Abt v. Superior Court

• Decision Date: 17 December 1969
• Court: California Supreme Court
• Parties: , 462 P.2d 10 John Peter ABT, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent. The PEOPLE, Real-Party in Interest. L.A. 29645.

Page 481

82 Cal.Rptr. 481

1 Cal.3d 418, 462 P.2d 10

John Peter ABT, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent The PEOPLE, Real-Party in Interest.

L.A. 29645.

Supreme Court of California In Bank.

Dec. 17, 1969.

Barry Tarlow and Robert N. Harris, Jr., Los Angeles, for petitioner.

No appearance for respondent.

Evelle J. Younyer, Dist. Atty., Harry Wood, Harry B. Sondheim, Maurice H. Oppenheim and Donald Kaplan, Deputy Dist. Attys., for real party in interest.

PETERS, Justice.

Defendant John Peter Abt petitions for a writ of prohibition after the Los Angeles Superior Court denied a motion to suppress evidence.

John Peter Abt was charged by information with transporting marijuana (Health & Saf.Code, § 11531), possession of marijuana for sale (Health & Saf.Code, § 11530.5) and possession of marijuana (Health & Saf.Code, § 11530). Abt moved the trial court to suppress all evidence of the charged offenses (under Pen.Code, § 1538.5). The motion was denied.

In this proceeding he urges that marijuana seized at the Los Angeles International Airport and all the 'fruits' of the seizure should be suppressed.

Abt brought two packages to the American Airlines freight service at Los Angeles International Airport on February 11, 1968, to be shipped to New York. While the packages were being accepted by an airlines employee, one Dunkel, another airlines freight employee, observed Abt 'standing there,' and noted that Abt was a 'hippie type with a bag dark black beard,' and that the packages were large, wrapped in brown paper, and tied with regular yellow string.

Dunkel had 'been told to be on the lookout of any type of people, hippie or anybody with any suspicious packages,' by his supervisor. The police had told him to be on the lookout for suspicious packages, such as trunks of any size, padlocked suitcases, and packages, and to call the Narcotics Bureau if he was suspicious. Dunkel was 'suspicious;' he observed Abt's car and wrote down a description of the car and the license number, and he instructed another employee to take the packages to his work area.

After obtaining permission from his supervisor, Dunkel cut open one of the packages with a knife, observed something wrapped in tinfoil, opened the tinfoil, and observed 'forms of grass.' Dunkel had previously discovered marijuana by searching suitcases and had learned to identify marijuana from this exposure. Dunkel then closed the package and phoned the police. Dunkel testified that he was 'aware' of the CAB regulations authorizing inspections.

The police officer observed several tinfoil-wrapped packages through a hole in the box. He opened the box completely, and removed one of the packages and observed the marijuana through the torn tinfoil wrapping. Abt was arrested after the police traced the license number on the car through an auto leasing company to Abt who had rented the car.

The People stipulated that the police had no warrant to search Abt's packages. The burden was then on the prosecution to justify the search and seizure. (E.g., People v. Marshall, 69 Cal.2d 51, 56, 69 Cal.Rptr. 585, 442 P.2d 665.)

In People v. McGrew, Cal., 82 Cal.Rptr. 473, at pp. 476--479, 462 P.2d 1, at pp. 4--8, it is concluded that personal effects whether or not on the premises of the owner are protected by the Fourth and Fourteenth Amendments, and that the inspection clause contained in the airline tariff and incorporated by reference on the back of the airbill does not constitute a consent to searches by police officers totally unrelated to the interests of the airline.

We find it unnecessary to determine whether Dunkel, the airline employee, was acting as an agent of the police in opening the package because even assuming he was not, the marijuana must be excluded because the subsequent search of the packages by the police was unlawful.

People v. Marshall, supra, 69 Cal.2d 51, 57, 69 Cal.Rptr. 585, 588, 442 P.2d 665, 668, makes clear that with certain exceptions probable cause to believe that 'a search will reveal contraband * * * does not justify a search without a warrant.'

The exceptions to the requirement of a warrant are limited to situations where the search is incident to a lawful arrest, where there is a danger of "imminent destruction, removal, or concealment of the property intended to be seized;" or where the evidence is in plain sight, which 'is, in fact, no search for evidence.' (People v. Marshall, supra, 69 Cal.2d at pp. 56, 60--61, 69 Cal.Rptr. at pp. 591, 588, 442 P.2d at pp. 671, 668.)

None of the exceptions applies to this case. When the footlocker checked with American Airlines was searched by the police, Abt was neither present nor arrested until the day after the search (see People v. Marshall, supra, 69 Cal.2d 51, 61, 69 Cal.Rptr. 585, 442 P.2d 665), after the police traced the car to the owner...