Chaires v. State, 44717

• Citation: 480 S.W.2d 196
• Decision Date: 29 March 1972
• Docket Number: No. 44717,44717
• Parties: Douglas A. CHAIRES, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 196

480 S.W.2d 196

Douglas A. CHAIRES, Appellant, v. The STATE of Texas, Appellee.

No. 44717.

Court of Criminal Appeals of Texas.

March 29, 1972.

Rehearing Denied June 7, 1972.

Earl L. Yeakel, III, Wallace A. McLean, Austin, for appellant.

Robert O. Smith, Dist. Atty., Herman Gotcher and Michael J. McCormick, Asst. Dist. Attys., and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is possession of marihuana; the punishment, fifteen (15) years.

Civilian employees of Braniff Airways and the air terminal testified that the appellant and two young women arrived in company with each other at the airport shortly before a flight to Washington, D.C., was scheduled to depart. The appellant carried a grey suitcase and each woman had one white suitcase and a footlocker. While issuing the tickets and baggage checks an attendant detected the odor of marihuana coming from appellant's baggage. He followed the baggage to the baggage room and pushed the sides of the appellant's suitcase together, creating a bellows effect, which produced a strong odor of marihuana. He then smelled the other luggage on the baggage cart and also detected an odor of marihuana escaping from the womens' luggage. He pried open the corner of the footlockers and was able to see cellophane bags, and further clearly detected the odor of marihuana. Another agent unlocked appellant's suitcase and found it filled with plastic bags containing a grassy substance which he identified as marihuana. The agents then called their superior who, in turn, called the Austin police. Captain Gann of the narcotic section arrived shortly before the plane was due to depart. The bags in question had been put aboard the plane, but Gann and airport officials boarded the plane, examined the bags and after confirming the fact that they contained marihuana arrested appellant and the two women.

Appellant's first six grounds of error relate to the failure of the court to charge in accordance with Article 38.23, Vernon's Ann.C.C.P. ¹ Appellant's contention is predicated upon the assumption that the evidence raised an issue as defined in paragraph 2 of said Article. The appellant did not testify and offered only evidence that he had not heretofore been convicted of a felony.

After the Braniff employees, by sight and smell, determined that the bags contained marihuana, and reported their findings to the police, the police, upon seeing the bags and smelling the contraband, clearly had probable cause to seize the luggage and to arrest the offenders. There is no evidence to dispute these facts and, therefore, no issue for the jury's determination. Jones v. State, Tex.Cr.App., 458 S.W.2d 654; Corbitt v. State, Tex.Cr.App., 445 S.W.2d 184.

Appellant's first grounds of error are overruled.

Appellant's remaining ground of error is that the court erred in admitting the suitcases and trunks containing marihuana on the ground that they were recovered pursuant to an illegal search. He claims that there were actually two searches; one by airline officials and one by police, and that both were illegal.

Appellant first contends that the airline officials were acting in concert with the police. The evidence indicates that the Braniff agents, on their own initiative, suspected the presence of marihuana and made a discovery inspection which sustained their initial suspicions after which they alerted the police. ² Appellant's reliance on Corngold v. United States, 9 Cir., 367 F.2d 1, is misplaced. In that case, custom officials followed a suspected shipper of contraband to the airport and, after the shipper left, requested the carrier's agents to open the containers. In Gold v. United States, 378 F.2d 588, the Ninth Circuit Court of Appeals in dealing with a similar situation distinguished Corngold, supra, and concluded, as we do here, that the initial search of the luggage by airline officials was not undertaken at police request but was an independent investigation by the carrier for its own purpose. Clearly, the police did not open, induce the opening of, or participate in the opening of the appellant's baggage necessary to bring him within the Corngold, supra, rule. United States v. Averell, D.C., 296 F.Supp. 1004; State v. Wolfe, 5 Wash.App. 153, 486 P.2d 1143. Recently in Yantis v. State, 476 S.W.2d 24 (1972) we overruled appellants' contention that under the circumstance presented there, a private party was acting in the role of a police agent.

Appellant next suggests that the carrier's search was illegal because it was acting pursuant to an unconstitutional C.A.B provision. ³ He claims that when the C.A.B. enacted the regulation now in question, it exceeded its permissible bounds by not restricting the carrier's right to search to situations where it felt the aircraft was in danger. In the case at bar, the agents smelled the odor of marihuana which aroused their suspicions. We have concluded that under the circumstances the carrier was not required to pass on luggage without further inspection. As the court said in United States v. Averell, D.C., 296 F.Supp. 1004 (1969), the 'airline had the right and perhaps the duty to discover if its facilities were being used for the commission of a crime.'

Appellant finally contends that the warrantless search of the luggage by the Austin police at the airport was illegal.

As we concluded earlier, once the airline agents communicated their findings to law enforcement officials and verified these suspicions, the police clearly had probable cause to seize the...