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APPENDIX "A"

Opinion of the Supreme Court

of the State of California.

In the Supreme Court of the State of California,

in Bank.

The People, Plaintiff and Respondent, v. Kenneth

T. McGrew, Defendant and Respondent, Crim. 13413

Filed: December 17, 1969

The People appeal from an order of the San Diego

Superior Court dismissing felony charges against de-

fendant Kenneth T. McGrew.

McGrew was charged by indictment with trans-

porting marijuana (Health & Saf. Code, § 11531) and

with possession of marijuana for sale (Health & Saf.

Code, § 11530.5). After pleading not guilty to both

charges and waiving jury trial, McGrew moved the

trial court to suppress all evidence of the charged of-

fenses (under Pen. Code, § 1538.5) and to dismiss the

indictment (under Pen. Code, § 1385). Both motions

were granted. The People have appealed.

McGrew brought a new, securely locked foot-

locker to the United Airlines freight service at the San

Diego airport in the afternoon of June 25, 1967, to be

shipped to San Francisco. The freight agent, one

Dowling, observed that McGrew was wearing walking

shorts and a T-shirt and had "quite long" hair. Dowl-

ing's supervisor had told him "to be on the alert for

footlockers and suspicious people, and so on, that they

~A2-

had been shipping marijuana, ... to check out any

suspected contraband, to "See what is in there, and if

it is marijuana ... call the police. Dowling was sus-

picious, because of McGrew's "general appearance,"

and because the locker, which McGrew declared con-

tained books and clothes, had an "exceptional weight“

of 112 pounds, although Dowling admitted that the

weight was consistent with a shipment of two-thirds

clothes and one-third books.

After McGrew paid for the shipment and left,

Dowling called his supervisor, who told him to open up

the footlocker to see what it contained. Using a nail

and hammer to knock out the hinge pins, Dowling

opened up the locker "a couple of inches, just "enough

to see what was in there. He observed several bricks

or small packages, wrapped in brown paper or news-

paper. He could not see the contents of the packages

and he did not open any of them. He closed the lid of

the footlocker and after calling his supervisor again,

called the police.

San Diego Police Officer Burgess came, and

Dowling “told him what had happened, and he said he

would like to see [the locker]." Dowling "took him

back and opened it up and showed him" the footlocker.

The officer removed and inspected one of the packages.

A federal narcotics agent then arrived, removed and

examined the packages, and decided that the packages

contained marijuana. 1/ The officers inquired about

1 The federal narcotics agent testified, Burgess

did not. Dowling's testimony concerning the actions of

Burgess is not challenged.

-A3-

fill, to weigh down the emptied footlocker, and Dowling

furnished ballast. Using the ballast and one brick of

marijuana, the officers repacked the locker for ship-

ment to San Francisco.

Dowling notified other airlines about McGrew

and the shipment. About eight p.m. McGrew brought

a blue footlocker, which he said contained books and

dishes, to the Western Airlines freight service, where

it was received by the freight clerk, one Case, who

wrote up the airbill, and accepted the footlocker from

McGrew. A fellow employee named Sweeney called

United Airlines to tell them about the footlocker. The

federal narcotics officer involved in the United Airlines

transaction and two other officers went to the Western

Airlines freight office. The footlocker was closed and

locked. The federal narcotics agent "detected an odor

of marijuana" by compressing the top of the footlocker

and asked Sweeney and Case to open it, although they

were under no obligation to do so." Sweeney and Case

opened the footlocker, on the suggestion of one of the

officers, by knocking "the hinge pins out of the rear,"

using a hammer and nail. Sweeney opened up the lid,

and the federal agent removed and opened the packages,

which were wrapped in brown paper. The footlocker was

then repacked in the same manner as the one checked

with United Airlines.

About 11 p.m., McGrew returned to the Western

Airlines counter, purchased a ticket for San Francisco,

and checked a suitcase. Case notified officers and

told them that he had last seen McGrew walking through

the terminal in the direction of the restaurant. The

officers, Case and Dowling, went to the restaurant and

found McGrew sitting at the end of the counter. Both

Case and Dowling identified him, and the officers placed

~A4-

him under arrest. An officer found a Western Airlines

baggage claim ticket in searching the person of McGrew.

The officer returned to the Western Airlines luggage

counter with the baggage claim ticket and secured the

suitcase. He opened it and found marijuana.

The United Airlines employee, Dowling, testified

that at the airlines training school he had been instructed

that "we had the right to inspect shipments;" that an

agent could open "anything that arouses your suspicions;"

that the concern of the airlines was for “aircraft safety,

for improperly declared goods going at a cheaper rate,

and for overvalued goods, such as a TV set claimed to

be good but in fact with "the picture tube. kicked

in." He could not recall being instructed to check to

see whether contraband was being shipped.

He testified in connection with the McGrew search

that he was not concerned about aircraft safety or rate

structures; that when he opened up the locker he was

looking for one thing, to determine whether marijuana

was contained in the locker. He did not, however,

smell marijuana before opening the locker.

He further testified that in searching the foot-

locker he was following his orders to assist the police;

that he suggested and furnished ballast to the police

in response to their inquiry about fill, to weigh down

the emptied footlocker and that in so doing he was

following his orders to assist the police; that before

the McGrew incident, he had opened two other foot-

lockers, in the presence of the police, having obtained

the combination to the locks from the police; that he

found contraband in the two lockers, and that he knew

of two other footlockers having been opened by fellow

employees, in which contraband was not found.

-A5-

The People stipulated that the officers did not

have a search warrant for either search.

The trial court found that the United Airlines

employee, in opening the footlocker, acted solely for

police purposes and in response to police suggestion,

and in reopening the footlocker in the presence of the

suppressed.

We find it unnecessary to determine whether

Dowling, the United Airlines employee, must be con-

sidered an agent of the police in opening the footlockers

because, even assuming that he was not, the subsequent

searches by law enforcement officers or at their ex-

press and specific direction (cf. Stapleton v. Superior

Court, 70 A. C. 101, 104), were unlawful and the evi-

dence must be suppressed.

People v. Marshall, 69 Cal. 2d 51, 57, 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

-A6-

for a search incident to an arrest. (e.g., People v.

Harris, 62 Cal. 2d 681, 682-683.)

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.)

Our decision in Marshall is not limited to dwelling

houses. The Fourth Amendment protection of "effects"

includes securely closed footlockers shipped through

common carriers. Neither the language of the Fourth

Amendment, nor of any of the cases interpreting the

protection of that amendment, suggest that warrants

apply to houses“ but not to effects. The exceptions

to the requirement of a warrant are bases on circum-

stances and not on categories of items. The require-

ment of a warrant, unless otherwise excused, applies

to whatever is protected by the Fourth Amendment.

(See 2 v. United States (1967) 389 U.S. 347, 356-

367.

2, People v. Teal, 70 A. C. 532, is not to the con-

trary. Teal merely authorizes the search of an“ auto-

mobile or other object, without a warrant, based on

reasonable belief that such object is itself evidence,

but only when the seizure preceding the search is inci-

dent to a lawful arrest. (70A.C. atp. 546; italics

omitted. )

-AT7-

None of the exceptions apply to the United or

Western Airlines searches of the footlockers. When

the footlocker checked with United Airlines was

searched by the police, McGrew "was neither present

nor arrested until several hours after the search.

(People v. Marshall, Supra, 69 Cal. 2d 51, 61.) His

whereabouts were similarly unknown when the footlocker

checked with Western Airlines was searched. Nor was

there any likelihood that the lockers would be removed

or the contraband destroyed; both footlockers were

safely in the custody of the airlines. Both footlockers

had been shipped on a “space available" basis, so that

the airlines were not even under a contractual obligation

to ship the footlockers before a warrant could be ob-

tained. .

The evidence was not in plain sight, since both

lockers were closed when the police arrived, and the

marijuana was wrapped in packages. It is inherently

impossible for the contents of a Closed opaque container

to be in plain view regardless of the size of the con-

tainer of the material it is made of. A search of the

container is necessary to disclose its contents. A

search demands a search warrant. "' (People v. Marshall,

Supra, 69 Cal. 2d at p. 59; see also People v. Hawkins,

273 A. C. A. 565, 569-570.) The People's reliance on

People v. Roberts, 47 Cal. 2d 374, People v. Ouellette,

271 A. C. A. 55, and People v. Anderson, 266 Cal. App.

2d 125, is misplaced. In those cases, the object was

in plain sight; in Roberts a radio believed stolen, in

Quellette a corncob pipe and dark debris which was in a

waxed paper bag, and in Anderson part of a marijuana

cigarette.

The People contend that by shipping the footlocker

with a common carrier under a contract, " the receipt

-A8-

for the goods shipped which refers to but does not con-

tain an inspection clause, 3/ McGrew waived any Fourth

Amendment protection that would otherwise attach to a

closed and secure footlocker, and impliedly consented

to the search by the airlines employee and by the police.

The People argue in effect that any waiver of

Fourth Amendment protection, for whatever limited

purposes, results in a waiver for all purposes. This

contention was rejected in Corngold v. United States,

Supra, 367 F. 2d 1, 7, also involving a search of baggage

shipped through an airlines freight service.

Corngold relied on Stoner v. California (1964)

376 U.S. 483, 489, which rejected the contention that

implied consent of access for any purpose results in

consent for all purposes: "It is true... that when a

person engages a hotel room he undoubtedly gives

‘implied or express permission’ to 'such persons as

maids, janitors or repairmen' to enter his room ‘in

performance of their duties. [Citation.] But the

3/ The inspection clause on which the People rely is

contained in C.A.B. regulations and states only:

"INSPECTION OF SHIPMENTS All shipments are

subject to inspection by the carrier, but the carrier

shall not be obligated to perform such inspection.

(Rules and Regulations, Issued November 8, 1967,

C. A. B. No. 96, rule No. 24.) The basis for imputing

knowledge of this rule is the rapid airbill (a receipt)

which states in part on the back (in gray type): "2. It

is mutually agreed that the shipment described herein

is accepted... subject to governing classifications

and tariffs ...."

-A9-

conduct of the night clerk and the police in the present

case was of an entirely different order."

In Corngold v. United States, Supra, 367 F. 2d 1,

the court ruled that "Appellant did not abandon his

package; and mere surrender of custody to a carrier

did not forfeit appellant's right to privacy. (Citations. }

„ Appellant's package, securely wrapped and tied,

was delivered to the airline solely for transportation

from Los Angeles to New York, and the inspection

clause in TWA's tariff authorized examination only by

the carrier itself." (367 F.2d at pp. 7-8.)

Stoner and Corngold recognize that the scope of

consent to an invasion of privacy depends upon the cir-

cumstances. Other cases involving implied limited

consent to an invasion of privacy make clear the signifi-

cance of the circumstances. Thus, in United States v.

Blok (D. C. Cir. 1951) 188 F. 2d 1019, 1021, the police

searched the desk of an employee; the court, in holding

the search unlawful, stated: No doubt a search of

[the desk] without her consent would have been reason-

able if made by some people in some circumstances.

Her official superiors might reasonably have searched

the desk for official property needed for official use.

(See also, Cunningham v. Heinze (9th Cir. 1965) 352

F.2d1, 5, cert. denied, 383 U.S. 968, following

Stoner. Compare searches properly within the implied

consent to search in People v. Plane, 274 A.C. A. 1, 4

llandlord entered tenant's apartment to shut off lights

and oven]; In re Donaldson, 269 A.C. A. 593, 594,

[search of student's locker by school vice principal];

People v. Rightnour, 243 Cal. App. 2d 663, 666 [maid

entered guest's room to clean up]; People v. Gonzales,

182 Cal. App. 2d 276, 277-278 [search of knife-wounded

victim by hospital personnel to determine identity]. )

-Al0-

That privacy is not an absolute concept, but de-

pends upon the circumstances, was made clear by

People v. Edwards, 71 A.C. 1141, 1149, where contra-

band in a trash receptacle was held protected against

searches by the police, although, by placing the contra-

band in a trash receptacle, the defendants would have

waived any claim to privacy as to the trash collector.

The issue it was pointed out was the reasonable expect-

ancy that property will be preserved from the intrusive

scrutiny of others.

The same standard of reasonable expectancy used

to determine zones of privacy determines the extent of

implied consent to invade an individual's privacy. The

hotel guest may reasonably expect a maid to enter his

room to clean up, but absent unusual circumstances he

should not be held to expect that a hotel clerk will lead

the police in a search of his room. Similarly, in the

instant case, McGrew might have expected that an air-

lines employee would inspect baggage where a danger

or inconsistency was observed, but he could not reason-

ably be expected to anticipate police searches for con-

traband. He may not be held to have consented to

searches by police officers totally unrelated to the in-

terests of the airlines in the hope that contraband may

be discovered. (Cf. Parrish v. Civil Service Commis-

sion, 66 Cal. 2d 260, 274.)

It is also urged that the police search was none-

theless lawful, because the police reasonably and in good

faith believed that the airlines employee could authorize

a search of McGrew's luggage. The contention is with-

out merit.

The rule governing searches based on consent by

a third party was stated in People v. Hill, 69 Cal. 2d

-All-

550, 554, certiorari granted 90 S.Ct. 112: A] search

is not unreasonable if made with the consent of a third

party whom the police reasonably and in good faith be-

lieve has authority to consent to their search...."

The operative word in the rule is "reasonably; "thus,

there must be some objective evidence of joint control

or access to the places or items to be searched which

would indicate that the person authorizing the search

has the authority to do so. (E.g., People v. Hill, supra,

69 Cal. 2d 550, 554-555, and cases collected [visitor

consenting to search of apartment]; People v. Gorg,

45 Cal. 2d 776, 783 lowner; search of boarder 's room];

People v. Linke, 265 Cal. App. 2d 297, 315 [cotenant];

People v. Garner, 234 Cal. App. 2d 212, 230 (wife; hus-

band's property]. )

The good faith mistake rule does not, however,

apply where the third party makes clear that the prop-

erty beiongs to another. (E.g., People v. Cruz, supra,

61 Cal. 2d 861, 866 [guest in apartment could not con-

sent to search of boxes and luggage belonging to others];

People v. Egan, Supra, 250 Cal. App. 2d 433, 436

[parents could not consent to search of bag where made

clear that bag not parents']; Holzhey v. United States

(5th Cir. 1955) 223 F.2d 823, 824 [relatives could not

consent to search of locked cabinet]; compare, Sartain

v. United States (9th Cir. 1962) 303 F. 2d 859, 862-863,

cert. denied, 371 U.S. 894 [friend could consent to

search of suitcase where defendant left suitcase with

key attached]. )

Moreover, the good faith rule does not apply where

the relationship of the third party and the defendant

makes clear that the defendant has not authorized the

third party to act as his agent. Thus, in Stoner v. Cali-

fornia, Supra, 376 U.S. 483, 488, the Supreme Court,

-Al2-

in holding that a room clerk could not consent to the

search of a guest's room, and rejecting the "claim that

the search was reasonable because the police, relying

upon the night clerk's expressions of consent, had a

reasonable basis for the belief that the clerk had author-

ity to consent to the search," stated: ITlhere is

nothing in the record to indicate that the police had any

basis whatsoever to believ> that the night clerk had been

authorized by the petitioner to permit the police to

search the petitioner's room" (id., at p. 489).

The language and the rule of Stoner apply equally

to the instant case: The police knew that someone had

attempted to ship a footlocker which the airlines em-

ployee believed contained marijuana. They had no

reason to believe that the shipper had authorized the

employee to turn the trunk over to the police. Nor

could the police rely on the right of the airlines to in-

spect goods shipped. As pointed out above, the consent

to inspection by the airlines was limited to consent for

_ inspection for the airlines' own purposes.

We conclude that the trial court properly sup-

pressed the evidence obtained by the police searches of

the footlockers.

It is also urged that, apart from the evidence

furnished by the police searches, the officers had prob-

able cause to arrest McGrew when he was found in the

restaurant and that the search of his suitcase obtained

from a Western Airlines clerk was a valid search inci-

dent to that arrest. However, apart from the matters

learned from the police searches, the only information

the police had at the time of the arrest was that McGrew

had checked a footlocker at both United and Western

Airlines, that the one checked at United, when opened

-Al3-

by the airiine employee, was observed to contain sever-

al bricks or small packages wrapped in brown paper or

newspaper, and that McGrew had checked a suitcase

and purchased a ticket for San Francisco. The weight

of the footlocker left with United was consistent with a

shipment of two-thirds clothes and one-third books, the

items McGrew had declared to be in the footlocker, and

there is nothing to indicate that the package observed by

the United employee were not entirely consistent with

wrapped books. The fact that McGrew had checked

pieces of luggage at three different times with two air-

lines is not incriminating, and we are satisfied that the

information obtained by the officers apart from their

unlawful search did not furnish probable cause to arrest

McGrew for possession of marijuana and that arrest

was unlawful. The search of the suitcase may not be

sustained as incident to a valid arrest, and the evidence

secured by that search was properly suppressed. This

conclusion makes it unnecessary to consider whether

the search of the suitcase occurred at the place of the

arrest and vas contemporaneous therewith. (Cf. People

v. Cruz, supra, 61 Cal. 2d 861, 865.)

Since the evidence secured by the police searches

must be suppressed, there is not sufficient evidence to

hold defendant for trial.

The order appealed from is affirmed.

PETERS, J.

WE CONCUR:

TRAYNOR, C. J.

TOBRINER, J.

SULLIVAN, J.

-Al4-

DISSENTING OPINION BY MOSK, J.

I dissent.

Section 11531 of the Health and Safety Code makes

it a felony for any person to transport marijuana. The

section applies not only to one who arranges shipment,

as the defendant here, but it would also apply to any air-

line employee who knowingly transports marijuana.

Thus ifan airline employee reasonably believes a ship-

ment contains a substance the transportation of which is

illegal, he has the right and perhaps a duty to inspect

the package or container. The purpose of such inspec-

tion is not to act as an agent of the police, but to insu-

late himself from any criminal culpability.

When the defendant arranged for the shipment of

his footlocker he signed a "rapid airbill“ which stated

as one of the "conditions of contract" that it was accepted

subject to governing classifications in effect on that date

and filed in accordance with law. One of the Civil Aero-

nautics Board rules provides that The carrier has the

right, but not the obligation, to inspect shipments. nl/

1 Izmis is not demonstrably certain from the evidence

offered on this subject by the prosecuting attorney. A

copy of C.A.B. regulation No. 96 (Exh. 10) and a copy

of United Airlines Tariff rules (Exh. 11) were received

in evidence. The former became effective on August 1,

1967, and the latter on December 8, 1967. The offense

charged in this case took place prior to both dates:

June 25, 1967. However, Dowling testified Exhibit 19

was similar to pages used by him in his daily work, and

(Continued on following page)

~Al5-

In People v. Edwards (1969) 71 A.C. 1141, this

court indicated that in determining admissibility of evi-

dence the significant criterion is the defendant's

"reasonable expectation of privacy" in maintaining ac-

tual or constructive Possession of the objects at issue.

While undoubtedly this defendant hoped to avoid detec-

tion in shipping contraband, I find it difficult to conclude

that he had a reasonable expectation of privacy when he

shipped a footlocker by an interstate carrier which had

a right of inspection given to it by the administrative

agency regulating the airline and its operations. This

detendant declared to one carrier he was shipping

"clothing and books" and to the other he represented he

was shipping books and dishes. The rates charged

for shipment were based on those representations,

which were knowingly false. If, for any reason, an air-

line employee doubted the shipments contained the ob-

jects ‘indicated, he had an unquestioned right to open the

containers for inspection. This right of the airline is

not diluted by the fact that contraband was discovered--

which could not be shipped at any rate--rather than some

legal perishable commodity, which could be shipped at

a rate different from that prescribed for clothing, books

(Continued from preceding page)

the prosecutor represented to the court "that is the

actual regulation that was in effect at the time we are

interested in. Defense counsel objected on numerous

grounds to the admission of Exhibit 10, but he did not

challenge the prosecutor's representation. The court

must have accepted the prosecutor's statement as

being factual for the exhibit was received in evidence;

had it related only to dates subsequent to June 25, 1967,

it would have been irrelevant.

and dishes.

To deny the airline through its employees a right

of inspection when they doubt, for any reason, that a

package contains the objects represented by the shipper

to be therein, results in compelling the airline, an

innocent third party, to blind itself to reality and thus

to assist the defendant in his illicit commercial enter-

prise of transporting marijuana. This is the unfortu-

nate result of the majority opinion.

The majority lean heavily on Corngold v. United

States (9th Cir. 1966) 367 F. 2d 1. In Corngold the

transportation agent was initially contacted by govern-

ment agents who directed him to a specific package and

asked him to open it. Our case is factually closer akin

to a more recent Ninth Circuit decision which carefully

circumscribed the Corngold rule: Gold v. United States

(1967) 378 F. 2d 588, in which at pages 590-591, the |

court held Corngold inapplicable to a situation in which

_the transportation personnel, with "suspicions aroused

.. - had no way to determine whether the contents were

fit for carriage and properly classified except by open-

ing them. This the carrier had the right to do under its

tariffs. Indeed, the instant case is stronger than Gold,

for here there was no prior direct contact between law

enforcement officers and the airline employee. Dowling

opened the footlocker at the direction of his company

supervisor, not upon police suggestion.

It was not a law enforcement agency but Dowling

who notified other airlines about the defendant and his

shipment. Pursuant to that warning Western Airlines

employees Case and Sweeney observed the defendant's

footlocker and called United to report. Fortuitously

the police had then arrived at United and they proceeded

~Al17-

from there to the Western offices. They noted the foot-

locker pointed out to them by the Western employees

and could readily detect from it "an odor of marijuana."

This justified the subsequent search and seizure. (See

my dissent in People v. Marshall (1968) 69 Cal. 2d 51,

62. )

As this court recently held in People v. Superior

Court (1969) 70 A.C. 129, 135: "The conduct of a per-

son not acting under the authority of a state is not pro-

scribed by the Fourth or Fourteenth Amendments of the

federal Consitution. There are no state standards for

‘search and seizure' by a private citizen who is not

acting as an agent of the state or other governmental

unit. Therefore, acquisition of property by a private

citizen from another person cannot be deemed reason-

able or unreasonable (People v. Randazzo (1963) 220

Cal. App. 2d 768, 775-776 [citation] cert. den. 377 U. S.

1000 [citations], and a motion to suppress evidence so

obtained cannot be made on the gound that its acquisition

constitutes an unreasonable search and seizure under

section 1538.5."

Since the airline employees had a legal right to

inspect the footlockers, I can see no impediment to

their advising the police of the presence of contraband

and to the police taking possession of and making evi-

dentiary use of the contraband displayed to them. In-

deed, that was the precise situation in People v. Super-

ior Court (1969) supra, 70 A. C. 129, in which a private

detective gave a copy of a tape recording to law enforce-

ment officers. We properly declined to Suppress the

evidence prior to trial. To the same effect is Wolf Low

v. United States (9th Cir. 1968) 391 F. 2d 61, 63, in

which the court found proper the "conduct of the airline

in turning over to the Government the fruits of its

-Al8-

search of the defendant's suitcases, and the conduct of

the Government in making use of the information and

evidence obtained by the airline's search..."

As the majority concede, People v. Hill (1968)

69 Cal. 2d 550, 554, holds that a search is not un-

reasonable if made with the consent of a third party

whom the police reasonably and in good faith believe

has authority to consent to their search...." The

police belief was entirely reasonable and in good faith

here, since it was founded upon the right legally con-

ferred upon the airlines to inspect shipments in their

possession, the inspections actually made pursuant to

that right, the discovery of contraband legally ineligible

for shipment, the reporting of these events to the police

and the disclosure to the police of the actual contraband.

I would hold the searches were valid, the suppres-

sion of evidence erroneous, and the defendant should be

required to stand trial in order to ascertain his inno-

_cense or guilt.

MOSK, J.

WE CONCUR:

McCOMB, J.

BURKE, J.

-Bl-

APPENDIX B.

Opinion of the Court of Appeal

of the State of California

In the Court of Appeal of the State of California,

Fourth Appellate District, Division One.

The People, Plaintiff and Appellant, vs. Kenneth

T. McGrew, Defendant and Respondent, 4 Crim. No.

3278.

Filed February 17, 1969

APPEAL from an order of the Superior Court of

San Diego County. Byron F. Lindsley, Judge. Re-

versed.

For Appellant: James Don Keller, District

Attorney; Richard Bein, Deputy District Attorney.

For Respondent: George H. Chula.

The People appeal from a Penal Code, section

1385 order dismissing their action against Kenneth T.

McGrew based upon the granting of McGrew's motion

to suppress evidence (Pen. Code, §1238(7)).

McGrew was indicted for one count of transport-

ing marijuana (Health & Saf. Code, §11531) and one

count of possessing marijuana for sale (Health & Saf.

Code, §11530. 5). McGrew moved under Penal Code,

Section 1538.5 to Suppress certain evidence which the

People concede was indispensible to a conviction. The

trial court granted McGrew's motion on the ground the

-B2-

evidence was the product of illegal searches and sei-

zures. The dismissal followed because the People con-

ceded they had no case without the suppressed evidence.

Neither party gives this court any assistance with

a narrative summary of the facts. The district attor-

ney devotes over 20 pages of his brief paraphrasing the

testimony of each witness in the order the testimony

was produced at trial. This results in a disjointed,

redundant, non-chronological, overextended and unsat-

isfactory presentation of the facts. McGrew adopts the

People's presentation, stating it is adequate and he

does not want to burden this court with a lengthy factual

repetition.

About 4:00 p.m. Sunday, June 25, 1967, McGrew

took a loaded 112 pound new black footlocker to the

United Air Lines freight office at San Diego's Lindbergh

Field for shipment to San Francisco. McGrew signed

an airway bill as Kent McGraw", stating the footlocker

contained books and clothes. He consigned it to himself

in San Francisco where he said he was destined on a

midnight flight. McGrew said he would be back; he had

more to ship which he could not put in his car at the

same time as the black footlocker.

Charles J. Dowling, Jr., the United freight agent

who waited on McGrew, suspected the footlocker con-

tained marijuana. United Air Lines had had earlier

experience with people shipping contraband. The air-

lines investigative unit had passed the word for freight

handlers to be on the alert for new footlockers weighing

80 to 120 pounds, as marijuana had been shipped in such

containers. In addition McGrew had appeared nervous,

had long hair and looked like a hippie.

-B3-

Dowling did not know the origin of the warning to

be alert for heavy new footlockers. He had heard

"“scuttlebutt" it may have come from Honolulu Police

who had traced marijuana to a new footlocker air-

shipped through United.

Dowling called his supervisor, told him his sus-

picions. The supervisor gave him permission to open

the footlocker. Dowling knocked the pins out of the

hinges on the locked footlocker, opened the top and saw

several bricks (packages wrapped in brown paper) of

what he thought was marijuana. A month earlier Dowl-

ing had been present when a similar footlocker was

opened. He saw inside marijuana bricks wrapped in

plastic. The brown paper wrapped packages appeared

to contain the same substance as the marijuana he had

seen earlier.

Dowling again called his supervisor and told him

what he had found. The supervisor instructed him to

call the police. About 5:00 p. m. a Mr. Burgess from

the San Diego Police Department responded to Dowling's

call. Dowling took him to the footlocker and showed

him the contents. Other officers arrived, including

State Narcotics Agent McLaughlin. The officers re-

moved all but one marijuana brick and replaced them

with ballast bags.

Dowling alerted the Western Airlines freight

office and passenger ticket personnel to watch for

McGrew and to call United if he were seen. Agent

McLaughlin also contacted several airlines, furnishing

McGrew's description.

About 8:00 p.m. McGrew took a different footlock-

er to the Western Airlines freight office for shipment to

-B4-

San Francisco. McGrew again identified himself as

"Kent McGrew", consigned the footlocker to himself in

San Francisco, said the locker contained books and

dishes and said he would be taking a midnight flight to

San Francisco.

Richard Sweeney, a Western Airlines freight

agent, called United Air Lines because of Dowling's

warning. Within minutes narcotics agents including

Agent McLaughlin arrived at Western. McLaughlin

compressed the top of the footlocker and detected an

odor of marijuana coming from it. He asked Sweeney

and Joseph Case, the airfreight agent who had waited

on McGrew, to open the footlocker. Sweeney removed

the hinge pins, opened the footlocker, revealing brown

paper wrapped Kilo marijuana bricks inside. All but

one brick were removed and eplaced with a sandbag

and newspapers.

About 11:00 p.m. Case toi Agent McLaughlin

McGrew had just checked a blue suitcase at the Western

Airlines ticket counter and purchased a ticket for San

Francisco. Both Case and Dowling pointed McGrew out

to Mc Laughlin in the airline terminal restaurant.

McLaughiin sat next to McGrew, showed his

identification, said he was a State Narcotics Bureau

agent, and asked McGrew's name. McGrew replied,

"Kenneth McGrew." The agent gave McGrew a Miranda

warning; McGrew said he understood it; McGrew ad-

mitted he had shipped a trunk that afternoon from the

United Air Lines freight terminal. McLaughlin arrested

him.

McLaughlin impounded McGrew's suitcase,

searched it and found 18 more Kilo marijuana bricks.

-B5-

At no time did the government agents act under author-

ity of a search or arrest warrant.

The trial court suppressed: evidence of the two

marijuana ladened footlockers and the marijuana filled

blue suitcase; United and Western airway bills and a

baggage claim check for the blue suitcase all of which

McLaughlin found on McGrew's person; and McGrew's

statements.

The trial court found Dowling acted as a police

agent in opening the black footlocker at United Air

Lines. The court reasoned agency resulted because

the police had asked the airlines to assist in tocating

marijuana air shipments, and the footlocker opening

was the direct and indirect result of police suggestion

and instigation.

There was no evidence the police requested or

ordered Dowling to open the footlocker. Dowling stated:

"I opened it up on my own with no instructions from

anyone except the permission of the Supervisor to do it.

Whether the suggestion airlines be on the alert for such

footlockers originated from the police is immaterial.

(The court's finding it did apparently rests on Dowling's

testimony of "scuttlebutt"’. ) The police do not neces-

sarily make agents of citizens they warn concerning

crimes. One who sees a wanted poster in a post office

does not become an FBI agent should he later recognize

the wanted suspect, interrogate him and hear incrimi-

nating admissions. A parent who heeds a police warn-

ing to be on the lookout for marijuana and dangerous

drugs with children does not become a police agent

when alertly emptying a teenage son's pockets to ready

his clothing for the laundry.

While the Fourth Amendment's prohibition against

unreasonable searches and seizures applies to the states

and renders inadmissible in state courts evidence ob-

tained in violation of that amendment, it does not apply

to non-governmental searches by private individuals

(People v. Superior Court, 70 A.C. 129, 135). More-

over, a motion to suppress evidence under Penal Code,

section 1538.5 is directed solely to searches and sei-

zures conducted by government agents (People v. Super-

ior Court, supra, 70 A.C. 129, 134). Here Dowling did

not act in a joint enterprise with, or as an agent of a

governmental law enforcement agency. The govern-

ment's participation, if any, fell short of coloring Dowl-

ing's conduct with the taint of governmental authority.

(See Stepleton v. Superior Court, 70 A.C. 101, 103-106.)

The trial court's finding Dowling acted as a police agent

when he first opened the black footlocker is not sup-

ported by substantial evidence. We need not dictate

whether Dowling had probable cause to search or wheth-

er the airline's tariff, which allows inspection of ship-

ments, justified the search, because the Fourt Amend-

ment does not make Dowling's discovered evidence

inadmissible.

When Dowling, based upon his previous experience,

recognized marijuana in the footlocker, his report to the

police gave them probable cause to believe the footlocker

contained contraband. Where the police have probable

cause to believe an automobile contains marijuana they

may make a warrantless search of it not incident to

arrest. (Dyke v. Taylor Implement Mfg. Co., 391

U.S. 216 [88 8. Ct. 1472]; Carroll v. United States,

267 U.S. 132, 149 [458. Ct. 280, 283-284];

People v. Madero, 264A.C.A. 126, 129.) The

rule has its basis in the mobility of motor vehicles. In

Carrol v. United States, supra, the rule was formu-

lated, in part, upon an analogy to goods in the course of

transportation, which Congress has historically treated

-B7-

differently with regard to search authorization than it

has goods in a fixed dwelling or other building. (Carroll

v. United States, supra, 267 U.S. 132 at pp. 150-153

[45 8. Ct. at pp. 284-285]. )

Here McGrew had placed the two footlockers and

the suitcase in the course of transportation. One of two

things was bound to happen unless the police seized

them. Either they would be shipped out of the jurisdic-

tion to San Francisco or the owner might return and re-

move the shipments from transit.

It is our opinion the rule allowing a warrantless

search of motor vehicles, not incident to an arrest,

where the police have probable cause to believe contra-

baud is present, applies with equal reason to goods in

the course of transportation. Support for this view is

found in Hernandez v. United States, 353 F. 2d 624.

Having probable cause to search the footlocker at

United Air Lines the police had equal cause to search

the footlocker at Western Airlines. It was shipped by

& person matching the description of the United shipper,

who gave the same name and told the same travel plans.

When Dowling and Case identified McGrew in the

restaurant as the shipper, the police had probable cause

to arrest and search him. The search of the blue suit-

case was justified both as incident to McGrew's lawful

arrest and because the police had reason to believe it

contained marijuana.

The trial court found there was sufficient time

for the police to have secured search warrants for both

the footlocker at United Air Lines and the footlocker at

Western Airlines. We need not determine whether the

finding is supported where the shipments were made on

a Sunday evening, each would have been shipped within

three hours and McGrew could have withdrawn the ship-

ments from the course of transportation. The finding

is irrelevant. In Cooper v. State of California, 386

U.S. 58, 62 87 S.Ct. 788, 791], the correct rule is

stated: |

"It is no answer to say that the police

could have obtained a search warrant,

for [t]he relevant test is not whether

it is reasonable to procure a search

warrant, but whether the search was

reasonable.

The order of dismissal is reversed and the order

suppressing evidence vacated.

GERALD BROWN, P. J.

WE CONCUR:

COUGHLIN, J.

WHELAN, J.

-Cl- and -D1-

APPENDIX "Cc"

FOURTH AMENDMENT

Seizures, Searches and Warrants

[SECTION 1.] The right of the people to be se-

cure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not

be violated, and no warrants shall issue, but upon

probable cause, supported by oath or affirmation, and

particularly describing the place to be searched, and

the persons or things to be seized.

APPENDIX p

Civil Aeronautics Board of Regulation No. 96,

Rule No. 24: "INSPECTION OF SHIPMENTS All ship-

SEMA SHIPMENTS

ments are subject to inspection by the carrier, but the

carrier shall not be obligated to perform such inspec-

tion.