State v. Rosborough

• Decision Date: 11 July 1980
• Docket Number: No. 6982,6982
• Citation: 62 Haw. 238,615 P.2d 84
• Parties: STATE of Hawaii, Plaintiff-Appellant, v. Richard S. ROSBOROUGH, Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 84

615 P.2d 84

62 Haw. 238

STATE of Hawaii, Plaintiff-Appellant, v. Richard S. ROSBOROUGH, Defendant-Appellee.

No. 6982.

Supreme Court of Hawai'i.

July 11, 1980.

Rehearing Denied Aug. 5, 1980.

Syllabus by the Court

1. Warrantless searches are presumptively unreasonable unless they fall within one of the narrowly defined established exceptions.

2. Warrantless search of footlocker safely immobilized by law enforcement officers was unreasonable in the absence of any exigency.

3. Seizure of matchbox without a warrant from arrestee's person was unreasonable as police officer had no reason to believe arrestee carried marijuana on his person and there was no apparent danger of attack or escape.

Arthur E. Ross, Deputy Pros. Atty., Honolulu, for plaintiff-appellant.

Evan R. Shirley and Wesley H. Ikeda, Honolulu (Shirley & Jordan, Honolulu, of counsel), for defendant-appellee. Before RICHARDSON, C. J., and OGATA, MENOR, LUM and NAKAMURA, JJ.

OGATA, Justice.

Defendant-appellee Richard S. Rosborough (appellee) was charged with possession of more than 2.2 pounds of marijuana, in violation of HRS § 712-1247(1)(e) (1976) and with possession of marijuana in any amount, in violation of HRS § 712-1249 (1976). The State of Hawaii (State) appeals from the granting of appellee's motion to suppress marijuana discovered in a footlocker and in a matchbox on his person. We affirm.

I.

The essential facts are not in dispute. On September 21, 1977, in Los Angeles, at about 10:30 p. m., a Western Airlines cargo handler detected a strong chemical odor from a footlocker which he was preparing to load. He opened the locker and discovered what appeared to be marijuana. The chemical odor emanated from two plastic air fresheners, an apparent attempt to disguise the scent of marijuana. The airport office of the Narcotics Detail of the Los Angeles Police Department was notified. Detective McGraff responded and confirmed that the content of the footlocker was marijuana. The locker was closed and set on to the named addressee Rosborough in Hawaii.

The following morning, on September 22, 1977, a Thursday, Detective McGraff called the Narcotics Detail of the Honolulu Police Department. The phone call was received at 8:10 a. m. He informed Honolulu police that a black footlocker was enroute to Honolulu to be picked up by Dick Rosborough, 59-408 Pupukea Road. The footlocker was scheduled to arrive on Flight 501, Western Airlines at 2:30 p. m. that day. At 2:00 o'clock p. m. police officers went to the Western Airlines Cargo Facility at Honolulu International Airport and requested and received the assistance of the assistant manager of the Western Airlines cargo and luggage section. At 2:35 p. m., Flight 501 arrived and the footlocker was unloaded. At 3:25 p. m., the assistant manager of the cargo facility called Rosborough and informed him that an item was ready for pick-up. Rosborough explained that he did not have a vehicle and did not know when he could pick up the cargo. Police officers maintained continued surveillance of the footlocker. At 9:30 p. m. that night, Rosborough arrived at the Western Airlines Customer Service Office and identified himself. The footlocker was turned over to Rosborough who then placed the footlocker in a rear seat of his car. A police officer approached appellee. Rosborough asked him if there was a restroom on the premises and the officer directed him to the nearest one. Upon his exit from the restroom, Rosborough was arrested in the lobby area for promoting a detrimental drug in the first degree. The arresting officer then extracted a "Diamond" safety match box from appellee's right front pants pocket. He opened the match box and found marijuana. Appellee was again arrested, this time for promoting a detrimental drug in the third degree. Immediately following the search of the match box, the police conducted a warrantless search of the footlocker. The location of the footlocker at the time of appellee's arrest and the search of its contents is unclear, but whether it was searched in the car or upon its removal from the car is immaterial, as it was clearly under the police officer's exclusive control at the time of the search. The footlocker is described in the police evidence report as "one blue footlocker with gold colored metal latches, rivets and corners. Size of locker: 16 in. by 17 in. by 31 in. The locker is locked with a combination padlock. The footlocker has leather straps on each end of the footlocker."

II.

The trial court found it unnecessary to rule on the warrantless search of the footlocker as it found that the search by the Western Airlines employee was a search subject to the Fourth Amendment, and that it was unreasonable, following United States v. Fannon, 556 F.2d 961 (9th Cir. 1977). While this appeal was pending, however, the Ninth Circuit Court of Appeals reversed its Fannon decision in United States v. Gumerlock, 590 F.2d 794 (9th Cir. 1979), cert. denied, 441 U.S. 948, 99 S.Ct. 2173, 60 L.Ed.2d 1052 (1979), and for purposes of this appeal, appellee has conceded that the airline employee's search of the footlocker was one conducted by a private individual, and hence not subject to the Fourth Amendment. Appellee also concedes the propriety of his arrest and the seizure of the footlocker but, as he did in the court below, challenges the search of its contents and the search of the matchbox. The standing issue is no longer before us as the State conceded, in oral argument, that appellee, charged with a possessory crime, has standing. The questions before us then, are the propriety of the searches of the footlocker and the matchbox.

III.

At issue is whether the warrantless search by the Honolulu police of a footlocker was unreasonable?

The general rule is that warrantless searches are presumptively unreasonable unless they fall within one of the narrowly-defined established exceptions. Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 2031-2032, 29 L.Ed.2d 564 (1971); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); State v. Kender, 60 Haw. 301, 307, 588 P.2d 447, 451 (1978); State v. Patterson, 58 Haw. 462, 467, 571 P.2d 745, 748 (1977); State v. Kaluna, 55 Haw. 361, 363, 520 P.2d 51, 55 (1974). The government has the burden of justifying warrantless searches. Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 2039, 23 L.Ed.2d 685 (1969); State v. Dias, 62 Haw. ---, ---, 609 P.2d 637, 641 (1980); State v. Kaluna, 55 Haw. at 363, 520 P.2d at 55.

Here, the Los Angeles Police Department telephoned the Honolulu Police Department and informed them that a footlocker addressed to appellee, known to contain marijuana, would be arriving in Honolulu some six hours later. Clearly, Honolulu police officers had probable cause to arrest appellee when he took possession of the footlocker and also had probable cause to seize the footlocker based on the information received from Los Angeles. See State v. Lloyd, 61 Haw. ---, ---, 606 P.2d 913, 916 (1980); State v. Hook, 60 Haw. 197, 202, 587 P.2d 1224, 1228 (1978). Probable cause to seize the footlocker, however, does not permit the greater intrusion of a warrantless search of its contents. Arkansas v. Sanders, 442 U.S. 753, 763, 99 S.Ct. 2586, 2592, 61 L.Ed.2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 13, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977). Chadwick and Sanders extended the prohibition of the Fourth Amendment against warrantless searches to personal luggage. "(L) uggage is a common repository for one's personal effects, and therefore is inevitably associated with the expectation of privacy." Arkansas v. Sanders, 442 U.S. at 762, 99 S.Ct. at 2592. The unauthorized search of a footlocker constituted an unreasonable invasion of appellee's reasonable expectation of privacy. In Chadwick, the United States Supreme Court held unreasonable a warrantless search of luggage or other similar personal items safely immobilized and under the control of law enforcement officers. In Sanders, the Court clarified its decision in Chadwick and explained that the automobile exception did not encompass the search of a suitcase found and seized from a vehicle and in the control of law enforcement officers, even though the officers had probable cause to believe it contained marijuana. The State does not and cannot claim that any exigency existed at the time the footlocker was searched. Nor does it claim that the warrantless search of the footlocker was incident to the arrest of the possessor. This exception was not argued and moreover, it does not appear that the footlocker was within appellee's control or within reach such that he could harm the officer or destroy evidence.

The State disputes the applicability of Chadwick and Sanders to the facts of this case and would distinguish this case on the prior events in Los Angeles. The State's contention is that the appellee lost his privacy interest in his footlocker upon the initial opening in Los Angeles by the airline employee which he now concedes to have been one conducted by a private person. The State relies on the "controlled delivery" or "reassertion of control" theory. Under this theory, where there is a prior valid search of luggage or other personal items by a private person, a valid seizure by law enforcement officers of one jurisdiction and a "controlled delivery" to the addressee, a subsequent search at the termination point of a controlled delivery is merely a reassertion of possession and part of the first seizure. The second search is considered part of the first search since "official dominion continued unbroken because close surveillance followed the seized contraband insuring that it remain within official possession." United States v. Ford, 525 F.2d 1308, 1313 (10th Cir. 1975). See United States v. Andrews, 618 F.2d 646 (10th Cir. 1980), petition for cert. filed (U.S. April 23, 1980) (No. 79-1706); United States v....