Petition for a Writ of Certiorari — McKinnon v. California

SUBJECT INDEX

Page

CITATIONS TO OPINIONS BELOW ........ 2

EE os 5S ava s oe be 2

QUESTION PRESENTED............... 2

CONSTITUTIONAL PROVISIONS INVOLVED . 2

STATEMENT OF THECASE............ 3

REASONS FOR GRANTING THE WRIT ..... 4

EG ih bs be iS Sig b ve ccc. 9

en hr 10

APPENDIX A - Opinion of the Court of

Appeal

APPENDIX B - Opinion of the Supreme

Court of California

APPENDIX C - Dissenting Opinion by

Peters, J.

APPENDIX D - Dissenting Opinion by

Sullivan, J.

TABLE OF AUTHORITIES CITED

Abt v. Superior Court,

ee ee Me: oe eee ee wicds

Carroll v. U.S.,

ge eS era

Chambers v. Maroney,

ere

Coolidge v. New Hampshire,

oe aes PUTED 5 ts eee ees os

Corngold v. U.S.,

oer fia) Clik... TOBE) 6 cc ccs

People v. McGrew,

2 ee. ee Oe CRED) 6k cee tee

People v. McKinnon,

13 Cal. App. 3d 555, 91 CR 696 (1971);

7 Cal. 3d 899, See ee

People v. Temple,

276 Cal. App. 2d 402 (1969

U.S. v. Colbert,

454 F.2d 801 (5 Cir., 1972)

Page

2, 6, 8

=

TABLE OF AUTHORITIES CITED (Continued)

Page

STATUTES

Health & Safety Code,

scaiettoniste len erry CRUE TT CCCTe 3

sects cpg: buna, is Eee err ape 3

Penal Code,

NI Si aihig Wr eae 8

United States Code, Title 28,

Section 1257(3) ......... themes 2

CONSTITUTION

United States Constitution,

Fourteenth Amendment........ ve» es e

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

LLOYD GEORGE McKINNON,

Petitioner,

Vs.

THE PEOPLE OF THE STATE OF

CALIFORNIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF CALIFORNIA

Petitioner, LLOYD GEORGE McKINNON, respect-

fully prays that a writ of certiorari issue to review the

final order of the Supreme Court of the State of California

entered herein on September 13, 1972 reversing the

opinion of the Court of Appeals affirming the order of the

Superior Court of San Diego County, State of California,

dismissing the charges against Petitioner and suppress-

ing the evidence.

~—

~ 2-

CITATIONS TO OPINIONS BELOW

The opinion of the Court of Appeal, Fourth Appel-

late District, Division One, State of California, is

reported at 13 Cal. App. 3d 555, 91 CR 696 (1971). The

opinion of the Supreme Court of the State of California

is reported at 7 Cal.3d 899, ag P. 2d

(1972).

JURISDIC TION

The final order of the California Supreme Court

was made on September 13, 1972, and is appended here-

to infra at page Bl. The jurisdiction of this Court is

involved under 28 U.S.C., Section 1257(3).

QUESTION PRESENTED

Is it necessary to obtain a search warrant, absent

exigent circumstances, before lawfully searching a

chattel consigned to a common carrier for shipment, or

can a lawful search be made without a warrant based

merely upon probable cause?

CONSTITUTIONAL PROVISIONS INVOLVED

The constitutional provisions involved are the

following portion of the Fourth Amendment to the Con-

stitution of the United States: ‘No warrant shall issue

but upon probable cause supported by oath or affirma-

tion, '' and that portion of the Fourteenth Amendment to

the Constitution of the United States which states: ''No

state shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

a2

States... nor to deny to any person within its juris-

diction the equal protection of the laws. "

-3-

STATEMENT OF THE CASE

Charges against Petitioner, LLOYD GEORGE

McKINNON, in the Superior Court of San Diego County

for possession of marijuana for sale, Health & Safety

Code, Section 11530. 5, and transportation of marijuana,

Health & Safety Code, Section 11531, were dismissed

and the marijuana was Suppressed. These orders were

affirmed by the Court of Appeals, Fourth Appellate Dis-

trict, Division One, State of California, on the grounds

that the search and seizure of the boxes absent a valid

search warrant was unreasonable and violative of the

Fourth Amendment to the Constitution of the United

States,

About 7:30 a.m. of March 10, 1969, Petitioner

and a co-defendant took five boxes to the United Airlines

freight office at San Diego's Lindbergh Field for ship-

ment to Seattle, Washington. Petitioner told the air

freight agent, Mitchell Gos, to ship them to L. McKinnon

and that the shipper was "L. McKinnon" of the "Balboa

Supply Company",

Suspecting the boxes contained contraband, Gos

made out the air freight bill and told another employer

to co serve both suspects and to acquire the license

humver and description of their car. Gos' supervisor

gave him permission to open the boxes, and he did so in

the presence of his Supervisor and other employees. He

found wrapped bricks inside the box. When Gos pinched

one open he found what appeared to him to be marijuana.

Gos then called State Narcotics Agent, Charles

McLaughlin. In response, McLaughlin asked for, and

-4..

was shown, the air freight bill. Gos then showed him

the open box. McLaughlin saw the wrapped bricks but

could not see inside them: he did not see the brick Gos

had pinched open. He said he might have opened another

one, and further relied on the size and shape of the

packages as well as the odor in making the determination

that they contained marijuana.

After finding the marijuana, McLaughlin looked at

the air freight bill again and asked Gos to find out

whether a passenger named '""L. McKinnon" had reserva-

tions on a 9:00 a.m. flight to Seattle. It was subse-

quently discovered that such a reservation had been

made.

Based on Gos' description of the two shippers,

their car, and the flight reservations, McLaughlin

arrested the co-defendant in the airport parking lot, as

he was about to enter his car, and then arrested the

Petitioner aboard the airplane.

The Superior Court dismissed the charges as to

Petitioner and co-defendant and sustained the motion to

suppress the evidence on the grounds that McLaughlin

could not lawfully search the boxes without first obtain-

ing a valid search warrant.

REASONS FOR GRANTING THE WRIT

The Fourth Amendment to the United States Cv_-

stitution states that persons shall be free from unreason-

able searches and seizures. The requirement of a

search warrant has been jealously guarded and waived

only by very narrow exceptions.

a

-5-

One of the requirements as expressed in the car-

search cases has been "exigent circumstances". It is

upon this basis and a novel interpretation of Chambers

v. Maroney, 399 U.S. 42 (1970), that the California

Supreme Court, by a narrow majority (4-3), overruled

two cases substantially similar to the case at bar:

People y. McGrew, 1 Cal. 3d 404 (1969) and Abt v. Su-

perior Court, 1 Cal. 3d 418 (1969).

incident to a lawful arrest. The exception to this general

rule is, of course, in an emergency situation (1 Cal. 3d,

p. 409).

The Court in Abt, supra, at Pp. 421, discussed the

requirements for a search warrant and the application of

Plain view to the circumstances of trunks consigned for

shipment:

"Finally the evidence was not in plain view.

Although the outer wrappings of the pack-

age were cut open before the officer

arrived, all that appeared in plain sight

were tinfoil- wrapped packages. 'It is in-

herently impossible for the contents of a

closed opaque container to be in plain

view regardless of the size of the container

or 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; People v. Hawkins, 273

Cal. App. 2d 529, 533." (Emphasis added. )

eae OMT nN ay et RR enn nia Val tn

-6-

This was the law in California until the decision

was rendered in the instant case deciding that personal

effects are classified in the same manner as automo-

biles and other conveyances, more by their very nature

as "movables", than the exigency of surrounding circum-

stances.

It is for this reason we urge the Court to grant

certiorari and reverse the California Supreme Court

decision as an extension of car searches that was never

intended by this Court's decision in Chambers.

Justice Peters, in the dissenting opinion of

McKinnon, supra, at p. 920, summarizes his under-

standing of Chambers’ significance:

"Chambers, however, does not purport to

apply to everything that is not nailed

down or affixed to realty. The Supreme

Court's opinion is closely tied to a long

series of cases involving one and only

one form of movable object... that

which is used as a vehicle to transport

oods from one place to another. "'

(Emphasis added. )

The Fifth Circuit, applying the reasoning of

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

pressed shotguns found inside a defendant's car.

Defendants had been arrested for failure to possess

draft cards. The searches could not be justified as in-

cident to the arrest. No exigent circumstances were

demonstrated to show the officers could not detain the

brief cases while they obtained a warrant. The conclu-

sion of the court was that since the brief cases were in

effect "immobile" and beyond the reach of the defendants,

ees

they were beyond the "exigent circumstances" reasoning

of Chambers (U.S. v. Colbert, 454 F.2d 801 (5 Cir.,

1972).

ey

Justice Stewart commented on Chambers' effect

in Coolidge at p. 463: "Chambers, supra, is of no help

to the State since that case held only that where the

police may stop and search an automobile under Carroll.

267 U.S. 132 (1925), they may also seize it and search

it later at the station. "

The prerequisites for warrantless searches are

based on circumstances not classes of objects. Many

effects are "movable" insofar as they may be trans-

ported.

Indeed, by that description, the boxes in the in-

stant case were movables. Yet, who could move them

after their consignment to the airline for shipment other

than the airline itself?

The boxes were no longer under the consignor's

control nor anyone else other than the shipper. There

is no showing that the shippers were under an obligation

to immediately ship them. In fact, the California Su-

preme Court specifically provided for temporary deten-

tion of such consignments in People v. Temple, 276 Cal.

App. 2d 402, 409 (1969).

The consignor, McKinnon, was easily available to

the authorities at Lindbergh Field, San Diego, or would

have been at his destination when, as the consignee, he

would have picked up the boxes.

The authorities had the license number and descrip-

tion of the vehicle and a description of its driver. There

atts.

was no evidence of his immediate flight from the area.

Agent McLaughlin was forewarned in that Gos had

called him and given him all the pertinent information

to indicate the presence of contraband. There was suf-

ficient time in which to obtain a search warrant by any

of the agents after viewing the packages contained within

the box opened by Gos and left open until McLaughlin's

arrival. In any event, McLaughlin could have removed

McKinnon from the flight and held him for investigation

until the search warrant was obtained because such

detentions "deemed not arrests" are permitted by Cali-

fornia Penal Code Section 849.

That he did not do so was an obvious disregard for

Petitioner's Fourth Amendment rights. Coolidge v. New

Hampshire, supra, at p. 484, clearly upholds the princi-

ple "that the police must obtain a warrant when they

intend to seize an object outside the scope of a valid

search incident to an arrest... "

Justice Peters points out in his dissent at p. 921

in McKinnon that:

"In both cases [Coolidge and McKinnon]

the exigent circumstances that Carroll

and Chambers require are non-existent,

and five justices of the Supreme Court

held that in the absence of those circum-

stances the search of the car without a

warrant could not be upheld. "

We would offer Corngold v. U.S., 367 F. 2d 1 (9

Cir., 1966), for the proposition that: When the officers

have no warrant; no circumstances to justify a search

without one; no showing that the packages could be

-9-

removed before one was obtained, nor that the airline

was obligated to immediately ship: that the officers

could have obtained a warrant either at the place of

shipment or its destination: sucha warrantless inva-

Sion is an unreasonable and an unlawful search.

We share Justice Peters' concern about the con-

sequences the instant decision makes upon Fourth

Amendment rights; for then, under what circumstances

given probable cause, must a warrant be obtained? His

dissent at p. 924 aptly describes the challenge of this

case:

"Unless exceptions to the rule that a war-

rant be obtained prior to a search are

granted only when compelling necessity

requires immediate action, there is sub-

stantial danger that over time '[r]ights

declared in words might be lost in reality.’

Weems v. U.S., 217 U. S., 349, 373). "

CONC LUSION

It is respectfully submitted that the petition for a

writ of certiorari be granted.

Respectfully submitted,

MICHAEL §., HEGNER

Attorney for Petitioner

-Al-

APPENDIX "A"

IN THE COURT OF APPEAL,

FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE OF THE STATE )( 4 Crim.

OF CALIFORNIA, NT No. 4201

(

Plaintiff and Appellant, )( Court of Appeal-

ry Fourth Dist.

Vv. ( FILED

Ti DEC 16 1970

LLOYD GEORGE McKINNON, et al, )( JOHNR.

rT McDOWELL,

Defendants and Respondents. iT Clerk

Deputy Clerk

APPEAL from orders of the Superior Court of

San Diego County. Robert O. Staniforth, vudge.

Affirmed.

James Don Keller, District Attorney and Richard

H. Bein, Deputy District Attorney, for Plaintiff and

Appellant.

Hecsh, Hegner & Philbin and Michael S. Hegner,

for Defendant and Respondent McKinnon.

Woolley, Crake, Collins & Ward and William O.

Ward II, for Defendant and Respondent Turk.

-A2-

Lloyd George McKinnon and John Scott Turk were

charged with transporting marijuana (Health & Saf. Code

$11531) and possessing marijuana for sale (Health & Saf.

Code $11530.5). Both were bound over for trial on the

charges after a preliminary hearing. Each moved to

set aside the information under Penal Code section 995

and to suppress the marijuana evidence (Pen. Code

$1538.5). The court granted both motions to suppress,

dismissed the charges as to McKinnon under Penal Code

section 1385 and granted Turk's Penal Code section 995

motion to set aside the information. The People appeal.

About 7:30 a.m. of March 10, 1969, McKinnon

and Turk took five boxes to the United Airlines freight

office at San Diego's Lindbergh Field for shipment to

Seattle, Washington. McKinnon told Mitchell Gos, the

air freight agent, to ship them to "L. McKinnon" and he

said the shipper was "L. McKinnon" of the " Balboa

Supply Company."

Gos suspected the boxes contained contraband.

He made out an air bill and directed another employee

to watch McKinnon and Turk to ascertain the license

number and description of their car. Gos asked his

supervisor for permission to open the boxes. When the

permission was granted, he opened one of the boxes in

the presence of his supervisor and other airline employ-

ees. He found wrapped bricks inside the box. Gos

pinched open one of the wrapped bricks and found what

appeared to be marijuana.

Gos called the office of the State Narcotics Agent,

Charles McLaughlin. Responding to Gos' call,

McLaughlin asked for, and was shown, the air bill.

Gos then showed him the box he had opened. McLaughlin

saw the wrapped bricks but could not see the marijuana

-A3-

through the wrappings. He could, however, smell the

odor of marijuana. McLaughlin opened one of the mari-

juana bricks. McLaughlin did not see the marijuana

exposed by Gos' pinching one of the bricks; inthis con-

nection he said "There was possibly one already opened

but I believe I might have opened another one." He also

said he relied on his Sense of smell and his Sight, i.e.,

"The size and shape of the package inside the plastic

bag and the odor, "

We must construe the evidence most favorably to

the orders Suppressing the evidence. The evidence

Supports the implied finding the marijuana was not in

plain sight of McLaughlin. It ig obvious the wrapping

of the bricks was opaque as McLaughlin said he could

not see the marijuana through the wrap.

"It is inherently impossible for the

contents of a closed opaque con-

tainer to be in plain view regardless

of the size of the container or the

material it is made of. A Search of

the container is necessary to dis-

close its contents. A search demands

a search warrant. " (People v. Mar-

Shall, 69 Cal. 2d 51, 59; quoted in

People v. McGrew, 1 Cal. 3d 404,

410 and Abt v. Superior Court, 1 Cal.

3d 418, 421.)

McLaughlin did not have a search warrant. The

People bore the burden of establishing the legality of

his warrant-less search.

After finding the marijuana, McLaughlin again

looked at the air bill, then asked Gos to ascertain

-A4-

whether a passenger named '"'L. McKinnon" had reser-

vations on a 9:00 a.m. flight to Seattle. McKinnon was

on the passenger list.

Armed with Gos' description of the two shippers,

their car and McKinnon's flight plans, McLaughlin ar-

rested Turk in the airport parking lot as he entered the

car, and McKinnon aboard the airplane scheduled to

leave for Seattle at 9:00 a.m.

The boxes contained fifty kilos of marijuana. The

police found marijuana debris in the clothing of Turk

and McKinnon. ~

McLaughlin's search of defendants' shipment was

illegal under the standards set in People v. McGrew,

supra, 1 Cal. 3d 404 and Abt v. Superior Court, supra,

1 Cal. 3d 418. Both McGrew and, particularly, Abt

involved searches factually very similar to the search

here. McGrew says:

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

57, ... makes clear... with cer-

tain exceptions, probable cause to

believe ... ‘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 war-

rant would not be needed for a search

incident to an arrest. (Citation. )

"The exceptions to the requirement of

a search warrant, aside from searches

-~A5-

incident to an arrest, are where there

is a danger of ‘imminent destruction,

removal, or concealment of the prop-

erty intended to be seized' or where

the evidence is in plain sight, which

‘is, in fact, no search for evidence. '

(Citation. )

"Our decision in Marshall is not limited

to dwelling houses. The Fourth Amend-

ment protection of 'effects' includes se-

curely closed footlockers shipped

through common carriers. Neither the

language of the Fourth Amendment, nor

any of the cases interpreting the pro-

tection of that amendment, suggest that

warrants apply to 'houses' but not to

'effects.' The exceptions to the require-

ment of a warrant are based on circum-

stances and not on categories of items.

The requirement of a warrant, unless

otherwise excused, applies to whatever

is protected by the Fourth Amendment. "'

(People v. McGrew, 1 Cal. 3d 404, 409-

410.)

Here, as in McGrew and Abt, we do not determine

whether Gos acted as a police agent when he initially

opened one of the boxes, although the defendants pro-

0: ced some evidence raising inferences Gos may have

received directions from the police regarding the search

of suspicious packages.

The People contend on appeal McGrew and Abt are

distinguishable, because McLaughlin's search was justi -

fied as incident to the arrests of defendants. The People

-A6-

failed to raise this contention below. Rather than at-

tempting to distinguish McGrew at the hearing of de-

fendants' Penal Code 1538.5 and 995 motions the deputy

district attorney said:

"(T]his was a case being continued for

the McGrew matter to be brought down,

and the People have no additional points

and authorities in this matter. I have

read the transcript, that appears to be

quite similar to the McGrew facts, al-

though there are some differences. I

don't intend to distinguish them at this

time, and, therefore, I would just sub-

mit the case. "

Any factual determinations consistent with reason-

able inferences from the record relating to whether the

search was incident to defendants' arrests must be re-

solved against the People. Here, as in McGrew, Abt

and Marshall, the defendants were not present and the

police did not know where they were when the search

was made. The arrests were effected in other areas

of Lindbergh Field, apparently within an hour of the

search. Under these circumstances the court's implied

finding the search was not incident to the arrests is sup-

ported, if not compelled, by the record.

The People also contend McLaughlin had sufficient

probable cause to arrest defendants when he saw the

wrapped bricks in the open box and smelled marijuana.

It is thus argued this probable cause to arrest was un-

tainted by McLaughlin's act in later opening one of the

bricks and a search of the four remaining, unopened,

boxes could lawfully have been made as incident to de-

fendants' arrests based on untainted probable cause.

«AF

The People's argument assumes a search of the boxes

in the air freight office could have been incidental to

McKinnon's arrest aboard the plane or Turk's arrest

in his car in the parking lot. Moreover, the question

is not whether the police might have been able to con-

duct a reasonable search had they followed other pro-

cedures. The question is whether the search they

conducted was reasonable. We hold it was not, absent

a search warrant, a conclusion we are compelled to

adopt by McGrew, Abt and Marshall. The People failed

to show they had no time to secure a search warrant as

in People v. Gordon, 10 Cal. App. 3d 454, 461,

The continued vitality of McGrew and Abt is ques-

tioned in People v. Superior Court, 11 Cal. App. 3d

887, 893 because of the later United States Supreme

Court decision in Chambers y. Maroney, 90S. Ct. 1975

[399 U.S. 42], which distinguishes between Searches of

fixed premises and searches of movables. If Chambers

applies to the movables here (Chambers involved a car),

then McGrew and Abt adopt a higher standard of reason-

ableness than that adopted by the U.S. Supreme Court.

In that case the higher state standard controls (Cooper

v. California, 87S. Ct. 788, 791 [386 U.S. 58, 62].)

The orders dismissing the charges against Mc-

Kinnon and setting aside the information as to Turk are

each affirmed.

BROWN

WE CONCUR: P.J.

COUGHLIN

J.

WHELAN

J.

-Bl-

APPENDIX sad | i

FILED

SEP 13 1972

COPY oo Se, Cte

S. F. Deputy

IN THE SUPREME COURT OF THE

STATE OF CALIFORNIA

IN BANK

THE PEOPLE,

Crim. 15379

Plaintiff and Appellant,

v. (Super. Ct. No.

CR-16929)

LLOYD GEORGE McKINNON et al. ,

Defendants and Respondents.

ee ee ee ee we we wes we

In this typical air freight search case we are

called upon to reconsider People v. McGrew (1969) 1

Cal. 3d 404, and Abt v. Superior Court (1969) 1 Cal. 3d

418, in the light of Supervening developments in the law.

As will appear, we conclude that the rule of those de-

cisions is no longer to be followed, and that a chattel

consigned to a common carrier for shipment may law-

fully be searched upon probable cause to believe it con-

tains contraband.

SEE DISSENTING OPINIONS

-B2-

Defendants Lloyd George McKinnon and John Scott

Turk were charged with transporting marijuana (Health

& Saf. Code, § 11531) and possession of marijuana for

sale (Health & Saf. Code, § 11530.5). Both defendants

filed motions to suppress the evidence on the ground of

illegal search and seizure. (Pen. Code, § 1538.5.)

The court granted the motions, dismissed the charges

as to McKinnon (Pen. Code, § 1385), and set aside the

information as to Turk (Pen. Code, § 995). The People

appeal. (Pen. Code, § 1238, subds. (a)(1) and (a) (7).)

The matter was submitted on the transcript of the

preliminary examination. Mitchell Gos, an air freight

agent, testified that on March 10, 1969, McKinnon and

Turk brought five cardboard cartons to the United Air-

lines freight counter at the San Diego airport. McKinnon

stated he wished to ship the cartons to Seattle; he de-

scribed the contents as "personal effects, '' and gave the

name "L. McKinnon" of "Balboa Supply Company" as

the consignor and 'L. McKinnon" as the consignee.

Turk assisted in providing the information entered on

the air bill.

Gos had not seen either man before, but suspected

that the cartons contained contraband. After defendants

left, Gos asked a fellow employee to note the make and

license number of their car. He then obtained his super-

visor's permission to open one of the cartons for pur-

poses of inspection. In the presence of the supervisor

and other employees, Gos slit the tape on one of the

cartons and put his hand inside. Beneath some paper

he felt brick-shaped packages of what seemed to be soft

tobacco or grass. He then lifted the lid of the carton,

tock out one of the packages, and pinched it open. Upon

finding that it contained what he believed to be marijuana,

he telephoned the police.

-B3-

In response to the call, Officer McLaughlin of the

State Bureau of Narcotics Enforcement arrived at the

air freight counter 20 or 30 minutes later. He looked

at the air bill, then entered a back room where the car-

tons had been placed. The carton that Gos had inspected

Stood open on the floor; it contained a large brown plastic

bag, which was also open. As Officer McLaughlin ap-

proached the carton, he saw inside a number of brick-

shaped packages wrapped in red cellophane. Each was

10 to 12 inches long, about 6 inches wide, and 2 to 3

inches thick. Officer McLaughlin formed the opinion

that the substance in the packages was marijuana. He

proceeded to open one of the packages, and verified its

contents.

Officer McLaughlin next learned that a passenger

by the name of "L, McKinnon" had a reservation on a

flight due to leave for Seattle within the hour. He ob-

tained from Gos a description of the two men who had

presented the cartons for shipment, together with the

make and license number of their car. Shortly after-

ward Officer McLaughlin located the car in the parking

lot, and arrested Turk as he entered it. The officer

then returned to the departure area and arrested

McKinnon on board a United Airlines flight waiting to

take off for Seattle.

Promptly after making the arrests Officer Mc-

Laughlin opened the remaining four cartons. Each con-

tained, like the first, 10 identical "kilo" bricks of

marijuana, making a total of 50. The parties stipulated

at the hearing that this constituted a "commercial quan-

tity" of marijuana.

The defense was directed primarily to establishing

the proposition that Gos was acting as an agent of the

-RA-

police when he opened the first carton presented by de-

fendants. Gos testified that on four or five occasions

during the preceding three years he had opened packages

consigned for shipment as air freight and had found

marijuana, and in that connection had called Officer

McLaughlin or other law enforcement personnel. He

denied, however, that the police had instructed him to

open such packages. He explained that by virtue of a

regulation of the Civil Aeronautics Board he was en-

titled to open any shipment for purposes of inspection,

and that he does so, among other reasons, to forestall

fraudulent insurance claims.1/ His only instructions

were from his company, directing him to obtain his

supervisor's permission before opening a package; after

that, it was company policy to notify the police if any-

thing suspicious was found.

Gos further testified that it was his practice, if

he found contraband in a package, to leave the package

open so that when the police arrive "there is no cause

for illegal search or seizure.'' He again denied he had

been instructed to do so by the police. Instead, he ex-

plained that in a case three years earlier he had ob-

tained police assistance in opening for inspection a pair

of trunks secured by combination locks. Called to tes-

tify in that case, he learned that contraband found in the

trunks was inadmissible because of the police partici-

pation in opening them. He discussed this and similar

1/ Thus Gos testified, "I get all kinds of people

coming over that counter and I am kept busy and people

tell me they are sending electronic equipment and claim

big insurance... and it is all personal effects just to

get insurance. This happens all the time, ... "

-B5-

rulings with his fellow employees, and thereafter made

it his practice simply to leave open any package that he

found upon inspection to contain contraband.

Officer McLaughlin took the Stand and acknowl-

edged he had talked on various occasions with Gos and

other airline employees, but denied ever having instruc-

ted them to open any packages or to leave them open for

police examination. He testified his sole request to such

employees was that they promptly contact him or some

other law enforcement agency if they became suspicious

of any person shipping goods or of the goods themselves.

The sole defense witness was Etta Durden, a

legal secretary. At defense counsel's instigation Miss

Durden had interviewed Gos a few days before the hear-

ing, posing as a student doing research for a paper al-

legedly on the subject of preventing the transportation

of marijuana. She testified that Gos told her the police

had asked him and his fellow freight agents to "be alert"

for suspicious persons or packages, and if their sus-

picions were aroused "they open the box and if there is

any contraband in it, they leave it open and call the

police." According to Miss Durden, Gos explained that

such suspicions may be caused by unusual appearance

or conduct of the individual, a distinctive odor emanating

from the package, or a discrepancy between the weight

of the package and the weight it would have if it contained

the articles claimed. Finally, Miss Durden testified

Gos also told her that on a few occasions the police

asked him to be on the lookout for particular named

individuals.

After detailed arguments on the point, the court

at the preliminary hearing made a specific finding of

-B6-

fact that Gos was not acting as an agent of the police

when he opened the carton in question. =

I

Inasmuch as Officer McLaughlin proceeded with-

out benefit of a search warrant, the burden was on the

prosecution to show proper justification for the search.

(Badillo v. Superior Court (1956) 46 Cal. 2d 269, 272.)

The record discloses that the various rulings of

the courts below were directly responsive to the prog-

ress of an appeal in a closely similar case, People v.

McGrew. There the defendant brought a new footlocker

to the United Airlines freight counter at the San Diego

airport, to be shipped to San Francisco. The employee

on duty, one Dowling, became suspicious because of

McGrew's general appearance and the apparently ex-

ceptional weight of the locker, which McGrew declared

contained books and clothing. At the direction of his

supervisor, Dowling opened the locker by knocking out

the hinge pins. Inside, he observed several bricks or

packages wrapped in brown paper or newspaper. He

closed the lid and called the police. When an officer

arrived, Dowling reopened the locker and showed him

2/ The court stated, "I am not satisfied he is

an agent. I haven't heard any evidence here setting

forth that he did it at the direction of the Police Depart-

ment or any law enforcement agent. I listened very

carefully for that and I listened to what he had to say

and what the young woman had to say and I can't find

that he is an agent of any law enforcement agency. "'

-B7-

the contents. The officer inspected one of the packages,

and a narcotics agent decided they contained marijuana.

The police then removed all but one package, replacing

them with ballast.

Dowling notified other airlines about McGrew and

his shipment. A few hours later McGrew brought a

second footlocker to the Western Airlines freight

counter, saying it contained books and dishes. The

Western employees alerted the police, and the same

narcotics agent responded. Although the locker had not

been opened, by compressing the lid the agent detected

an odor of marijuana. At his request, the airline em-

ployees then opened the locker by knocking out the hinge

pins. The contents were bricks of marijuana wrapped

in brown paper. McGrew was arrested Some two hours

later in the airport restaurant; a Suitcase he had checked

was also found to contain marijuana.

The trial court granted McGrew's motion to sup-

press the evidence on the ground of illegal search and

seizure, and dismised [sic] the charges. On the

People's appeal the Court of Appeal held the evidence

admissible, and reversed. (People v. McGrew (Cal.

App. 1969) 75 Cal. Rptr. 378. )

In the case at bar, the magistrate at the prelimi-

nary hearing relied on the Court of Appeal decision in

McGrew in overruling defendants' objections to the ad-

mission of the marijuana evidence.

We subsequently granted a hearing in McGrew.

and contrary to the Court of Appeal decision, affirmed

the order of dismissal. (People v. McGrew (1969)

Supra, 1 Cal. 3d 404.) In an opinion by a sharply divided

court, the majority held that the search of the footlockers

-B8-

did not fall within any of the doctrinal exceptions to the

warrant requirement of the Fourth Amendment. A

similar ruling was made in the companion case of Abt

v. Superior Court (1969) supra, 1 Cal. 3d 418.

In the case at bar, defendants' pretrial motions

to suppress came on for hearing shortly after the de-

cisions of this court in McGrew and Abt. The deputy

district attorney candidly advised the court that the

facts were "quite similar" to those of McGrew, and

submitted the matter without attempting to distinguish

that authority. The court agreed the case was governed

by the rule of McGrew and Abt. Observing that "I am

controlled by the law as it is, not as it was or will be,"

the court with apparent reluctance ruled that the evi-

dence must be suppressed.

While this case was pending on appeal, however,

the United States Supreme Court rendered its decision

in Chambers v. Maroney (1970) 399 U.S. 42. As we

shall explain, we conclude that under the rationale of

Chambers the evidence here challenged was the product

of a constitutionally reasonable search.

The basis of the majority's holding in McGrew

was the general rule that probable cause to believe

contraband will be found concealed in certain property

does not justify a warrantless search that is neither

consensual nor incident to a lawful arrest, "absent an

emergency." (1 Cal. 3d at p. 409.) Such an emergency

arises when there is an imminent danger that the prop-

erty to be searched may be removed or the contraband

destroyed. (Ibid.) The majority held that exception

inapplicable to the facts of McGrew, reasoning (at p.

410) there was no "likelihood that the lockers would be

removed or the contraband destroyed; both footlockers

-B9-

were safely in the custody of the airlines. Both foot-

lockers 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 obtained." As the officers had time to procure such

a warrant but did not do so, the majority concluded,

their search of the lockers was ipso facto "unreasonable"

within the meaning of the Fourth Amendment.

In Chambers y. Maroney, however, the United

States Supreme Court rejected that same line of reason-

ing in the context of an automobile search. There a

service station was robbed by two armed men, and eye-

witness descriptions of their appearance and the get-

away car were broadcast over police radio. Within an

hour the robbers' vehicle was stopped on the highway

by the police. The occupants were arrested, but the

car was not searched at the scene. Instead, it was

driven to the police station, where a later search re-

vealed weapons and incriminating evidence hidden under

the dashboard.

Affirming a denial of federal habeas corpus after

convictions of robbery, the United States Supreme Court

held (1) that the police had probable cause to arrest the

defendants for robbery, (2) that the search of the de-

fendants' car cannot be justified as an incident to that

arrest because it was conducted at a different time and

place, but (3) that the search was nevertheless reason-

able because of the distinguishing characteristic of

mobility possessed by the property in question, an auto-

mobile. The court began by observing (399 U.S. at p.

48) that "In terms of the circumstances justifying a

warrantless search, the Court has long distinguished

between an automobile and a home or office."" The court

referred at length to its leading decision of Carroll yv.

-B10-

United States (1925) 267 U.S. 132. in which it held that

because of their highly movable nature "automobiles

and other conveyances may be searched without a war-

rant in circumstances that would not justify the search

without a warrant of a house or an office, provided that

there is probable cause to believe that the car contains

articles that the officers are entitled to seize."' (399

U.S. at p. 48.)

After emphasizing that Carroll remains living

law today, the Chambers court faced the question

whether a different result was required in the case be-

fore it because the officers searched the defendants'

car not at the time and place it was stopped but later at

the police station. The distinction was held to be with-

out constitutional significance: "Arguably, because of

the preference for a magistrate's judgment, only the

immobilization of the car should be permitted until a

search warrant is obtained; arguably, only the 'lesser'

intrusion is permissible until the magistrate authorizes

the 'greater.' But which is the 'greater' and which the

‘lesser' intrusion is itself a debatable question and the

answer may depend on a variety of circumstances. For

constitutional purposes, we see no difference between

on the one hand seizing and holding a car before pre-

senting the probable cause issue to a magistrate and on

the other hand carrying out an immediate search without

a warrant. Given probable cause to search, either

course is reasonable under the Fourth Amendment... .

The probable-cause factor still obtained at the station

house and so did the mobility of the car unless the

Fourth Amendment permits a warrantless seizure of

the car and the denial of its use to anyone until a war-

rant is secured. In that event there is little to choose

in terms of practical consequences between an immediate

search without a warrant and the car's immobilization

-Bll-

until a warrant is obtained." (Italics added; fn. omit-

ted.) (Id. at pp. 51-52. )

In the case at bar we must determine whether the

rationale of Chambers should be limited to searches of

automobiles and similar self-propelled "vehicles" such

as trucks, trains, boats, or airplanes. Neither reason

nor precedent compels such a narrow, mechanistic

reading of Chambers and its predecessors. Carroll

itself was based in part on the historical example of

warrantless seizures of contraband "goods in the course

of transportation, " (267 U.S. at p. 149.) After a de-

tailed review of the early statutes on the subject, the

court concluded (at p. 151) that "contemporaneously

with the adoption of the Fourth Amendment we find in

the first Congress, and in the following Second and

Fourth Congresses, a difference made as to the neces -

sity for a search warrant between goods subject to

forfeiture, when concealed in a dwelling house or simi-

lar place, and like goods in course of transportation

and concealed in a movable vessel where they readily

could be put out of reach of a Search warrant."' Even

more broadly, the court said in Preston v. United

States (1964) 376 U.S. 364, 366, that "Common sense

dictates, of course, that questions involving searches

of motorcars or other things readily moved cannot be

treated as identical to questions arising out of searches

of fixed structures like houses." (Italics added.) And

in Cooper v. California (1967) 386 U. S. 58, 59, the

court cited Preston for the proposition that because cars

are "constantly movable" they may be searched with

probable cause but without a warrant "although the re-

sult might be the opposite in a search of a home, a store,

or other fixed piece of property. '' (Italics added. )

Is a box or trunk consigned to a common carrier

-B12-

for shipment to a remote destination a "thing readily

moved" or a "fixed piece of property"? The answer,

self-evidently, is the former. To be sure, such a box

has neither wheels nor motive power; but these features

of an automobile are legally relevant only insofar as

they make it movable despite its dimensions. A box,

which is a fraction of the size and weight of an auto-

mobile, is movable without such appurtenances. It is

also true that a box or trunk, as distinguished from an

automobile, may serve the double purpose of both stor-

ing goods and packaging them for shipment. But when-

ever such a box is consigned to a common carrier, there

can be no doubt that it is intended, in fact, to be moved.

What is true of a box or trunk is true of all goods

or chattels consigned to a common carrier for shipment.

As they are no less movable than an automobile, the

reasons for the rule permitting a warrantless search

of a vehicle upon probable cause are equally applicable

to the search of such a chattel. 3/ Inthe language of

the United States Supreme Court decisions, "common

sense dictates" that when the police have probable cause

to believe a chattel consigned to a common carrier con-

tains contraband, they must be entitled either (1) to

search it without a warrant or (2) to "seize'' and hold it

until they can obtain a warrant; absent these remedies,

the chattel will be shipped out of the jurisdiction or

claimed by its owner or by the consignee. Chambers

teaches us, however, that in those circumstances there

3/ This rule does not apply to first class mail,

which has historically been accorded special treatment

by the United States Supreme Court. (See, e.g., United

States v. Van Leeuwen (1970) 397 U.S. 249, 251-252.)

-B13-

is no "constitutional difference" between the alternatives

thus facing the police: an immediate search without a

warrant, says the Chambers court, is no greater an

intrusion on the rights of the owner than immobilization

of the chattel until a warrant is obtained, and "either

course is reasonable under the Fourth Amendment. "

(399 U.S. at p. 52.)

Finally, contrary to the reasoning of the majority

of this court in McGrew (at p. 410 of 1 Cal. 3d), we

learn from Chambers there is no constitutional relevance

to the fact that a chattel consigned to a common carrier

--such as the cartons in the case at bar--is temporar-

ily entrusted to the "custody" of the carrier. In

Chambers the defendants' automobile was seized by

police officers and impounded at the police station; if

the high court can Say, as it does, that under those

circumstances "the mobility of the car" still obtained

at the station house (399 U.S. at p. 52), a fortiori a

chattel such as here involved remains 'mobile" in the

constitutional sense despite its limited and voluntary

bailment to a common carrier.

Fairly construed, the reasoning of the United

States Supreme Court in Chambers thus undermines the

foundation of the majority opinions in McGrew and Abt.

(Accord, People v. Superior Court (Evans) (1970) 11

Cal. App. 3d 887, 893.) For these reasons, McGrew

and Abt are no longer to be followed.

We are not unmindful of the recent decision of the

United States Supreme Court in Coolidge v. New Hamp-

Shire (1971) 403 U.S. 443; properly considered, how-

ever, we do not interpret that decision to affect the

impact of Carroll and Chambers on McGrew and Abt.

-Bl4-

First, Coolidge is distinguishable on its facts.

After arresting a murder suspect in his house, the

police seized his automobile and searched it later at

the police station, finding physical evidence that the

victim had been inside the vehicle. Rejecting a conten-

tion that there were "exigent circumstances" to justify

the search and seizure without a valid warrant, the

plurality opinion of Justice Stewart emphasized the

following facts: "In this case, the police had known for

some time of the probable role of the Pontiac car in the

crime. Coolidge was aware that he was a suspect in the

Mason murder, but he had been extremely cooperative

throughout the investigation, and there was no indication

that he meant to flee. He had already had ample oppor-

tunity to destroy any evidence he thought incriminating.

There is no suggestion that, on the night in question, the

car was being used for any illegal purpose, and it was

regularly parked in the driveway of his house. The

opportunity for search was thus hardly 'fleeting.' The

objects that the police are assumed to have had probable

cause to search for in the car were neither stolen nor

contraband nor dangerous." (Id. at p. 460.)

Here, in sharp contrast, law enforcement author-

ities had not "known for some time" of the existence or

probable contents of the five cartons presented by de-

fendants for shipment; although defendants were not

deliberately fleeing, both were departing from the prem-

ises and one was already on board an airplane preparing

to fly out of the jurisdiction; the cartons were not rest-

ing on private property, but had heen consigned to a

common carrier for transportation to a remote destina-

tion; and there was probable cause to believe (see Part

III, post) that the cartons were being "used for an il-

legal purpose" in that they contained not "mere evidence"

but contraband. Each of these factors was specifically

—

found to be lacking in Coolidge; measured by the high

court's own standards, therefore, the opportunity to

search in the case at bar was much more "fleeting"'--

and prompt action was far more imperative--than in

Coolidge.

Second, that portion of Justice Stewart's plurality

opinion (Part II B, 403 U.S. at Pp. 458-464) which pur-

ports to narrow the Carroll-Chambers rule was in any

event signed by only four members of the court (Stewart,

J., Douglas, J., Brennan, J., and Marshall, J.).

Although concurring in the judgment, Justice Harlan

declined to join in Part II B of the opinion (see id. at p.

491), and the four remaining justices expressly dis-

agreed with Justice Stewart on this point (id. at p. 504.

dissenting opn. by Black, J., joined by Burger, C.J. ;

and Blackmun, J. ; id. at p. 525, dissenting opn. by

White, J., joined by Burger, C.J. ). It follows that the

Carroll-Chambers issue raised by the plurality opinion

in Coolidge was in fact considered by an equally divided

court, and hence was not actually decided: under settled

doctrine, the judgment of an equally divided United States

Supreme Court "is without force as precedent. " (Eaton

v. Price (1960) 364 U.S. 263, 264.) Thus we are bound

to apply the Carroll-Chambers rule according to our

present understanding of its scope.

-B15-

II

Turning to the facts of the case before us, we find

it undisputed that the carton opened by Gos was a chattel

consigned to a common carrier for shipment. The dis-

positive question, therefore, is whether there was prob-

able cause to believe the carton contained contraband.

-B16-

To begin with, it is not necessary that the airline

employee himself have such probable cause unless he

is chargeable with acting as a police agent in opening

the shipment. "The conduct of a person not acting

under the authority of a state is not proscribed by the

Fourth or Fourteenth Amendments of the federal Consti-

tution. 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. There-

fore, acquisition of property by a private citizen from

another person cannot be deemed reasonable or un-

reasonable" within the meaning of the constitutional

provisions. (People v. Superior Court (Smith) (1969)

70 Cal. 2d 123, 128-129, and cases cited.) Whether an

airline employee acts as an agent of the police is, of

course, a question of fact, but some guidelines have

emerged from the reported decisions in related cases. 4/

First, it is evident that the conduct of an airline

employee who was hired and paid by the police to search

any and all suspicious packages in the hope of finding

evidence of crime would be judged by Fourth Amendment

standards. (People v. Tarantino (1955) 45 Cal. 2d 590,

595.) The same would be true of the conduct of an air-

line employee who, although not in the actual hire of

the police, nevertheless participated in planning and

implementing a "joint operation” with law enforcement

authorities for the purpose of obtaining incriminating

evidence against a specific person. (Stapleton v. Su-

perior Court (1968) 70 Cal. 2d 97, 100-102.) And even

4/ This question was expressly left open in both

McGrew (1 Cal. 3d at p. 409) and Abt (id. at p. 421).

The analysis we now adopt requires that it be reached

and resolved.

a:

though he had no prior arrangement with the police, an

airline employee would be deemed to act as an agent

thereof if he were to open and search a specific package

at the express direction or request of law enforcement

authorities. (People v. Fierro (1965) 236 Cal. App. 2d

344, 347.) None of these situations, however, is pre-

sented in the case at bar.

-B17-

An alternate ground of our holding in Stapleton

was that in appropriate circumstances a private citizen

may also be deemed to act as an agent of the police

when the latter merely "stand silently by, "i.e. , when

they knowingly permit the citizen to conduct an illegal

search for their benefit and make no effort to protect

the rights of the person being searched. (70 Cal. 2d at

pp. 102-103.) This rule forestalls belated police claims

that they did not actually "direct" or "request" their lay

associate to undertake the illegal search, and thereby

prevents them from doing indirectly--by silent but un-

mistakable approval--what they cannot constitutionally

do directly.

In the peculiar context of searches by airlines or

other common carriers, however, the foregoing rule

would appear to have little if any application. First. it

is obvious that the rule cannot be invoked unless the

police have both actual knowledge of the search and the

opportunity to prevert it. These requirements are met

when the police are literally "standing by" while a search

takes place in their presence. For example, in both

Stapleton and the case on which it relies (Moody v.

United States (D. C. Mun. App. 1960) 163 A. 2d 337) the

search was the outcome of a joint civilian-police oper-

ation directed against a Specific individual, and the

police were physically present throughout the significant

events. Thus they knew of the search and could have

-B18-

intervened to stop it. By contrast, a common carrier

ordinarily conducts its investigations on a random basis

whenever a suspicious package is presented for ship-

ment, on the initiative of the employees involved and

before law enforcement authorities are called to the

scene. The requisite elements of police knowledge and

opportunity to intervene are therefore lacking. For the

same reason, they are lacking in the case at bar.

A further prerequisite to invoking the Stapleton-

Moody rule is, manifestly, that the search permitted

by the police be illegal. For example, without any

color of authority the private party in Moody searched

the defendant's apartment (cf. Chapman v. United States

(1961) 365 U.S. 610, 613), and in Stapleton searched

the locked trunk of the defendant's parked automobile

(cf. Preston v. United States (1964) supra, 376 U. Ss.

364, 366-367). But a common carrier, as we shall see,

ordinarily has independent and reasonable grounds to

inspect packages committed to its custody.

When a shipper consigns goods in a sealed package

to a common carrier, such matters as rates, insurance

values, and methods of handling are customarily deter-

mined by the carrier on the basis of the shipper's rep-

resentations as to the contents of the package. Contrary

to early case law on the point (Hayes v. Wells, Fargo

& Co. (1863) 23 Cal. 185, 189-190), current tariff pro-

visions under which regulated carriers operate in Cali-

fornia authorize the carrier to open and inspect the

package if it suspects that the nature or value of the

contents does not correspond to those representations.

Further, because a common carrier has a general

duty of care towards all the goods it transports, it also

has the right to open and inspect a package which it

-B19-

Suspects contains a dangerous device or Substance which

may damage other goods in the shipment or the vehicle

carrying them. (13 Am. Jur. 2d, Carriers, § 238, and

cases cited. )

Finally, a common carrier, no less than any other

citizen, has the right, indeed the duty, not to knowingly

allow its property to be used for criminal purposes. 5/

While a carrier is bound to accept whatever freight it

holds itself out as accustomed to carry (Civ. Code,

§ 2169), itis obviously not bound to accept freight which

it is illegal to possess or transport (see Health & Saf.

Code, §§ 11530 [possession of marijuana], 11531 [trans-

portation of marijuana] ). Although such freight may

not present a physical hazard to other goods or the

vehicle carrying them, the carrier is not required to

risk the injury to its reputation and business which

could well ensue from public knowledge that it permits

its facilities to be used by criminals for the purpose of

trafficking in narcotics. Accordingly, the carrier has

the additional right to open and inspect a package which

it suspects contains contraband. This is precisely the

basis upon which Gos acted in the case at bar.

We have not overlooked the testimony indicating

the police had previously asked Gos and his fellow em-

ployees to "be alert" for suspicious persons or packages

5/ Thus in People y. Botts (1967) 250 Cal. App.

2d 478, 481 -483, it was held that a service station

attendant who spied on two men using his restroom for

illegal narcotics activities was not acting as an agent

of the police and his conduct was not to be judged by

Fourth Amendment Standards. (Compare Bielicki y.

Superior Court (1962) 57 Cal. 24 602.)

-B20-

and to contact the authorities if they should see any.

But such a request, whether communicated orally or

by means of bulletins or circulars (e. g. , People v.

Temple (1969) 276 Cal. App. 2d 402, 408), does not ipso

facto create a police agency relationship. Substantial

numbers of citizens are deeply concerned about the

problem of crime in our society, particularly the dan-

gers posed by the narcotics traffic. By the very nature

of their work, employees of common carriers are es-

pecially likely to come into contact with that traffic.

When the authorities respond to such public interest

with drug education programs and generalized appeals

for the assistance of the citizenry, 6/ they do not auto-

matically "deputize" all those who may have occasion

to act on the information thus provided: ''There is,

certainly, a line to be drawn between joining the police

in a specific investigation already launched by them and

making a simple response to a general request for

6/ As concluded by the President's Commission

on Law Enforcement and Administration of Justice:

"That every American should cooperate fully with of-

ficers of justice is obvious .... [T]he complexity and

anonymity of modern urban life, the existence of pro-

fessional police forces and other institutions whose

official duty it is to deal with crime, must not disguise

the need--far greater today than in the village societies

of the past--for citizens to report all crimes or sus-

picious incidents immediately; to cooperate with police

investigations of crime; in short. to 'get involved. ' =

(The Challenge of Crime in a Free Society. Report by

the President's Commission on Law Enforcement and

Administration of Justice (1967) p. 288.)

-B21-

cooperation in detecting crime, a badge of good citizen-

ship." (Ibid. )7/

By the same token we perceive no Sinister signifi-

cance is Gos' practice, which he freely admitted, of

leaving open any package which he found to contain a

substance he believed to be contraband. An employee

of a common carrier who exercises his right to open

and inspect a package Suspected to contain contraband

will, of course, close and reseal that package if his

suspicions prove unfounded. It is a non sequitur to re-

quire him to do the same when the package does contain

apparent contraband. On the contrary, he is entitled

at that point to have his suspicions confirmed by per-

Sons experienced in identifying narcotics, and who can

take appropriate measures if the substance is in fact

illegal.

Thus in People v. Lanthier (1971) 5 Cal. 3d 751,

757-758, a university maintenance man opened a stu-

dent's briefcase while investigating a noxious odor

emanating from a locker; he Suspected the contents

were marijuana, and the briefcase was turned over to

the police for examination. Relying on McGrew and

7/ Nor does an agency relationship arise merely

because, as asserted in the case at bar, the police from

time to time may ask airline employees to be on the

lookout for particular named individuals and to contact

the authorities if they are observed. That sort of co-

operation is also the sole purpose of the "wanted" post-

ers displayed in all our post offices; yet a citizen who

sees such a poster is not thereby transformed into an

FBI agent should he later recognize the suspect and

either question or detain him.

- B22-

Abt the student contended that even if it was reasonable

for the maintenance man to open the briefcase, he

closed it after doing so and its contents were therefore

no longer "in plain sight" when the police arrived. Up-

holding the admissibility of the marijuana thus seized,

we said in a unanimous opinion: "In their effort to

identify the contents of defendant's briefcase, ... it

was reasonable for the university officials to secure

professional advice by enlisting the aid of campus and

local police. A single consultation by such officials

with a police expert on narcotics falls far short, for

example, of a general police-instigated exploratory

search of student housing or belongings in the hope of

turning up contraband. Rather, the officials' conduct

in the case at bar is analogous to that of 'the landlord

or bailee who innocently discovers the suspicious cir-

cumstances, and seeks expert advice as to the nature

of the use to which his premises or facilities are being

appropriated. The latter would be no more than an ex-

tension of the plain-sight rule, by augmenting the ob-

servations of the layman with the expertise of the police. '

(People v. Baker (1970) 12 Cal. App. 3d 826, 838 [90 Cal.

Rptr. 508). )

Viewed in this light, the question of who opened

or closed defendant's briefcase pales into insignificance. "

(Fn. omitted. )

Here. too, there was no "general police-instigated

exploratory search."' Rather, as in Lanthier, an em-

ployee acting on his own initiative opened and inspected

a specific container on his employer's premises, and

believed its contents were marijuana. At that point he

was entitled to show those contents to law enforcement

personnel; and just as with the student briefcase in

Lanthier, the question whether an airline employee

-B23-

awaiting the arrival of the police should leave open the

package he has examined, or close it and then reopen

it in front of the officer, "pales into insignificance, ' 8/

Whichever choice is made, it cannot reach backwards

in time to brand as the act of a police agent the employ-

ee's original decision to inspect the package.

We conclude that the evidence fully supports the

magistrate's finding of fact that Gos was acting as a

private individual when he opened the package here in

issue. For the reasons stated, therefore, it was not

necessary that in so doing he have probable cause to

believe it contained contraband.

III

Officer McLaughlin, of course, was required to

have such probable cause, and the record contains

ample evidence to support such a finding.

At the outset, it must be clearly understood that

the issue which divided this court in People v. Marshall

(1968) supra, 69 Cal. 2d 51, is not here presented.

There the majority held that because a dwelling cannot

be searched on probable cause alone, a warrantless

search of a package secreted in a dwelling cannot be

justified under the "plain view" exception unless the

officer can actually see the contents of the package.

8/ Parenthetically we note that in Lanthier the

defendant complained because the container was not

left open, while in the present case the defendants com-

plain because it was.

-B24-

(Id. at p. 59.) In the case at bar, by contrast, the

packages were consigned to a common carrier for ship-

ment and hence, for the reasons stated earlier, could

be searched on probable cause. Thus the issue was not

whether the marijuana in the packages was in "plain

view" but simply whether Officer McLaughlin had prob-

able cause to believe they did contain that narcotic.

On this point, the majority opinion in Marshall agreed

(69 Cal. 2d at p. 57, fn. 2) that "an officer may rely on

all his senses" in determining the presence of such

probable cause. (Accord, People v. Temple (1969)

supra, 276 Cal. App. 2d 402, 410-411, fn. 10.)

Applying that rule, the court correctly held that

"Reasonable grounds for believing a package contains

contraband may be adequately afforded by its shape, its

design, and the manner in which it is carried." (People

v. Anderson (1968) 266 Cal. App. 2d 125, 132-133; see

also Hernandez v. United States (9th Cir. 1965) 353

F. 2d 624, 627-628; cf. Henry v. United States (1959)

361 U.S. 98, 104.) And the same is true of an odor

which the package may emit. (People v. Christensen

(1969) 2 Cal. App. 3d 546, 548-549, and cases cited. )

In the case at bar we note that Officer McLaughlin

was qualified on the witness stand as being well versed

in the detection and identification of illegal narcotics.

He testified that upon walking up to the carton opened

by Gos, he observed the brick-shaped packages inside

it and smelled a distinctive odor emanating therefrom.

He immediately recognized the size, shape and packag-

ing of the bricks to be typical of those used to transport

"kilo" quantities of marijuana, and further recognized

the odor to be that of marijuana. In the light of all the

circumstances, a prudent man of Officer McLaughlin's

~B25-

training and experience could reasonably believe the

packages contained contraband.

Predicated on such probable cause, the officer's

subsequent search of the packages before him and the

remaining four cartons in the shipment was constitution-

ally reasonable under the rationale of Chambers, and

the evidence discovered in that search is admissible.

Therefore, the trial court's order of suppression, the

dismissal of the charges against McKinnon, and the

granting of Turk's motion under section 995, were in

error.

The orders appealed from are reversed.

MOSK, J.

WE CONCUR:

WRIGHT, C.J.

McCOMB, J.

BURKE, J.

-Cl-

APPENDIX "'C"

£

zz

PEOPLE v. McKINNON

Crim. 15379

DISSENTING OPINION BY PETERS, J.

I dissent.

I

In People v. McGrew, 1 Cal. 3d 404, law enforce-

ment officials conducted a similar search of a trunk

consigned to an airline. There too the police had prob-

able cause to believe that the trunk contained marijuana,

We correctly held, in my view, that the search without

a warrant was unreasonable and therefore a violation of

the defendant's Fourth Amendment rights. The majority

in the instant case in overruling McGrew have totally

abrogated the Fourth Amendment requirement of a

search warrant insofar as concerns goods consigned to

a common carrier.

In McGrew we summarized Fourth Amendment

principles: 'People v. Marshall, 69 Cal. 2d §1, 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 for a search

incident to an arrest. (E.g., People v. Harris, 62 Cal.

2d 681, 682-683. )

-C2-

"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. Mar-

shall, supra, 69 Cal. 2d 51, 56-57, 61.)

"|. The Fourth Amendment protection of ‘effects’

includes securely closed footlockers shipped through

common carriers. Neither the language of the Fourth

Amendment, nor of any of the cases interpreting the

protection of the amendment, suggest that warrants

apply to 'houses' but not to 'effects.' The exceptions

to the requirement of a warrant are based on circum-

stances and not on categories of item...." (1 Cal. 3d

at p. 409.)

In McGrew the People contended, as they do here,

that footlockers are movable and therefore in imminent

danger of removal. This court said then that there was

no danger of imminent removal or destruction of the

evidence in circumstances like those before us. The

majority should either reiterate today or forthrightly

recant that statement because if it is true there are no

special circumstances to justify a search without a

warrant and the search was invalid.

I believe that McGrew is good law today. It should

be; the law applied there is fundamental to our consti-

tutional jurisprudence. The majority find no fault with

our decision of three years ago. They do not quarrel

with its logic or the principles upon which it relies.

They rather purport to rely on the subsequent case of

Chambers v. Maroney, 399 U.S. 42, a vehicle case

which is not controlling. while giving little or no weight

-C3-

to the most recent vehicular search case, Coolidge v.

New Hampshire, 403 U.S. 443.

In Chambers, the police arrested men they had

every reason to believe were robbers fleeing from the

scene of the crime. The defendants' car was taken to

the police station, where it was searched without a

warrant, Although the car was for practical purposes

immobilized, the high court stated that its prior mobility

"still obtained at the station house... unless the

Fourth Amendment permits a warrantless seizure of the

car and the denial of its use to anyone until a warrant is

secured. In that event there is little to choose in terms

of practical consequences between an immediate search

without a warrant): and the car's immobilization

until a warrant is obtained. ... " (399 U.S. 42, 52.)

Mr. Justice Harlan, in dissent, ably responded

to this contention: ''The Fourth Amendment proscribes.

to be sure, unreasonable 'seizures' as well as ‘searches. '

However, in the circumstances in which this problem is

likely to occur, the lesser intrusion will almost always

be the simple seizure of the car for the period--perhaps

a day--necessary to enable the officers to obtain a search

warrant. ... [P]ersons who wish to avoid a search--

either to protect their privacy or to conceal incriminating

evidence--will almost certainly prefer a brief loss of the

1/ Such a search would be valid pursuant to

Carroll v. United States, 267 U.S. 132, 153. Since the

car was not searched immediately on the highway nor

immobilized until a warrant could be obtained, the

court's statement concerning the car's continuing

"mobility" clearly indicates that the search at the police

station must be considered to have been "immediate, "'

-C4-

use of the vehicle in exchange for the opportunity to have

a magistrate pass upon the justification for the search.

To be sure, one can conceive of instances in which the

occupant... would be more deeply offended by a tem-

porary immobilization of his vehicle than by a prompt

search of it. However, such a person always remains

free to consent to an immediate search, thus avoiding

any delay. Where consent is not forthcoming, the occu-

pants of the car have an interest in privacy that is pro-

tected by the Fourth Amendment even where the circum-

stances justify a temporary seizure. [Citation.] ..."

(399 U.S. 42, 63-64. )

I believe Mr. Justice Harlan's to be the reasoned

view, but of course am bound by the result reached by

the majority, a result I thought reasonably apparent

after Cooper v. California, 386 U.S. 58. (People v.

Webb, 66 Cal. 2d 107, 208.) 2

Chambers, however, does not purport to apply to

everything that is not nailed down or affixed to realty.

The Supreme Court's opinion is closely tied to a long

series of cases involving one and only one form of mova-

ble object--that which is used as a vehicle to transport

2/ Webb involved almost precisely the same fact

situation as that in Chambers. The majority sustained

the search on the theory that, although removed in time

and place from the arrest, it was nevertheless incident

to it. I concurred only because I believed that Cooper v.

California, supra, 386 U.S. 58, presaged the Chambers

case. It may be noted that the majority in Chambers

expressly held that a search so removed in time and place

could not be construed as incident to an arrest. (399

U.S. atp. 47.)

-—

-C5-

goods from one place to another.

Carroll v. United states, supra, 267 U.S. 132, is

the seminal case upon which Chambers is based and the

United States Supreme Court decision in which the prob-

lem is treated at length. The Carroll court carefully

analyzed the colonial writs of assistance and contempor-

aneous legislation enacted by the first few Congresses,

concluding that "contemporaneously with the adoption of

the Fourth Amendment we find in the first Congress, and

in the following Second and Fourth Congresses, a differ-

ence made as to the necessity for a search warrant be-

tween goods subject to ferfeiture, when concealed ina

dwelling house or similar place, and like goods in course

of transportation and concealed in a movable vessel

where they readily could be put out of reach of a search

warrant....' (267 U.S. 132, 151; italics added. )

The Carroll court never attempted to state a rule

applicable to all movable items. Rather it sought to

recognize "'a necessary difference between a search of

a store, dwelling house or other structure... anda

search of a ship, motor boat, wagon or automobile, for

contraband goods, where it is not practicable to secure

a warrant because the vehicle can be quickly moved out

of the locality or jurisdiction in which the warrant must

be sought."" (id., at P. 153; italics added. ) Every

United States Supreme Court case which follows Carroll

has involved a vehicle. (Husty v. United States, 282

U.S. 694; Scher v. United States, 305 U.S. 251; Pres-

ton v. United States, 376 U.S. 364; Dyke v. Taylor

Implement Co., 391 U.S. 216; Chambers v. Maroney,

Supra, 399 U.S. 42: Coolidge v. New Hampshire, supra,

403 U.S. 443.)

The most recent case to address itself to the

tememcne

-C6-

problems of a vehicular search is Coolidge v. New

Hampshire, supra, 403 U.S. 443. The majority attempt

to distinguish that case from the instant case insofar as

it attempts to clarify the rule of the search without a

warrant in exigent circumstances, and in the end the

majority maintain that because no clear majority sup-

ported the opinion of the court in its entirety the opinion

is of no significance insofar as the instant case is con-

cerned. I disagree with both points.

In Coolidge, the car was parked outside the house

and was not being used at the time it was seized by the

police. There was no way for the defendant to gain

access to the automobile once the police had arrived at

his home. Furthermore, Mrs. Coolidge and her baby

were also taken to other lodging where the police stayed

with them for the remainder of the night. The car was

towed to the police station by midnight and the Coolidge

house was kept under strict guard for the entire evening.

Just as the car in Coolidge could not seem to be

moved or hidden by any of the suspects, so too the five

cartons in the instant case were unable to be moved, at

least not without the police seeing their movement by

the defendants and arresting them with probable cause.

In both cases, the exigent circumstances that Carroll

and Chambers require are nonexistent, and five justices

of the Supreme Court held that in the absence of those

circumstances the search of the car without a warrant

could not be upheld.

The maiority state that Justice Stewart's plurality

opinion "was in any event signed by only four members

of the court (Stewart, J., Douglas, J., Brennan, J.,

and Marshall, J.)" and for this reason "'' is without

force or precedent.' " What the majority do not tell us

”™ _—

a hy

is that the fifth member of the United States Supreme

Court who joined to make the majority in Coolidge in

reversing the conviction expressly joined in part IJ--D

of Justice Stewart's opinion and that part is directly in

point here. That part of Justice Stewart's opinion was

a vigorous attack and rejection on a dissenting opinion

which set forth views substantially similar to those

expressed by the majority in the case before us.

Justice Stewart in part II--D of his opinion

expressly stated: "Since the police knew of the presence

of the automobile and planned all along to seize it, there

was no ‘exigent circumstance’ to justify their failure to

obtain a warrant. The application of the basic rule of

Fourth Amendment law therefore requires that the fruits

of the warrantless seizure be suppressed." (403 U.S.

at p. 478; italics added. )

In part II--D Justice Stewart further maintains,

"{ T]he stopping of a vehicle on the open highway and a

subsequent search amount to a major interference in the

lives of the occupants. Carroll held such an interference

to be reasonable without a warrant, given probable

cause. It may be thought to follow a fortiori that the

seizure and search here--where there was no stopping

and the vehicle was unoccupied-- were also reasonable,

since the intrusion was less substantial, although there

were no exigent circumstances whatever. Using reason-

ing of this sort, it is but a short step to the position that

it is never necessary for the police to cbtain a warrant

before searching and seizing an automobile, provided

that they have probable cause. And MR. JUSTICE

WHITE appears to adopt exactly this view when he pro-

poses that the Court should 'treat searches of automo-

biles as we do the arrest of a person, '

-C8-

"If we were to accept MR. JUSTICE WHITE's view

that warrantless entry for purposes of arrest and

warrantless seizure and search of automobiles are per

se reasonable, so long as the police have probable cause,

it would be difficult to see the basis for distinguishing

searches of houses and seizures of effects. If itis

reasonable for the police to make a warrantless night-

time entry for the purpose of arresting a person in his

bed, then surely it must be reasonable as well to make

a warrantless entry to search for and seize vital evi-

dence of a serious crime. If the police may, without a

warrant, seize.and search an unoccupied vehicle parked

on the owner's private property, not being used for any

illegal purpose, then it is hard to see why they need a

warrant to seize and search a suitcase, a trunk, a shop-

ping bag, or any other portable container in a house,

garage, or back yard." (At pp. 479-480; italics in the

original. )

And finally what could be a more clear expression

of the inapplicability of the Carroll-Chambers rule than

when Justice Stewart concludes, 'We are convinced that

the result reached in this case is correct, and that the

principle it reflects--that the police must obtain a war-

rant when they intend to seize an object outside the scope

of a valid search incident to arrest--can be easily under-

stood and applied by courts and law enforcement officers

alike. It is a principle that should work to protect the

citizen without overburdening the police, and a principle

that preserves and protects the guarantees of the Fourth

Amendment," (At p. 484.)

Thus, the five justices who reversed the conviction

in Coolidge would not agree with the analysis of the

majority in the instant case in allowing a search of the

five cartons in question without a warrant.

-C2

The rule of Carroll, and its progeny is clear.

Where the goods are in the course of transportation,

i.e., in a vehicle capable of conveying them beyond the

jurisdiction, a search without a warrant may be con-

ducted by a law enforcement officer whe has probable

cause to believe that seizable goods will be found. A

carton in a freight office is not a vehicle. It may be

used to store goods or to package them for shipment:

a carton cannot get from here to there on its own power.

The majority state that if the mobility of a car

still obtains at the station house, "a fortiori a chattel

such as here involved remains 'mobile' in the constitu-

tional sense despite its limited and voluntary bailment

to a carrier." Indeed, chattels will retain their movable

character anywhere, whether within a depot, dwelling

house, or concrete vault as well as an airport. unless

they are affixed to realty or otherwise rendered non-

movable. The point is not that the chattels here involved

were within the custody of the airlines, but that they were

hot in a vehicle capable of moving them beyond the juris-

diction on its own power: i.e. , they had not entered the

course of transportation. Drawing a line at goods physi-

cally aboard a carrier at least has the virtue of certainty.

This is the line drawn by the United States Supreme

Court in case after case. If all things movable could be

searched without a warrant if there were probable cause

to believe they contained evidence or contraband, the

Fourth Amendment would be rendered nugatory, and in

effect the search without a warrant would become the

rule rather than the exception,

-C10-

II

With respect to the discussion of agency, I agree

with the majority that there was sufficient evidence

before the magistrate to establish that Gos was not the

agent of the law enforcement officers. Nevertheless,

there was conflicting evidence, and I ao not believe that

the magistrate's determination may be upheld on the

record before us. It is clear from that record that the

magistrate applied an improper standard in determining

the agency question. As the majority recognize in

footnote 2 of their opinion, the basis of the magistrate's

decision was that he had heard no evidence of agency.

In the case before us, the testimony of Etta Durden, if

believed, established as a matter of law that Gos was

acting as an agent of the police department, and the

magistrate in ruling that there was no evidence was

obviously applying an improper standard. Although

Etta Durden's testimony might have been rejected by the

magistrate, he did not do so.

Miss Durden was hired to interview airport freight

agents and their role in helping law enforcement officials

control narcotics transportation. She testified as a

result of her conversation with Gos "that the police had

asked him (Gos) to be alert for any suspicious individuals

who are shipping packages and if they are suspicious, to

open them and the policy was to leave the boxes open and

call the State Narcotics Bureau. "

The majority do not discuss the plain effect of this

testimony, and their holding in today's decision should

not be read as affirmatively sanctioning the practice of

police officers requesting private citizens to make indis-

criminate searches and seizures without even probable

cause. Otherwise, the impact of this decision would

-Cll-

allow the police to unofficially deputize a private indivi-

dual, and where the police cannot search without a

warrant, the private individual at the direction and

suggestion of the police can, and any evidence uncovered

will be fully admissible in a court of law. I submit that

condoning this practice will inevitably lead to the type

of society George Orwell described in his novel "1984, "'

where an individual's private life is nonexistent and

everyone is an agent of the state.

With regard to Gos' search of the cartons, I do not

conclude that an airline employee, acting as an agent of

the airline pursuant to a CAB regulation enacted for the

protection of the airline, cannot open a box or shipment

if he suspects the consignor has overinsured it as part

of a plan to make a fraudulent insurance claim at a later

date. If the employee is acting for the best interests of

the airline and for its protection without any direction

from the police, I agree with the majority that he is

acting as a private individual and such a search would

not make him an agent of the police.

However, the magistrate's determination was based

on the premise that he had not heard any evidence of

agency. This was false. There was clear evidence ot

agency. Although there was also conflicting evidence, the

magistrate did not resolve the conflict and obviously

applied an erroneous standard. In failing to consider the

evidence of agency, the majority have failed to consider

the real issue in this case.

SAS SR, aN ae

von Baer oe

-C12-

Il

I am distressed that this court today bulldozes

new inroads through the protective covering of the Fourth

Amendment. It is of course a general principle of our

jurisprudence that the Bill of Rights be construed liber-

ally to protect those rights deemed so essential to a free

nation. Because the Fourth Amendment prohibits only

"unreasonable" searches and seizures, rather than

setting down an absolute standard of conduct, fidelity to

this principle of constitutional construction is here even

more important, For in Fourth Amendment cases, as

distinguished from the absolute measuring rod of the

First Amendment's dictates, our characterization of

what is reasonable and unreasonable in each case will

affect the standard used in succeeding cases. Unless

exceptions to the rule that a warrant be obtained prior

to search are granted only where compelling necessity

requires immediate action, there is substantial danger

that over time "[rlights declared in words might be lost

in reality. '' (Weems v. United States, 217 U.S. 349,

373.) I fear that today's decision is only the beginning

of more shocking intrusions upon Fourth Amendment

rights. I see no reason, for example, why ''common

sense" (to use the majority's finely honed analytical

concept) should not extend the right to search without a

warrant to goods within a dwelling that are so packaged

that they could easily be moved, such as any goods in a

paper bag or box.

The majority today take what they regard as a

small step. Because of the ratio decidendi on which

they rely, however, this must be only the beginning of

a long journey toward a society devoid of private

sanctuaries. The words of Justice Bradley, writing 85

years ago, retain their vitality today: 'It may be that

-C13-

it is the obnoxious thing in its mildest and least repul-

sive form; but illegitimate and unconstitutional practices

get their first footing in that way, namely, by silent

approaches and slight deviations from legal modes of

procedure, This can only be obviated by adhering to the

rule that constitutional provisions for the security of

person and property should be liberally construed, A

close and literal construction deprives them of half

their efficacy, and leads to gradual depreciation of the

right, as if it consisted more in sound than in substance.

It is the duty of courts to be watchful for the constitu-

tional rights of the citizen, and against any stealthy en-

croachments thereon. Their motto should be obsta

principiis....' (Boyd v. United States, 116 U.S. 616,

635.) I would withstand this beginning; I would affirm

the orders of the lower court.

PETERS, J.

I CONCUR:

TOBRINER, J.

-Di-

APPENDIX "D"

£222

PEOPLE v. McKINNON

Crim. 15379

DISSENTING OPINION BY SULLIVAN, J.

I join in Parts I and III of Justice Peters'

dissenting opinion. I would therefore affirm the

orders appealed from.

SULLIVAN, J.