freely and Voluntarily

Given Was in Contradiction to the Guide-

lines Set Forth by This Honorable Court

and in Violation of the Petitioner’s Fourth

and Fourteenth Amendment Rights ........

3 ESTER SEN nen na Rey neEcnen ont? FSS oY RES Rae ee

Appendix A. Opinion of the Court c Appeal ..

Appendix B. Order of the Supreme Court of Cali-

TIED. .nconsctinsosnssnrieissasictausinquinsminanelimaemabsiediamediaite

26

29

34

” ee

TABLE OF AUTHORITIES CITED

Federal Cases Page

Alderman v. United States, 394 U.S. 165 (1969) .. 14

Brady v. Maryland, 373 U.S. 83 (1963) ............ 27, 29

Bumper v. North Carolina, 391 U.S. 543 (1968) .. 32

Camara v. Municipal Court, 387 U.S. 523 (1967)

bighiclimniliaaiiiieiipibiataihinadictdmicaiiiiindisiiianipsensini 16, 17, 19

Campbell v. United States, 365 U.S. 85 (1961) .. 26

Chimel v. California, 395 U.S. 752 (1969) ........ 33

Coolidge v. New Hampshire, 403 U.S. 443 (1971)

aE RE OME I SA SSI sR 15

Cooper v. California, 386 U.S. 58 (1967) ........ 14, 19

Johnson v. United States, 333 U.S. 10 (1949) ..19, 32

Katz v. United States, 389 U.S. 347 (1967) ........ 15

Schneckloth v. Bustamonte, 412 U.S. 218 (1973)

IE Pt TEARS ANE I” P=, TS OR ENN DO 29, 30

United States ex rel. Lundergan v. McMann, 417

o §. Be ]> SS | ie 31

United States v. Bell, 464 F.2d 667 (2d Cir. 1975)

I re a 31

United States v. Chadwick, 433 U.S. 1 (1977) ..19, 20

United States v. Clark, 475 F.2d 249 (2d Cir.

ee as 21

United States v. Dalpiaz, 494 F.2d 374 (6th Cir.

GENS BRAT SE RES Tbe 21

iv.

Page

United States v. Davis, 482 F.2d 893 (9th Cir.

PPO aisiuiaaticisiiiiciinniamsaninemniatieal 16, 17, 21, 23

United States v. Epperson, 454 F.2d 769 (4th Cir.

(| RES EL a He Se 16

SOTPD <anivscinictsintssiehsinsenisiultinsinddalialiaaieimanad 22, 23

RGIG) cxceensnsscsnsnssineenccimssbieisipascataiilaaaaaaallil 31

ROBEY <cerninvusarindorisihpniuiapliiiiiaiehiaaaannae 31

BUTS) .-ccnsiisosercininninmseiamaeane 31

BFTD) nccesessserssenssecsarnennnpapeiennciniieinnniiamadaials 16

United States v. Meulener, 351 F. Supp. 1284 (C.D.

CR. EFS) ccecencseneimenenmaenantal 21, 22, 24

United States v. Miner, 484 F.2d 1075 (9th Cir.

BGFD) cecorscorcinnsemccsesianeaieamenteniann 22

STS) .<ccccscsessnnsnseesemseheensiennsiuneaseanaaaaane 31

United States v. Watson, 423 U.S. 411 (1976) .... 31

United States v. Wiener, 534 F.2d 15 (2d Cir.

BETO) ccccevevenssncncentnsssssisinamanaan 31

Vale v. Louisiana, 399 U.S. 30 (1970) ................ 33

Wong Sun v. United States, 371 U.S. 471 (1963).. 26

v.

State Cases Page

Cash v. Superior Court, 53 Cal.2d 72, 346 P.2d 407

I etlia tiiiciaedinrieiinteicennniglndbaideiiiimccivinc 27, 28

Dillion v. Superior Court, 7 Cal.3d 305, 497 P.2d

nes SF a Meee eee tere 33

Engstrom v. Superior Court, 20 Cal.App.3d 240,

EE, SE eer 27

Hill v. Superior Court, 10 Cal.3d 812, 518 P.2d

SERGI a ee 27, 28

Ferguson, In re, 5 Cal.3d 525, 487 P.2d 1234

I teal th ecitiadslastpiecensdcencnwintiidiaesancseboreceensoess 29

Jones v. Superior Court, 58 Cal.2d 56, 372 P.2d

alata ehrietinnnrtpentarmnepspectexeeoeens 26

Kaplan v. Superior Court, 6 Cal.3d 150, 491 P.2d

lie icie rairnrind ithamnneinieepnisinbeirntionsecee 15

Morad v. Superior Court, 44 Cal.App.3d 436, 118

SE |) RES SEE 18, 22, 24

Parrish v. Civil Service Commission, 66 Cal.2d 268,

thi nceeniesedasstincaabnincestos 31

Pitchess v. Superior Court, 11 Cal.3d 531, 522

Be I ei acaladasietnbencindeccensetocnepnoceagers 27, 28

Powell v. Superior Court, 48 Cal.2d 704, 312 P.2d

I aii ilelnthicbensiedntonderensvecesbbortiscovesees 27, 28

People v. Bleile, 44 Cal.App.3d 280, 118 Cal.Rptr.

A ich ialiaihedibdiinsdidscentsenepheeciereyeoccempens 18

People v. Block, 6 Cal.3d 239, 499 P.2d 961

IE iatediaditpiatstdentdntehisnationmetnic—nientanssveqnescenessces 33

People v. Botos, 27 Cal.App.3d 774, 104 Cal.Rptr.

EL 33

Vi.

Page

People v. Dooley, 64 Cal.App.3d 502, 134 Cal.

BR. FED COD comnsessittnantatintntinianiasidaemniaina 22, 24

People v. Escollias, 264 Cal.App.2d 16, 70 Cal.

BR. GD CD ccciscenserssmsnsteencicisinsiideiealicaiuadias 33

People v. Gurtenstein, 69 Cal.App.3d 441, 138 Cal.

RS | ea eer ee |

People v. Hyde, 12 Cal.3d 158, 524 P.2d 830

FTE cinccintonininunseneaninienl 16, 17, 18, 22, 24

People v. Lindsay, 227 Cal.App.2d 482, 38 Cal.

BD, Fae CEROD ccesencssnannmningypmeniaiailies 26

People v. Martin, 45 Cal.2d 755, 290 P.2d 855

OE ee 14, 15

People v. Martinez, 259 Cal.App.2d Supp. 943,

SD CRE, FE cceccesccrsesccenionsintnetnienidaandias 32, 33

People v. McClure, 39 Cal.App.3d 64, 113 Cal.

BD. TD CIGD cccccccmerssinitnrincntindactiieniiaiiiiilags 32

People v. Superior Court, 71 Cal.2d 265, 445 P.2d

BOG CEGEPD ccnesccnscvcccennenenmaiinieiinasaiiaiiicdaiia 32

People v. Riser, 47 Cal.2d 566, 305 P.2d 1 (1956).. 27

People v. Ruster, 16 Cal.3d 690, 548 P.2d 353

ba es ae 32

reople v. Rutherford, 14 Cal.3d 399, 534 P.2d

et | a Te 29

People v. Tiffany, 44 Cal.App.3d 179, 118 Cal.

Oe 8 a a 18

Vii.

Constitution

United States Constitution Page

Amendment IV ........................ Se: S S SB:

ERIE SD LAMM son ee = 18, 19, 20, 21, 26, 30, 34

pCR Core Rar someone nee 3, 13

f RRS re nares 13

Amendment XIV ...... 2, 3, 13, 18, 20, 21, 26, 30, 34

Statutes

Air Transportation Security Act, Pub.L. 93-366,

ee a I IE iittenntnsansinsinsiniishtirseienitaiiinmninnee 21

United States Code, Title 28, Section 1257(3) ...... 2

United States Code, Title 48, Section 1511 ........ > 2

California Health and Safety Code, Section 11351... 4

California Health and Safety Code, Section 11357 .. 4

California Health and Safety Code, Section 11378 .. 4

California Penal Code, Section 995 ........................ 4

California Penal Code, Section 1538.5 .......... 45% 6

———

Supreme Court of the United States

October Term, 1977

A Ricidhiicintendiihdedie

PETER BARRY GURTENSTEIN,

Petitioner,

vs.

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

Petition for a Writ of Certiorari to the Court of Appeal,

Second District, State of California.

The petitioner, Peter Barry Gurtenstein, respectfully

prays that a writ of certiorari issue to review a final

order issued on August 25, 1977, by the Supreme

Court of the State of California denying the petitioner

a hearing on his petitions to review the California

Court of Appeal judgment rendered on April 29, 1977.

Opinions Below.

There was no formal opinion rendered by the Su-

preme Court of the State of California. The denial

of petitioner’s petition for hearing is reported in the

Minute Orders of the California Supreme Court of

August 25, 1977, 2d Crim. 28714, Div. 5 (Appendix

A, infra.) The opinion of the Court of Appeal of

the State of California, Second Appellate District, Di-

vision Five, is reported at 69 Cal.App.3d 441, 138

Cal.Rptr. 161 (1977). (This opinion is reproduced

in Appendix B to this Petition. )

_

Jurisdiction.

The denial order of the Supreme Court of the State

of California was filed and entered on August 25,

1977. (See Appendix A, infra.) The jurisdiction of

this Court is invoked under the provisions of 28 U.S.C.

§1257(3).

Questions Presented.

1. Whether the evidence used against petitioner in

the state prosecution was obtained in violation of his

Fourth Amendment and Fourtcenth Amendment rights

under the Constitution of the United States.

2. Whether 49 U.S.C. §1511(b) and the common

law places an obligation upon airlines to inform shippers

that all packages and items shipped air freight are

subject to an X-ray, magnetometer scanning process

and possible subsequent search. Whether the failure

to provide to the shipper reasonable notice of the

airline search procedure denied him of protections ex-

tended under 49 U.S.C. §1511(b) and the Fourth

and Fourteenth Amendments of the United States Con-

stitution.

3. Whether the denial of pretrial discovery motions

denied the petitioner a fair trial and due process

protections of the United States Constitution.

4. Whether the state court’s ruling that the consent

to conduct a warrantless search of the petitioner’s home

was freely and voluntarily given was in contradiction

to the guidelines set forth by this Honorable United

States Supreme Court and in violation of the petitioner’s

Fourth and Fourteenth Amendment rights.

Constitutional Provisions and Stat. tes Involved.

Constitution of the United States, Amendment IV:

“The right of the pople to be secure in their

persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be vio-

lated, and no Warrants shall issue, but upon prob-

able cause, supported by Oath or affirmation,

and particularly describing the place to be

searched, and the persons or things to be seized.”

Constitution of the United States, Amendment V:

“No person shall . . . be compelled in any

criminal case to be a witness against himself,

nor be deprived of life, liberty, or property, without

due process of law. .. .”

Constitution of the United States, Amendment XIV,

8]:

. nor shall any state deprive any person

of life, liberty, or property without due process

of law... .”

49 United States Code, Section 1511:

“(a) The Administrator shall, by regulation,

require any air carrier, intrastate air carrier, or

foreign air carrier to refuse to transport—

(1) Any person who does not consent to

a search of his person, as prescribed in Section

1356(a) of this title, to determine whether

he is unlawfully carrying a dangerous weapon,

explosive, or other destructive substance, or

(2) Any property of any person who does

not consent to a search or inspection of such

property to determine whether it unlawfully con-

tains a dangerous weapon, explosive, or other

destructive substance.

“

iii

Subject to reasonable rules and regulations prescribed

by the Administrator, any such carrier may also refuse

transportation of a passenger or property when, in

the opinion of the carrier, such transportation would

or might be inimical to safety of flight.

(b) Any agreement for the carriage of persons

or property in air transportation or intrastate air

transportation by an air carrier, intrastate air car-

rier, or foreign air carrier for compensation or

hire shall be deemed to include an agreement

that such carriage shall be refused when consent

to search such persons or inspect such property

for the purposes enumerated in subsection (a)

of this section is not given.”

Statement of the Case.

On June 5, 1975, in a five-count information, the

petitioner was charged on Count I, violation of Cali-

fornia Health and Safety Code, Section 11378a, namely,

possession of barbiturates for sale; Count II, violation

of California Health and Safety Code, Section 11351a,

namely, possession of amphetamines for sale; and

Count V, violation of California Health and Safety

Code, Section 11357a, namely, possession of marijuana.

On June 6, 1975, petitioner was arraigned and en-

tered pleas of not guilty to all counts. Appellant’s

motions under California Penal Code, Section 995 to

set aside the Information was presented and denied

on January 8, 1976.

On February 19, 1976, a motion for pretrial dis-

covery was presented and denied.

On March 3 and 4, 1976, petitioner’s motion pur-

suant to California Penal Code, Section 1538.5 was

presented and denied. On March 4, 1976, petitioner

ee ee ree ee ree ee

ae ner = oe

eee

ee re ~

a

withdrew his earlier pleas on not guilty and entered

a plea of guilty to Count I of Information No. A

188 223. Counts II and V were dismissed.

On April 19, 1976, petitioner, through his attorney,

filed a notice of appeal. On September 8, 1976, peti-

tioner filed his opening brief to the Court of Appeal,

State of California, Second Appellate District. In an

opinion filed on April 29, 1977, the California Court

of Appeal, Second Appellate District, Division Five,

held that there was no error in the trial court’s refusal

to grant appellant’s motion for discovery. Further, the

court held that the search which took place at Logan

Airport in Boston was reasonable and in addition,

the court found that the search conducted at the resi-

dence was not unlawful, since the court deemed it

to be made pursuant to the appellant’s consent. In

conclusion, the court held that the motion to suppress

evidence pursuant to California Penal Code, Section

1538.5 was properly denied and the lower court judg-

ment was affirmed. (See Appendix A.)

On June 9, 1977, and August 18, 1977, petitioner

filed, respectively, a Petition for Hearing and Supple-

mental Petition in the Supreme Court of the State

of California. On August 25, 1977, the petitions were

summarily denied. (See Appexdix B.)

Statement of the Facts.

On April 9, 1975, a Trans World Airline employee,

FRANK CAMPBELL, was working in the air freight

shipment department of Logan Airport, Boston, Mas-

sachusetts. At approximately 3:15 p.m., of that date,

CAMPBELL accepted a Next Flight Out (NFO) ship-

ment, destination Los Angeles, from an unidentified

male. The man stated that the package contained cloth

—

material and he wanted the package to be shipped

on the 4:00 p.m., flight of that day.

CAMPBELL noticed that the package had neither

the name nor address of a consignee. Upon being

informed that the information should be supplied, the

shipper listed “One of a Kind” as the consignee.

CAMPBELL felt that this was unusual and testified

at the suppression of the evidence hearing pursuant

to California Penal Code, Section 1538.5, “I suspected

that this could be a bomb that was in this bag. . . .”

CAMPBELL had not told the shipper that the package

would be x-rayed, nor were there any signs or notices

warning the shipper of the x-ray procedure and the

possible search of the shipment. After the shipper left,

CAMPBELL scanned the package through the x-ray

machine. The machine showed no signs indicating metal-

lic contents and merely indicated the general outline

of a suitcase inside the box.

CAMPBELL indicated that he had no prior experi-

ence in x-raying bolts of cloth or fabric. He further

admitted that he had not received any formal training

in the operation of the x-ray magnetometer machine

from anyone, including the airlines, manufacturer of

the machine and governmental agencies.

With regard to the type of image that CAMPBELL

was generally. on guard for when x-raying packages,

the following critical testimony was elicited at the sup-

pression hearing:

“Q. BY MR. MINKIN: What would you see

on the x-ray machine which would suggest to

you that there was an explosive device inside

of a package? Can you tell this court?

“A. Yes, If you saw something in there that

looked like metal or iron or anything like that,

—_—— ~~,

LES EP

ov

then you would draw the conclusion that this

could very well be an explosive device. Therefore,

you would open it up and check it.

“Q. All right.

“A. All right.

Now, when you talk about metal or iron, are

you talking about those substances as a shield

so that an x-ray picture could not be taken of

the interior? Or, are you talking about compo-

nents that are made of metal?

“A. I'm talking about the contents of this

package or bag. If there was any items like that

in there that looked like an explosive device, it

would show up on the x-ray machine.

“Q. All right.

Now, did you have in your mind on that occa-

sion what kind of device would be an explosive

device that would show up on the x-ray machine?

Did you have some image in your mind of what

you're looking for?

“A. Well, yes. To a certain extent, you would.

“Q. Okay.

Would you tell the court what kind of device

you are looking for?

“A. Well, if I saw something inside the bag

that looked like a can or an oblong article, any-

thing in that—in the form of iron, or it could

even be tin, that could show up like an explo-

sive device—

“Q. Okay. ~

I think we are all familiar with the explosive

device the alarm clock and, you know, the sticks

of dynamite.

“A. That’s correct.

ieibes

“Q. That would be one image that you have

in mind; right?

“A. Yes.

“Q. Now, were you aware at that time that

there were other kinds of explosive devices, other

than the sterectype alarm clock with the sticks

of dynamite that would be activated by the alarm

clock?

“A. No. I don’t think it was.

“Q. So essentially at that time you were look-

ing for sticks of dynamite aid some kind of timing

device which would activate the explosive?

“A. That is correct.”

The package in question was described as a taped

cardboard box, 18” x 6” to 8”, weighing approximately

30 pounds. CAMPBELL felt that the package seemed

somewhat heavy; he indicated that this might be due

to the fact that most shippers have an interest in

packing as much as possible into a given box.

Based on his suspicions, CAMPBELL notified his

supervisor who summoned Officer RICHARD DAVIS,

assigned to the bomb squad of the Massachusetts State

Police. Upon DAVIS’ arrival within a few minutes,

he was informed by CAMPBELL of the NFO pack-

age; of the shipper’s insistence that the package be

shipped on the 4:00 p.m. flight to Los Angeles; of

the x-ray picture that showed the box “to be empty”;

of the initial absence of a name and address on the

package; and of the apparent nervousness of the shipper.

At the suppression hearing, officer DAVIS testified

that based on foregoing factors, he speculated that

the package may have contained some kind of non-

metallic bomb that could possibly not show up on

~~

the x-ray niachine. DAVIS had been told that the

purported content of the package was cloth. DAVIS

indicated that on prior occasions when the x-ray showed

blank, he either did not open the package or upon

opening such packages, he found no bombs. DAVIS

testified that he was concerned about the shipper’s

insistence that the package go out on the 4:00 p.m.

(next flight out) plane. However, DAVIS also stated

that wanting a package to depart on the next flight

is not suspicious in itself.

In order to search the package, DAVIS decided

to open it where it was, at the air freight shipment

area. Upon examining the package DAVIS noticed

that the top of the box was open and that he was

able to see a suitcase inside the box. DAVIS proceeded

to inspect the box for “booby traps”. He was satisfied

that there were no traps and slid the suitcase out

onto the counter. DAVIS next examined the suitcase

for traps or anti-opening devices. Again, he detected

none, The locked suitcase was opened by playing with

the combination lock. Upon opening the suitcase,

DAVIS discovered that it contained pills in transparent

plastic baggies.

This search was conducted without a search warrant

and without officer DAVIS personally passing the box

or suitcase through the x-ray device prior to opening

the shipment. After conducting the search of the locked

suitcase, narcotic officers were summoned to the scene.

(From this point, the events jump to occurrences

in Los Angeles, California, on April 15, 1975.)

On April 15, 1975, at approximately 8:30 p.m.,

pursuant to a surveillance of the “One of a Kind

Dress Shop” in Los Angeles, California, a woman,

ati

later identified as KATHLEEN CAMPBELL, was ob-

served leaving the dress shop and followed to the

Los Angeles International Airport.

At the Los Angeles International Airport, CAMP-

BELL was observed receiving a package from an airline

employee. This package contained controlled substances

and had been dusted with ultraviolet powder for identi-

fication purposes. CAMPBELL was followed to a house

in the Palos Verdes Estates, Los Angeles County, Cali-

fornia. At this time approximately 7 to 8 law enforce-

ment officers were deployed around the house.

Special Agent JOSEPH DALY knocked on the door

of the residence and through a window in the front

door, covered with a thin gauze curtain, DALY observed

the petitioner approach the door. Upon announcing,

“Federal Agents, you are under arrest,” he observed

the petitioner move quickly toward the rear of the

house. At this point, entry was forced. Immediately

after hearing the forced entry at the front door, agents

stationed at the rear door forced entry after announcing

“Police Officers”.

Following the entry into the house, petitioner GUR-

TENSTEIN and KATHLEEN CAMPBELL were im-

mediately handcuffed. The petitioner was taken into

a bedroom at the rear of the house. In this bedroom

narcotic agents observed the suitcase in question and

also observed on the floor of the bedroom a cardboard

box top containing a green leafy substance resembling

marijuana. The petitioner was then formally placed

under arrest for possession of dangerous drugs and

advised of his rights pursuant to Miranda.

At this point, the agents attempted to obtain consent

from the petitioner to search the premises. Regarding

_~s-— -

this point, Officer STANLEY of the Los Angeles Police

Administrative Narcotics Division, testified as follows

at the evidentiary suppression hearing:

“A. I advised him that I wanted to search

the house for any additional contraband, narcotics.

“He said—

“And I advised him that could either apply

for a search warrant from a magistrate, and that

the magistrate would have to make a decision.

Or I could have his consent to search the house.

“And he hesitated and said that, briefly, that

I could go ahead and search the closet.

“And I told him that that wasn’t enough; that

if I—if I was to complete my work or that I wanted

to complete my total work, that I would have

to have a consent to search the entire house,

and I would go down and apply for a search

warrant.

“And he then stated that, ‘Well, you’ve got

the marijuana. Go ahead and search. You can go

ahead and search the house.’ ”

The officers then proceeded to conduct a search

of the residence. A brown suitcase was found inside

the closet of the same bedroom where the petitioner

had been placed. The petitioner stated to the officers

that the suitcase was not his. The officers forced entry

into the suitcase with a screwdriver. The suitcase was

discovered to contain seven bags of red tablets, later

determined to be 7,000 secobarbitals.

Officers proceeded to seize three large bags of seco-

barbitals from a small box found in the bedroom;

approximately 1,000 secobarbitals from a jar on a

dresser drawer; various narcotics paraphernalia; am-

autfiiun

phetamines; marijuana and hashish from a dresser

drawer.

Officer STANLEY testified that at some point after

the search had begun, the petitioner was asked to

sign a written consent to search form, but refused

to do so.

The petitioner was charged with violations of the

California Health and Safety Code in an information

issued on June 5, 1975.

abhi

REASONS FOR GRANTING THE WRIT.

It is requested that this Honorable Court grant the

writ because the petitioner was denied his rights under

the Fourth, Fifth and Sixth Amendments of the United

States Constitution. Further, the method of x-raying

and searching the package at Logan’s Airport, Boston,

Massachusetts, did not comply with the protections

extended under 49 U.S.C. §1511 and was in violation

of the Fourth Amendment. Violations of the above

listed amendments are made applicable to state action

by the Fourteenth Amendment of the United States

Constitution.

—T

ARGUMENT.

1. The Petitioner Has Standing to Assert Fourth

Amendment Violations Which Occurred in the

Search of the Package at Logan’s Airport, Boston,

Massachusetts.

Even though the shipper, whose contact with the

TWA air freight employee originated the series of

events which led to the arrest of the petitioner, was

never arrested nor identified, the petitioner submits

that he has standing to assert violations of Fourth

Amendment iights in the search of the package and

Suitcase during the activity of police agents at Logan’s

Airport, Boston, Massachusetts.

The petitioner concedes that a vicarious exclusionary

rule is not required under the present interpretation

of the Fourth Amendment. Alderman v. United States,

394 U.S. 165, 171-176 (1969). However, it is equally

clear that this interpretation does not bar a State to

“impose higher standards on searches and seizures than

required by the Federal Constitution if it chooses to

do so.” Cooper v. California, 386 U.S. 58, 62 (1966).

In addition, states “may extend the exclusion rule and

provide that illegally seizes evidence is inadmissible

against anyone for any purpose.” Alderman v. United

States, supra at 175.

The California courts have adopted a liberal policy

in the exercise of exclusionary rights extended by the

Fourth Amendment. The Martin rule of vicarious stand-

ing in California rests “not on the ground that the

Government must not be allowed to profit by its own

wrong and thus encouraged in the lawless enforcement

of the law.” People v. Martin, 45 Cal.2d 755, 761,

290 P.2d 855 (1955). Thus, California law provides

_

standing to exert one’s exclusionary rights “whether

or not it (the evidence) was obtained in violation

of the particular defendant’s constitutional rights.” Jd.

This interpretation and policy was fully discussed

and reaffirmed in Kaplan v. Superior Court, 6 Cal.3d

150, 161, 491 P.2d 1 (1971).

In the present case, the series of events, which led

the Government agents to the pétitioner, aroce from

the conduct at Logan’s Airport, Boston, Massachusetts.

The claimed violation of Fourth Amendment protections

as a result of the search of the box and suitcase

shipped directly by the police to petitioner GURTEN-

STEIN. The items discovered were used to file the

charges against petitioner, and in addition, were at

the foundation of the entire proceedings.

Thus, based on the vicarious exclusionary rule fol-

lowed by the California courts, the petitioner has stand-

ing to assert a violation of Fourth Amendment protec-

tions which occurred in the search conducted at Logan’s

Airport, Boston, Massachusetts.

2. The Evidence Obtained as a Result of the Search

Conducted at Logan’s Airport Was Obtained in

Violation of Fourth Amendment Protections.

It is well established that a search conducted without

a warrant is viewed with closer scrutiny than those

searches in which a warrant has been issued by a

magistrate. The United States Supreme Court in Cool-

idge v. New Hampshire, 403 U.S. 443, 454-455 (1971),

‘quoting from Katz v. United States, 389 U.S. 347,

357 (1967), stated the well accepted principle that,

“searches conducted outside the judicial process, with-

out prior approval by judge or magistrate, are per

se unreasonable under the Fourth Amendment—subject

atin

only to a few specifically established and well-delineated

exceptions.” (emphasis in original).

This Honorable Supreme Court has never directly

dealt with the validity and rationale of airport screen-

ings and searches, yet, such searches have generally

been permitted under an administrative search excep-

tion, United States v. Davis, 482 F.2d 893 (9th Cir.

1973); People v. Hyde, 12 Cal.3d 158, 524 P.2d

830 (1974); Camara v. Municipal Court, 387 U.S.

523 (1967); or under a Terry search rationale, United

States v. Ruiz-Estrella, 481 F.2d 723 (2d Cir. 1973);

United States v. Epperson, 454 F.2d 769 (4th Cir.

1972); United States v. Lindsey, 451 F.2d 701 (3d

Cir. 1971).

The petitioner does not refute the accepted legality

of airport screening devices, but he submits that the

use of these machines does not automatically provide

carte blanche authority to search packages at will.

The leading California case on the subject of airport

screening searches, People v. Hyde, supra, provides

guidance in defining the purpose of this administratiave

search:

“lijn upholding airport screening procedures

because of their regulatory nature, we recognize

that ‘[t]he scope of the search must be ‘strictly

tied to and justified by’ the circumstances which

render its initation permissible.’” (citations omit-

ted). “Preboarding inspections must be confined

to minimally intrusive techniques designed solely

to disclose the presence of weapons or explosives.”

Id., at 168. (Emphasis added. )

It appears that under the administrative purpose

doctrine a warrantless search may be executed provided

etjiitia

it meets a test of reasonableness. Untied States v.

Davis, supra at 910; Camara v. Municipal Court, 387

U.S. 523; People v. Hyde, supra at 168. For a valid

warrantless search of a package or person intended

to be placed on a plane, there must be some exigent

circumstances to create an expectation that explosives

or firearms are contained within the package or in

control of the individual. People v..-Hyde, Id. It becomes

“reasonable” to search a package intended to be placed

aboard an airplane only when such exigent circum-

stances exist.

The petitioner submits that the facts before Massa-

chusetts State Police Officer DAVIS did not give rise

to a reasonable expectation that the package contained

explosives. Thus, the warrantless search conducted by

Officer DAVIS violated Fourth Amendment protections.

In the instant petition, the x-ray of the package

did not show the presence of any metallic or explosive-

like items within the package. When the officer opened

the package, he did so without first passing it through

the x-ray scanner, personally. He opened the shipment

merely on the advice of an airline employee, who

had not even been formally trained on the use of

the x-ray machine.

Upon discovering the enclosed suitcase, the police

officer examined the exterior of the suitcase and found

no wires or other indication of explosives. Although

Officer DAVIS had no contact with the shipper, no

examination of the package through the x-ray scanner

and no signs of wires or other explosive hook-ups

upon examining the suitcase, he still continued to search

the contents of the suitcase. The petitioner submits

that this action is repugnant to the protections afforded

—_ o

by the Fourth and Fourteenth Amendments. Granted

that airport searches can be conducted on less than

probable cause to search, the present case lacks specific

and articulable facts to arouse a reasonable suspicion

regarding the contents of the package.

The California cases covering airport searches all

involved some specific factor which logically justified

and warranted additional intrusion into the passenger’s

privacy. In four California cases a magnetometer scan

gave a positive reading for metal. See People v. Hyde,

supra; People v. Tiffany, 44 Cal.App.3d 179, 118

Cal.Rptr. 462 (1974); People v. Bleile, 44 Cal.App.3d

280, 118 Cal.Rptr. 556 (1974); Morad v. Superior

Court, 44 Cal.App.3d 436, 118 Cal.Rptr. 519 (1974).

In both Hyde and Morad, the defendants produced

a positive reading on the magnetometer scan and fitted

the F.A.A. behavioral profile of a potential hijacker.

The petitioner submits that the observations of inno-

cent facts by Officer DAVIS did not justify the intrusion

into the cardboard box and the suitcase. Since the

purpose of the screening process is to identify those

items of potential danger, it must be concluded that

it becomes “reasonable” to search a package intended

to be placed aboard an airplane only when such exigent

circumstances exist. Since the circumstances before the

airline employee and the officer did not establish these

facts as an “exigent” situation, the petitioner contends

that the evidence present in this case is insufficient

to justify the warrantless search of the package.

—

This Honorable Court in United States v. Chadwick,

433 U.S. 1, 97 S.Ct. 2476 (1977), provided the follow-

ing fundamental principles:

Our fundamental inquiry in considering Fourth

Amendment issues is whether or not a search

or seizure is reasonable under all the circum-

stances. Cooper v. California, 386 U.S. 58, 87

S.Ct. 788, 17 L.Ed.2d 730 (1967). The judicial

warrant has a significant role to play in that

it provides the detached scrutiny of a neutral

magistrate, which is a more reliable safeguard

against improper searches than the hurried judg-

ment of a law enforcement officer “engaged in

the often competitive enterprise of ferreting out

crime.” Johnson v. United States, 333 U.S. 10,

14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1949).

Once a lawful search has begun, it is also far

more likely that it will not exceed proper bounds

when it is done pursuant to a judicial authorization

“particularly describing the place to be searched

and the persons or things to be seized.” Further,

a warrant assures the individual whose property

is searched or seized of the lawful authority of

the executing officer, his need to search, and

the limits of his power to search. Camara y.

Municipal Court, 387 U.S. 523, 532, 87 S.Ct.

1727, 1732, 18 L.Ed.2d 930 (1967). 97 S.Ct.

at 2482. ;

As in Chadwick, the present case presents a situation

where the police maintained control over the package.

There was no fear that the contents could be destroyed

by the shipper and the level of expectation of privacy

—20—

is the same whether the item is a suitcase wrapped

in a package or a double-locked footlocker. Based

upon these facts, there was no justifiable purpose for

violating the shipper’s and petitioner’s Fourth Amend-

ment protections.

The petitioner submits that based upon the facts

before the Government officer, he did not have suffi-

cient evidence to reasonably conclude that the package

and suitcase be searched contained explosives. It is

necessary to draw a line to prevent the police from

usurping the duties of an impartial magistrate.

“(When no exigency is shown to support the need

for an immediate search, the Warrant Clause places

the line at the point where the property to be searched

comes under the exclusive dominion of police author-

ity.” United States v. Chadwick, 97 S.Ct. at 2486.

Further, the court in United States v. Davis, supra,

heeded this warning: “[T]here is an obvious danger

. . . that the screening of passengers and their carry-

on luggage for weapons and explosives will be subverted

into a general search for evidence of crime. If this

occurs, the courts will exclude the evidence obtained.”

(482 F.2d at 909, footnotes omitted). The petitioner

contends that in the present case, there was insufficient

evidence to allow the officer to view the situation

as “exigent” and therefore any subsequent search of

the package and suitcase was unreasonable under the

circumstances and violative of the Fourth and Four-

teenth Amendments.

— =

3. 49 U.S.C. §1511(b) and the Common Law Places

an Obligation Upon Airlines to Inform Shippers

That All Packages and Items Shipped Air Freight

Are Subject to an X-Ray Magnetometer Scanning

Process and Possible Subsequent Search. The

Failure to Provide Reasonable Notice Denied the

Petitioner of Protections Extended Under 49

U.S.C. §1511(b) and the Fourth and Fourteenth

Amendinents of the United States Constitution.

In 1974, Congress provided a comprehensive act

covering air transporation protection and security. (Air

Transportation Security Act, Pub. L. 93-366, Title II,

88 Stat. 415.) Over the years the courts have estab-

lished rules, regulations and guidelines concerning air

transportation security both by defining the laws pro-

vided and creating common law protections as necessary

to protect Fourth Amendment rights.

Of major concern has been the question whether

a passenger or shipper must be given notice of a

right to refuse the magnetometer search and withdraw

from boarding the flight or shipping the package. This

is commonly known as “no-fly” option.

A number of jurisdictions view this option as a

prerequisite to any search. Its necessity is rooted as

an argument against the proposal that such magnetom-

eter and subsequent searches are valid as a consent

search. Many courts have ruled that there can be

no consent without the initial opportunity to gather’s

one’s belongings, walk way and choose not to board

the plane. United States v. Davis, 482 F.2d 893, 912

(9th Cir. 1973); United States v. Ruiz-Estrella, 481

F.2d 723, 728 (2d Cir. 1973); United States v. Dalpiaz,

494 F.2d 374, 376 (6th Cir. 1974); United States

v. Clark, 475 F.2d 249 (2d Cir. 1973); United States

—_2?-—

v. Meulener, 351 F.Supp. 1284, 1289-1291 (C.D. Cal.

1972); United States v. Miner, 484 F.2d 1075, 1076-

1077 (9th Cir. 1973); People v. Hyde, supra at 169;

People v. Dooley, 64 Cal.App.3d 502, 134 Cal.

Rptr. 573 (1976); Morad v. Superior Court, 44 Cal.

App.3d 436, 118 Cal.Rptr. 519 (1974). Also see,

Chief Judge FRIENDLY’S concurring opinion in

United States v. Bell, 464 F.2d 667, 675 (2d Cir.

1975).

The 1974 Air Transportation Security Act set forth

further protections with regard to air travel and ship-

ment. In 1977, the Ninth Circuit in United States

v. Fannon, 556 F.2d 961 (9th Cir. 1977), had occa-

sion to interpret the statutes provided in the 1974

Act and stated:

As a threshhold matter, searches of articles

presented for air freight shipment . . . must be

preceded by reasonable notice to the shipper that

search is a condition of carriage. This notice may

take various forms and will be deemed reasonable

if sufficient to apprise the ordinary shipper of

the condition. In effect, our holding in this case

does no more than make explicit, under constitu-

tional compulsion, the conditional consent to

search which Congress impliedly inserted in all

agreements for the carriage of goods in air trans-

portation by enacting Section 1511(b). /d., at

965. (footnotes omitted. )’

1The retroactive application is of concern here and the Fannon

court refused to determine the issue. However, the petitioner

submits that the ruling in Fannon is applicable in the t

petition. The section cited in the opinion, 49 U.S.C. 1511(b)

was enacted in 1974, prior to the circumstance in the present

petition. Since this section was in effect at the time of the

search, the petitioner contends that the language in Fannon

—_—

The petitioner submits that failure to notify the

shipper of the airlines’ procedure of x-raying the package

and the potential of a subsequent search is a fatal

flaw in the action taken at Logan Airport. It is clear

that both the common law and the statutory law requires

an individual the opportunity to refuse to submit to

an X-ray screening process by choosing not to board

the plane. It is the petitioner’s contention that the

same privilege of choice must apply to an individual

who is placing a package aboard the plane for shipment.

The shipper must be afforded the opportunity to remove

the package if he so desires prior to any screening

or x-ray procedure.

The petitioner contends that the concerns protected

by the screening process (i.e., the prohibition of fire-

arms, bombs or other explosives from being placed

or carried upon the plane) are the same whether these

devices are being personally brought aboard or shipped

by air freight. The underlying purpose behind this

screening process is to protect the passengers that board

from inconvenience, injury or death.

As expressed in the case of United States v. Davis,

supra, at 910-911, “[i]t follows that airport screening

searches are valid only if they recognize the right

of a person to avoid search by electing not to board

the aircraft.” (footnote omitted, emphasis added.) The

court continued to state that, “airport screening

searches of the persons and immediate possessions of

merely clarifies the rights afforded in 1974 to the public in

eral who ship their packages thr air transportation.

That right being the notice to the that “search is

a condition of carriage,” United States v. Fannon, supra, at

965; and the opportunity to “avoid submitting to a search

alt by electing not to board the airplane.” People v.

Hyde, supra, at 158. Aslo see United States v. Bell, 464

F.2d 667, 675 (2d Cir. 1972).

=titine

the persons and immediate possessions of potential pas-

sengers for weapons are reasonable under the Fourth

Amendment provided each prospective boarder retains

the right to leave rather than submit to the search.”

Id., at 912. (Emphasis added.) The petitioner submits

that it is a logical extension of this rule to afford

a shipper the opportunity to withdraw the package

from the method of air transportation in order to

avoid a screening or x-ray device and any further

search.

In the present case the shipper was not afforded

such an opportunity. He was not informed by the

airline employee of the screening process nor were

there any warning signs or other indication or the

impending x-ray procedure, The opportunity and deci-

sion to remove the package prior to such a screening

process may only exist from the knowledge that the

x-ray scan is the procedure to be followed by the

airline.

“To meet Fourth Amendment guarantees, the

prospective passenger must be advised that he

has to submit to a search if he wants to board

the plane, but that he can decline to be searched

if he chooses not to board the aircraft.” United

States v. Meulener, supra at 1289-1290.

California cases also provided that, “airport screen-

ing procedures must be as limited in intrusiveness as

is consistent with their justification, and an individual

may avoid submitting to a search altogether by electing

not to board the airplane”. People v. Hyde, supra

at 169. Also see People v. Dooley, supra; and Morad

v. Superior Court, supra. In addition, then California

Chief Justice Wright’s separate concurring opinion in

Hyde (with Justices TOBRINER and SULLIVAN con-

—~- -—~p

==

curring) the issue of advance notice to the public

was reiterated and emphasized in the following state-

ment:

“[O]Jf signal importance is the fact that airline

passengers have advance notice that they will be

subjected to a preentry screening for weapons

and explosives. Although advance notice in itself

cannot operate to deprive an individual of his

Fourth Amendment rights, it nevertheless had been

recognized by the courts and commentators as

a factor of major significance in evaluating the

extent to which individual privacy is compromised

and intruded upon by governmental action. Ad-

vance notice enables the individual to avoid the em-

barrassment and psychological dislocation that sur-

prise search causes. . . . Advance notice, there-

fore, operates to diminish significantly the privacy

intrusion incident to airport searches and acts

as a counterblance to the reduced level of Fourth

Amendment pprotections surrounding such

searches.” |

Since there was no such warning to the shipper,

he had no opportunity to regain possession of the

package, cancel the shipment order, and refuse to sub-

ject his package to such a search. The cases and

the statutory language make it clear that the right

to refuse to a scanner or other x-ray device is afforded

to a passenger who intends to board a plane. The

petitioner submits that such a right must extend to

an individual who intends to place a package aboard

a plane. In both situations, it is necessary for the

party involved to have that opportunity to walk away,

and avoid being subjected or having the package being

subjected to an x-ray or screening device. The petitioner

aie

contends that since the shipper was not extended such

right of choice, that any subsequent search becomes

fatally defective.

The petitioner submits that the search of the package

and suitcase was conducted in violation of both the

statutory requirement to warn of such possible searches

and the common law obligation placed upon the airlines,

as warranted by the Fourth and Fourteenth Amend-

ments, to provide a shipper or passenger the opportunity

to withdraw from the search procedure and not board

the plane. Not only is the search conducted at Logan’s

Airport, Boston, Massachusetts, illegal and constitution-

ally invalid, but all subsequent evidence obtained as

a result of the initial search must be suppressed.

When the method of obtaining evidence is illegal,

this unconstitutional activity taints the acquisition of

the evidence and, therefore, all products obtained

through this unlawful process must be excluded as

fruits of the poisonous tree. Wong Sun v. United States,

371 U.S. 471 (1963). Such is the case in the present

petition, and therefore, the petitioner submits that all

evidence obtained, including the items seized in the

searches conducted in California, must be excluded.

4. The Denial of Pretrial Discovery Denied the Peti-

tioner of a Fair Trial and Due Process Protections

of the United States Constitution.

While it is admitted that the refusal of discovery

of evidence in possession of the prosecution does not

necessarily violate a defendant’s rights of due process

(Jones v. Superior Court, 58 Cal.2d 56, 59, 372 P.2d

919 (1962); People v. Lindsay, 227 Cal.App.2d 482,

38 Cal.Rptr. 755 (1964); Campbell v. United States,

365 U.S. 85, 86 (1961)), this concept nevertheless

_ =

still is repugnant to our Constitution’s principles of

justice and the right to a fair trial. Cash v. Superior

Court, 53 Cal.2d 72, 346 P.2d 407 (1959); Powell

v. Superior Court, 48 Cal.2d 704, 312 P.2d

698 (1957); Pitchess v. Superior Court, 11 Cal.3d

531, 522 P.2d 305 (1974). In addition, the court

in Brady v. Maryland, 373 U.S. 83 (1963), ruled

that the suppression by the prosecutor of favorable

evidence for the defendant “was a violation of the

Due Process Clause of the Fourteenth Amendment”.

375 US. at 86.

The basic theory followed by California courts con-

cerning criminal discovery was expressed in People

v. Riser, 47 Cal.2d 566, 305 P.2d 1 (1956):

Absent some governmental requirement that in-

formation be kept confidential for the purposes

of effective law enforcement, the state has no

interest in denying the accused access to all evi-

dence that can throw light on issues in the case,

and in particular it has no interest in convicting

on the testimony of witnesses who have not been

as rigorously cross-examined and as thoroughly

impeached as the evidence permits. Jd., at 586

(emphasis added); Hill v. Superior Court, 10 Cal.

3d 812, 816, 112 Cal.Rptr. 257 (1974); Engstrom

v. Superior Court, 20 Cal.App.3d 240, 243, 97

Cal.Rptr. 484 (1971).

{[{]n contrast to the formal requirements for

civil discovery, an accused in a criminal prosecu-

tion may compel discovery by demonstrating that

the requested information will facilitate the ascer-

tainment of the facts and a fair trial. Pitchess

v. Superior Court, supra at 536, citing Cash v.

atfiinn

Superior Court, supra; and Powell v. Superior

Court, supra at 707.

“Allowing an accused the right to discovery is based

on the fundamental proposition that he is entitled to

a fair trial and an intelligent defense in light of all

relevant and reasonably accessible information.” Pitch-

ess v. Superior Court, supra, at 535; see also Hill

v. Superior Court, supra, at 816.

In the present case, petitioner sought by timely

motion to discover the capabilities and limitations of

the x-ray machine located at Boston’s Logan Airport

used to examine the package subsequently opened and

searched by Officer RICHARD DAVIS. As stated in

an affidavit filed in support of the motion, the desired

information was necessary in ordei to properly prepare

the case for trial; was material and relevant to the

trial; under the control of the prosecution; and not

known to the petitioner or his counsel. It was asserted

below that the requested information would greatly

assist on the issue of probable cause, or lack thereof,

that existed prior to the search of the package and

the subsequent search of the suitcase contained therein.

The importance of this information is clear when the

right to search the package stems from the probable

cause to believe that the package contained a bomb.

Without sufficient probable cause, the contraband sub-

sequently discovered must be suppressed. This element

is at the very root of a fair trial and the discovery

would greatly assist in providing a clear understanding

of the issues. Further, petitioner contended the infor-

mation would facilitate in the ascertainment of the

facts and a fair trial by enabling the rigorous cross-

examination of material witnesses.

—~ SS

Further, the requested information was available to

the prosecution and not otherwise available to the

defense. It is clear that even in the absence of a

request, the state has a duty to disclose all substantial

material favorable to the defense. People v. Rutherford,

14 Cal.3d 399, 534 P.2d 1341 (1975); Brady v.

Maryland, supra, In re Ferguson, 5 Cal.3d 525, 487

P.2d 1234 (1971).

Therefore, petitioner submits the lower court ex-

ceeded and abused its discretion in upholding the

denial of the discovery motion where the requested

discovery would have facilitated the ascertainment of

the facts and a fair trial; where the information was

necessary for the preparation of an informed and intel-

ligent defense; where petitioner specifically enumerated

the desired information and was not engaged in a

“fishing expedition”; and where there was a reason-

able probability the obtaining of the information would

have resulted in a more favorable result for the peti-

tioner. Thus, this denial of discovery constitutes re-

versible error.

5. The Warrantless Search of Petitioner’s Residence

Cannot Be Justified as a Search Based on Consent.

The Siate Court’s Ruling That Consent Was Freely

and Voluntarily Given Was in Contradiction to the

Guidelines Set Forth by This Honorable Court

and in Violation of the Petitioner’s Fourth and

Fourteenth Amendment Rights.

In Schneckloth v. Bustamonte, 412 US. 218

(1973), the court agreed with the California courts

by stating, “that the question whether a consent to

search was, in fact ‘voluntarily’ or was the product

of duress or coercion, expressed or implied, is a ques-

<30—

tion of fact to be determined from the totality of

all the circumstances.” Id., at 227 (emphasis added.)

The court emphasized that the weighing process to

determine whether in fact a defendant’s consent to

search was “voluntary” should not be mechanical:

. it is only by analyzing all of the circum-

stances of an individual consent can it be ascer-

tained whether, in fact, it was voluntary or coerced.

It is this careful sifting of the unique facts and

circumstances of each case that is evidenced in

our prior decisions involving consent searches.

(412 US. at 227.)

The court further noted:

In examining all the surrounding circumstances

to determine if, in fact, the consent was coerced,

account must be taken of the subtly coercive police

questions, as well as the possibly vulnerable sub-

jective state of the person who consents. (412

US. at 229.)

The court warned that a consent to search that

was not the product of the free and unconstrained

will of a defendant should not be tolerated,

. the Fourth and Fourteenth Amendments

require that the consent not be coerced, by ex-

plicit or implicit means, by implied threat or covert

force. For no matter how subtly the coercion

was applied, the resulting “consent” would be

no more than a pretext for the unjustified police

intrusion against which the Fourth Amendment

is directed. (412 U.S. at 228.)

Further, the California courts have applied the prin-

ciple that where an acknowledgment to a search was

dominated by covert threats or by implied assertions

=—=3 ij

of superior authority it is increasingly necessary to

deny the efficacy of any “consent” given. Parrish v.

Civil Service Commission, 66 Cal.2d 268, 269, 425

P.2d 223 (1967).

Petitioner submits that the facts of the present peti-

tion demonstrate that the lower courts were clearly

erroneous in finding that his consent to search, fol-

lowing his arrest, was given freely and voluntarily.

The petitioner was in custody and was immediately

placed in handcuffs.* The officers took the petitioner

into the bedroom where one of the seven or eight

officers present had observed the suitcase they identified

as containing contraband.

After what the officers believed was marijuana, the

officers then requested permission to search the entire

house. Hesitating, petitioner agreed to a limited search

of the bedroom closet. The officer stated the limited

search was not enough, that he must have consent

to search the entire house “to complete his work”.

The officer continued by informing the petitioner that

if his consent was not given, he would obtain a search

2At least one circuit has determined that although the fact

of custody alone does not preclude the giving of a voluntary

consent, it does render the search subj to a more careful

scrutiny. [United States v. Wiener, 534 F.2d 15 (2d Cir. 1976);

citing United States v. Watson, 423 U.S. 411 (1976); United

States v. Candella, 469 F.2d 173, 175 (2d Cir. 1972); United

States ex rel. Lundergan v. McMann, 417 F.2d 519, 521

(2d Cir. 1969).] Another circuit has approached the problem

with the attitude that the obtaining of consent from a person

in custody is inherently suspect. [United States v. Jones, 475

F.2d 723 (Sth Cir. 1973), cert. denied, 414 U.S. 841 (1974).]

Other circuits have emphasized that where a suspect is in

custody, the “psychological atmosphere” in which a consent

to search is obtained is of critical importance. [United States

v. Griffin, 530 F.2d 739, 743 (7th Cir. 1976); United States

v. Rothman, 492 F.2d 1260, 1265 (9th Cir. 1973); United

States v. Hearn, 496 F.2d 236, 241-244 (6th Cir. 1974).]

-— =

warrant. Petitioner was not advised that he had a

right to refuse this warrantless search. After this series

of events, the petitioner finally agreed to a search

of the residence.

Apparently, after giving the oral consent, the peti-

tioner was asked and refused to sign a written consent.

The petitioner in no way assisted the officers in their

search of the residence.

The California courts have viewed this type of situa-

tion with close scrutiny. The fact that consent was

at least partially induced by advising the petitioner

that a search warrant would be obtained if a consent

was not given is by itself insufficient to invalidate

the consent. However, its coercive effect when combined

with other factors is clear. See People v. Ruster, 16

Cal.3d 690, 548 P.2d 353 (1976); People v. McClure,

39 Cal.App.3d 64, 113 Cal.Rptr. 815 (1974). In

addition, though many courts have held that there

is no duty to inform persons of their right to refuse

consent, it has been recognized that “failure to give

such advice may, under the circumstances of a given

case, be a factor to be taken into consideration in

determining whether or not free consent was actually

given.” People v. Superior Court, 71 Cal.2d 265, 270

fn. 7, 445 P.2d 146 (1969); People v. Martinez,

259 Cal.App.2d Supp. 943, 945, 65 Cal.Rptr. 920

(1968).

In the present case, petitioner submits that in consid-

ering the “totality of the circumstances,” the consent

to search was not freely and voluntarily given and

the lower court erred as a matter of law. Johnson

v. United States, 333 U.S. 10 (1949); Bumper v.

North Carolina, 391 U.S. 543 (1968).

wife

Assuming arguendo, that the consent obtained was

voluntarily given, the petitioner submits that such con-

sent was withdrawan* and further that the search of

the entire residence was unreasonable and beyond the

scope necessary under the facts.*

"In People v. Martinez, supra at 946, the court found,

“No reason to distinguish between withdrawal of waiver of

legal representation during investigation and withdrawal of con-

sent to search once given.” Also see People v. Botos, 27

Cal.App.3d 774, 779, 104 Cal.Rptr. 193 (1972); People v.

Escollias, 264 Cal.App.2d 16, 18, 70 Cal.Rptr. 65 (1968).

In the present case, the fact that the petitioner refused to

sign a written consent and the additional failure to assist the

officers in opening a locked suitcase are indicative that the

petitioner withdrew his consent after his initial agreement.

‘The landmark case of Chimel v. California, 395 U.S. 752

(1969), set forth the rule that a search incident to an arrest

is applicable only to the arrestee’s person and to the area

within the immediate control of the person arrested. Also see

Vale v. Louisiana, 399 U.S. 30 (1970). California in People

v. Block, 6 Cal.3d 239, 243, 244, 499 P.2d 961 (1971);

and Dillion v. Superior Court, 7 Cal.3d 305, 314, 497 P.2d

505 (1972) permits the search for additional suspects, but

warned that “the mere possibility of additional persons in the

house without more, is not enough to provide probable cause

to search the entire premises for additional suspects once the

suspects whom the officers had sought were arrested.” In the

present petition, the search was not reasonably confined to

the area immediately under the arrestee’s control. Petitioner

CG irtenstein and Kathleen Campbell were both arrested in a

hallway of the house. They were also immediately handcuffed.

Nevertheless, the officers for some unexplained reason took

Campbell to the kitchen and petitioner Gurtenstein to the bed-

room, instead of immediately transporting each to a police

vehicle. At that point, the officers did not have specific and

articulable facts regarding other possible suspects to justify the

rampant search of the entire residence, including the bedroom.

Once the occupants were in custody and handcuffed, obviously

at that point, the officers did not have a reasonable fear

for their safety or for destruction of evidence. Therefore, the

scope of the search subsequent to the arrest was unreasonable

in scope and the evidence under all circumstances should be

suppressed as a fruit of an illegal search.

ait

Conclusion.

The issues of airport x-ray screenings and searches

are of extreme importance in light of the everyday

use of the airlines for transportation and shipping.

With the conflict in decisions by the various states

and federal jurisdictions, there is a need for direction

and guidance by this Honorable Court. The present

petition raises crucial issues of search and seizure pro-

cedure and statutory interpretation as it relates to air-

port searches and the Fourth and Fourteenth Amend-

ments.

In view of the foregoing arguments, it is respectfully

submitted that this petition be granted.

Ron MINKIN, Eso.,

Attorney for Petitioner.

APPENDIX A.

Opinion of the Court of Appeal.

In the Court of Appeai of the State of California,

Second Appellate District, Division Five.

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent v. PETER BARRY GUR-

TENSTEIN, Defendant and Appellant. 2d Crim. 28714

(L.A.S.C. No. A 188 223).

Filed April 29, 1977

Los Angeles Superior Court No. A 188 223

NEWELL BARRETT, Judge

RON MINKIN for Defendant and Appellant.

EVELLE J. YOUNGER, Attorney General.

JACK R. WINKLER, Chief Assistant Attorney

General Criminal Division.

S. CLARK MOORE, Assistant Attorney General.

NORMAN H. SOKOLOW and ROY C. PREM-

INGER, Deputy Attorneys General for Plaintiff

and Respondent.

Defendant, Peter Gurtenstein, and co-defendant,

Kathleen Ann Campbell,’ entered a plea of guilty

to the crime of possession of barbiturates for the pur-

pose of sale (Health and Safety Code §11378, Subd.

(a)). Proceedings were suspended without imposition

of sentence, and Gurtenstein was placed on probation

for a period of three years on certain terms and condi-

tions. Defendant Gurtenstein appeals from the judgment

(order granting probation), contending (1) that the

trial court erred in denying his motion for discovery;

and, (2) that his motion to suppress evidence (Penal

Code §1538.5) should have been granted.

1Co-defendant, Kathleen Ann Campbell, withdrew her appeal.

axnfinn

The facts adduced in connection with the section

1538.5 hearing were as follows: At about 3:15 p.m.,

on April 9, 1975, Frank Campbeil was working at

the TWA Baggage Service office at Logan International

Airport in Boston, Massachusetts, when a man came

up to the counter with a package. The man said

he wanted it shipped to Los Angeles on TWA’s next

flight which left at 4 p.m. Campbell noticed that it

was a cardboard box (about 18 inches wide and six

to eight inches high) covered with wrapping paper

and taped. He estimated that it weighed about 30

pounds. He also noticed that there was no addressee

or sender written on the package. After Campbell

informed the man this information should be supplied,

he wrote, “One of a Kind” in Los Angeles as the

addressee and the name of a plant company as the

sender. When Campbell wrote up the airbill the man

told him the package contained fabric or cloth. Camp-

bell thought the package weighed more than one that

size containing cloth would weigh. He also noted that

the man appeared to be a “little nervous” and “overanx-

ious.” He kept asking if the package would get on

the next flight. Campbell assured him that it would

get on the aircraft without any trouble and gave him

a copy of the shipping bill.

Because the man seemed so anxious about getting

the package on the 4 o'clock flight and because the

package felt heavier than it should, Campbell suspected

that there might be a bomb in the package. Because

of his suspicions, he had the package X-rayed. However,

the X-ray only showed that there was something like

the shape of a suitcase inside the box. Campbell thought

it was unusual that the man had not mentioned that

there was a suitcase inside the wrapping so he took

a

the package back to his counter area and notified

his supervisor. Thereafter, Officer Davis of the Massa-

chusetts State Bomb Squad was notified. Campbell

apprised him of the situation. Davis picked up the

box and estimated that it weighed between 30 and

35 pounds. Officer Davis was also suspicious about

the package, especially since Campbell was so nervous.

Officer Davis had known Campbell for a long time

and he had never seen him so apprehensive. His suspi-

cion was further aroused when Campbell mentioned

how the man did not originally have the names of

the addressee or sender on the package. He examined

the airbill which the man had signed. He could not

make out a single letter in the person’s signature.

On the basis of his experience as a bomb expert,

the officer was aware of several types of bombs which

did not require any metal in their construction and

which would, therefore, not show up on an X-ray

machine. Most of these bombs are constructed with

a combination of chemicals and plastics. Some bombs

are able to be triggered barometrically as a result

of the lessening of the density of the air when the

aircraft increases its altitude. Some are of the “time-

delay” variety which works by the erosion of acid

through rubber or plastic causing the mixing of two

chemicals which starts a fire. Other than by opening

the package, there is no way to determine if it contains

a non-metallic bomb.

Officer Davis opened the cardboard wrapping and

saw what appeared to be a new Samsonite suitcase.

After examining the cardboard wrapping and suitcase

for “booby trap type devices” he slid the suitcase

onto the counter. He then unlocked the combination

lock and opened it up. Inside were seven transparent

—4.

frozen food type bags containing tablets. The State

Narcotics Unit was then notified. Six days later about

200 of the red tablets and 200 of the white tablets

other officers followed. Upon their arrival Officer Stan-

ley went to the rear of the house while Agent Daly

and Officers Gossett and Walker walked up to the

front of the house. Daly testified that there was a

window in the front door, which was covered with

a thin gauze curtain. After knocking he saw defendant

approach the door. He then announced, “Federal Ag-

ents. You’re unde; arrest” and defendant started running

toward the rear of the house. Giass was shattered.

Daly entered the house and Stanley went in through

the rear door. He ran into a hallway leading into

a rear bedroom and saw defendant already in custody.

The package Campbell picked up at the airport was

on top of the bed. He also saw on the floor a card-

board box top containing marijuana. Stanley took de-

fendant into the bedroom and advised him that he

was under arrest for possession of dangerous drugs.

me ottns Cnt 6 a

then asked defendant if he lived at the residence.

Defendant replied that he was temporarily living there,

enifue

that the people who owned the house were namcd

Willis, and that they were away on vacation. Stanley

looked through defendant’s identification and found

a real estate company’s card. He telephoned the com-

pany and talked with a real estate agent who described

the person who had rented the house. The description

fit defendant. Defendant then admitted, “It’s me. I

rented the house under the name Willis.” Stanley then

told defendant he wanted to search the house for

additional contraband and advised him that he could

either apply for a search warrant or have defendant’s

consent to search the house; that if he applied for

a search warrant it would be up to the magistrate

to determine whether to issue the warrant. Defendant

hesitated briefly and then said he could go ahead

and “search the closet.” The officer replied that that

“wasn’t enough” and to complete his work he would

have to have a consent to search the entire house.

Defendant then stated, “Well, you’ve got the marijuana.

Go ahead and search. You can go ahead and search

the house.” The officers found a brown suitcase inside

the closet. Defendant said it was not his. Officer Stanley

forced it open and inside, he found seven bags of

red tablets resembling Seconal (secobarbital). The offi-

cers also discovered a loaded gun, $5,000 cash, and

various narcotic paraphernalia.

After they were half way through searching the

house, Stanley asked defendant if he would sign a

written consent to search. Defendant refused to sign

a written consent, however, he did not retract or with-

draw his earlier verbal consent.

After the search, an ultraviolet light test revealed

traces of ultraviolet powder on the hands of both

Campbell and defendant.

i we

Testifying in his own behalf, defendant stated that

the first he was aware of law enforcement officers

at his house was when he heard someone yell, “Federal

Agents. You’re under arrest.” A second or two later,

the officers broke through the front door, entered his

house and immediately handcuffed him.

Defendant denied that Stanley advised him of his

rights. He stated that Stanley told him “There’s two

ways we can go about [searching the premises]. We

can either get your consent to search or get a search

warrant. .. . It would be easier for everyone concerned

if consent was given.” Defendant refused to give his

consent. The officer then noticed the tray of marijuana

in the bedroom, and said that that gave them “[prob-

able] cause to search.” The officers then proceeded

to search the residence without his consent. During

their search, Stanley asked him to sign a consent to

search. He refused.

On rebuttal Agent Daly stated that his entry was

made about eight seconds after he announced his pres-

ence.

Defendant made a pretrial motion for discovery of

the following information pertaining to the X-ray ma-

chine located at Boston’s Logan Airport used to exam-

ine the package opened and searched by Officer Davis:

(1) The name of the manufacturer, model and serial

number of the machine; (2) all information and instruc-

tions regarding the standard procedures and principles

in operating the machine; (3) all information,

instruction or manual instructions from the maker, the

airlines or other sources to persons operating the ma-

chine; (4) all information relating to the reaction of

the machine to various items and objects, including

but not limited to cloth, clothing, books, and types

=_ =

of explosive devices; (5) a list of all types of items,

materials, substances, and objects that will not register

on the machine as anything other than a blank

when subjected to the machine; and (6) any and

all other relevant information.

Defendant contends that the trial court erred in

denying this discovery motion. He argues that the infor-

mation requested was material to both the issue of

probable cause to search and in the cross-examination

of prosecution witnesses Frank Campbell and Officer

Davis. He further asserts that the information which

the defense sought to discover was available to the

prosecution and not otherwise available to the defense.

A defendant’s motion to discover is addressed to

the sound discretion of the trial court, which has in-

herent power to order discovery when the interests

of justice so demand. (Pitchess v. Superior Court,

11 Cal.3d 531, 535; Hill v. Superior Court, 10 Cal.3d

812, 816.) “Allowing an accused the right to discover

is based on the fundamental proposition that he is

entitled to a fair trial and an intelligent defense in

light of all relevant and reasonably accessible informa-

tion.” (Pitchess v. Superior Court, supra.) An accused,

however, is not entitled to inspect material as a matter

of right without a prior showing of good cause.

It must appear reasonable that knowledge of such

information will assist him in preparing his defense.

The court has discretion to deny discovery in the

absence of a showing which furnishes a “plausible

justification” for inspection. (Hill v. Superior Court,

supra, at p. 817.)

In the present case, the evidence showed that the

X-ray machine would not reveal a bomb inside a pack-

age if the bomb were the “altimeter type” where chemi-

cullies

cals ignite or combine due to a lessening of pressure.

An explosive device might be detected by an X-ray

only if there were some outline revealed suggesting

such a device, i.e., an item in the shape of a can,

an oblong article, an alarm clock, or sticks of dynamite.

When an X-ray was taken of the package in question,

the machine only showed the outline of a suitcase.

Cainpbell testified that he did not see anything sus-

picious when he X-rayed the package, and Davis testi-

fied that he did not X-ray the package. Thus, the

information requested by defendants in his motion was

not relevant nor could such information have assisted

defendant in preparing his defense. Furthermore, there

is nothing in the record which indicates that such

information was available to the prosecution but not

available to the defense. From an examination of the

record of the hearing on the motion, it appears that

the prosecution did not have such information, however,

the defense in essence argued that it weuld be easier

for the prosecution to obtain it and transmit it to the

defense. Thus, had defendant’s motion been granted,

compliance would have required the prosecution to

prepare the case for the defense. This is an obligation

not imposed by the iaw. (See People v. Cohen, 12

Cal.Anv.3d 29S, 323.) The trial court did not err

in denying defendant’s motion for discovery.

Defendant contends that Officer Davis’ search of

the package at the Boston airport was unlawful because

he possessed no information which justified his suspicion

that the package contained a bomb. This contention

is without merit.

Here, Officer Davis searched the package as part

of a screening program designed to prevent the place-

—

ment of a bomb in aircraft luggage. Contrary to de-

fendant’s assertion, the officer was justified in suspecting

that the package may have contained some type of

explosive device. The man who left the package was

very insistent that the package go to Los Angeles

on the next flight at 4 p.m., even though other flights

were taking off at approximately the same time and

to the same destination. Further; when he initially

handed the package to Campbell, there was no name

of an addressee or sender on the package. The signature

the man placed on the airbill was illegible. Officer

Davis testified that he had known Campbell for a

long time and had never seen him so nervous about

a piece of luggage. Campbell also told Davis that

the man who left the package said the package con-

tained fabric. However, Campbell lifted the package

and thought that the package was too heavy for its

size to just contain fabric. Even though the X-ray

did not reveal any metallic bomb or explosive device,

it was possible that the package could have contained

an altimeter type bomb. Clearly, under these circum-

stances the officer was justified in opening the suitcase

to determine if, in fact, it did contain explosives. (See

People v. Hyde, 12 Cal.3d 158, 165-168.) The exigen-

cies of the situation obviated any necessity for obtaining

a search warrant. The plane the shipper had insisted

the package be shipped on was due to leave shortly

after Davis opened the package. Thus, if the package

had contained an explosive, it was logical to assume

that it was set to explode in a short while. In any

event, the package was an easily movable object and

to hold it while waiting for a warrant would also

constitute a seizure. (People v. Goodyear, 54 Cal.App.

3d 157, 162.) As noted in People v. Hyde, supra,

alii

at page 168, “Airport searches are singularly unsuited

to the warrant procedure.”

Accordingly, by reason of the foregoing, we conclude

that Officer Davis’ search of the package was reason-

able. There was substantial evidence to support the

trial court’s ruling that the contraband was not the

product of an unlawful search and seizure.

Defendant also contends that the search of his resi-

dence by the police and federal narcotics agents was

unlawful because (1) he did not voluntarily consent

to the search, (2) he withdrew his consent prior to

the completion of the search and (3) the scope of

the search was unreasonable.

“* T]he question whether a consent to a search

was in fact “voluntary” or was the product of

duress or coercion, express or implied, is a question

of fact to be determined from the totality of

all the circumstances.’ [Citations.] The trier of

fact’s resolution of this question will not be dis-

turbed on appeal if there is substantial evidence

to support it. [Citations.]” (People v. Ruster,

16 Cal.3d 690, 701.)

In the present case, after advising defendant of his

constitutional rights, Officer Stanley told defendant that

he wanted to search his house. He advised defendant

that he “could either apply for a search warrant... .

[o]r [he] could have his consent to search the house.”

Defendant agreed to a search of the closet. The officer

replied that that “wasn’t enough . . . that [he] would

have to have a consent to search the entire house,

and [he] would go down and apply for a search

warrant.” These statements, however, cannot be consid-

ered coercive since the officer was merely telling the

—1i—

defendant what he had a legal right to do. (People

v. Ward, 27 Cal.App.3d 218, 224-225; People v. Ru-

par, 244 Cal.App.2d 292, 298.) Moreover, there was

no evidence that defendant’s consent to search was

actually motivated by the officer’s statement regarding

the possibility of obtaining a warrant. In fact, defendant

stated at the trial that he did not give permission

to the officers to search his home and that the officers

proceeded to search without his consent.

Defendant further argues that his consent was not

voluntary because he was not advised of his right

to refuse consent. However, an advisement to defendant

of his right to refuse consent to a search is not a

prerequisite to establishing that defendant voluntarily

consented. (People v. Wheeler, 23 Cal.App.3d 290,

305; People v. Thomas, 12 Cal.App.3d 1102, 1108-

1111.) Moreover, the officer told defendant that he

could consent or a warrant would be sought. This

was tantamount to advising defendant that he had

a right to refuse consent.

Contrary to defendant’s arguments, there is nothing

in the record to indicate that the presence of “seven

to eight officers” contributed to defendant giving his

consent. The record shows that Officer Stanley was

the only officer who spoke to defendant about a search.

From the record, it cannot be said that defendant’s

consent to search of his residence was involuntary

as a matter of law.

Defendant also claims that his refusal to sign a

written consent and his declining to assist the officer

in opening the suitcase found in the closet amounted

to a withdrawal of his previously given consent. It

is true that a voluntary consent to search may be

—)]2—

withdrawn at any time before the search is completed.

(People v. Martinez, 259 Cal.App.2d Supp. 943, 945.)

Actions inconsistent with consent may act as a with-

drawal if those actions are positive in nature. (People

v. Botos, 27 Cal.App.3d 774, 779.)

Here, defendant did nothing to indicate that he was

withdrawing his consent. He merely refused to sign

a written consent. He did not state he was withdrawing

his oral consent. In addition, the record shows that

defendant did not refuse to help the officer open the

suitcase. Defendant only told the officer that the suitcase

was not his. He did not refuse to let the officer open

it up himself.

Citing Chimel v. California, 395 U.S. 752, defendant

contends that the search was unlawful because it ex-

ceeded the permissible scope of a search incident to

his arrest, i.e., the area immediately under his control

at the time of his arrest. However, the search of de-

fendant’s residence was not a search incident to his

arrest. Rather, it was made pursuant to his consent

(as discussed, supra). The search of his residence

was not unlawful.

- The motion to suppress under Penal Code section

1538.5 was properly denied, and the judgment (order

granting probation) is affirmed.

CERTIFIED FOR PUBLICATION

Hastings, J.

We concur:

Kaus, P. J.

Ashby, J.

— =

APPENDIX B.

Order of the Supreme Court of California.

Clerk’s Office, Supreme Court

4259 State Building

San Francisco, California 94102

August 25, 1977

I have this day filed Order HEARING DENIED.

In Re: 2 Crim. No. 28714

People v. Gurtenstein

Respectfully,

G. E. BISHEL

Clerk