# Petition for a Writ of Certiorari — McKinnon v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1973
- **Citation:** 411 U.S. 931

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0262%3A1. Public record. Not legal advice.