People v. Bleile, Cr. 22891

• Decision Date: 29 June 1973
• Docket Number: Cr. 22891
• Citation: 33 Cal.App.3d 203,108 Cal.Rptr. 682
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Steven Melvin BLEILE, Defendant and Appellant.

Page 682

108 Cal.Rptr. 682

33 Cal.App.3d 203

The PEOPLE of the State of California, Plaintiff and Respondent, v. Steven Melvin BLEILE, Defendant and Appellant.

Cr. 22891.

Court of Appeal, Second District, Division 5, California.

June 29, 1973.

As Modified July 6, 1973.

For Opinion on Hearing see, 118 Cal. Rptr. 556.

Oshman, Brownfield, Smith & Hobart and G. Dana Hobart, Los Angeles, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Russell Iungerich and Cynthia Waldman, Deputy Attys. Gen., for plaintiff and respondent.

ASHBY, Associate Justice.

By information appellant was charged with possession for sale of marijuana in violation of Health and Safety Code section 11530.5. After denial of appellant's motion to suppress evidence under Penal Code section 1538.5, the cause was submitted on the testimony contained in the preliminary hearing transcript after the necessary waivers of constituional rights. The court found appellant guilty of possession of marijuana in violation of Health and Safety Code section 11530, a lesser but necessarily included offense. Appellant was sentenced to 90 days in the county jail, imposition of sentence was suspended and appellant was placed on probation. This appeal is taken from the judgment of conviction.

Deputy United States Marshal Ronald Nichols, assigned to the air piracy detail, was on duty the morning of May 26, 1972, at Gate 58, Los Angeles International Airport, checking the boarding of Western Airlines flight 84 to San Francisco. A magnetometer thorough which all boarding passengers were required to pass gave a high reading when appellant passed through it, carrying a luggage bag. Marshal Nichols requested appellant to pass through the machine again without the bag, whereupon an acceptable reading was given. Marshal Nichols requested appellant to step around the corner to a position at a table and to open his bag for inspection, which appellant did.

Upon opening the luggage Marshal Nichols saw a large yellow plastic bag, about three feet by two and a half feet in size. The plastic bag was tied in a knot at the top. Marshal Nichols smelled the odor of marijuana emanating from the yellow bag. Prior to becoming a Deputy U.S. Marshal, Nichols had been with the Los Angeles Police Department for five years. He had smelled marijuana approximately 300 times. He concluded that the bag contained marijuana.

Nichols opened the yellow bag and inside it he discovered two clear cellophane bags containing marijuana. The yellow plastic bag also contained soiled laundry, and in this opinion we shall refer to it as the laundry bag, to distinguish it from appellant's carry-on flight bag and from the cellophane bags containing the marijuana. ¹

Nichols arrested appellant and turned him and the evidence over to the Los Angeles Police Department. The two cellophane bags contained 577 grams of marijuana.

Appellant's sole contention on this appeal is that the trial court erred in denying his motion to suppress the evidence under Penal Code section 1538.5, because the marijuana was procured as the result of an illegal search and seizure. In support of this contention appellant suggests and argues several proposed restrictions to the search.

At the outset, however, appellant concedes that the use of the magnetometer was not an improper search and also concedes that it was permissible to open appellant's flight bag to determine the source of the magnetometer's high reading. Marshal Nichols testified that when he saw the magnetometer reading, he requested appellant to step around the corner to a table and open his bag for inspection, and that appellant did so at his request. Appellant's counsel conceded at trial that appellant consented to the opening of the flight bag. This concession is in accord with case law upholding the search of carry-on luggage of boarding passengers. (People v. Botos, 27 Cal.App.3d 774, 779, 104 Cal.Rptr. 193; People v. DeStrulle, 28 Cal.App.3d 477, 482, 104 Cal.Rptr. 639; United States v. Slocum, 464 F.2d 1180, 1183 (3d Cir. 1972); United States v. Mitchell, 352 F.Supp. 38, 44 (E.D.N.Y.1972).)

Relying upon United States v. Meulener, 351 F.Supp. 1284, 1289-1290 (C.D.Cal.1972), appellant argues that the marshal had a duty to advise him, before opening the flight bag, that appellant had the option either to consent to a search of the flight bag or to leave without boarding the plane. Appellant argues that his consent to the search of the flight bag was invalid in the absence of such a warning. There is no merit to this contention. We have no doubt that the federal district court in the Meulener case was influenced by the closely analogous and at that time well established rule ² in the Ninth Circuit that a consent to a search is not voluntary unless it is proved that the person granting the consent was advised of or knew that he had the right to refuse consent. It is equally well established under the law in California state courts that advice to a suspect that consent to search may be refused is not a prerequisite to a showing of voluntary consent. (People v. Tremayne, 20 Cal.App.3d 1006, 1014, 98 Cal.Rptr. 193; People v. Bustamonte, 270 Cal.App.2d 648, 653, 76 Cal.Rptr. 17; People v. Wheeler, 23 Cal.App.3d 290, 305, 100 Cal.Rptr. 198.) The United States Supreme Court recently adopted the California rule that such a warning is not a sine qua non of a voluntary consent to search. (Schneckloth v. Bustamonte, supra, ---- U.S. ----, 93 S.Ct. 2041, 36 L.Ed.2d 854 (May 29, 1973), reversing Bustamonte v. Schneckloth, supra, 448 F.2d 699 (9th Cir. 1971).)

Furthermore, if there is reason to believe that a boarding passenger is a potential hijacker, we disagree with appellant's argument that the governmental interest in protecting the security of airlines and airline passengers is satisfied by permitting the suspect to leave the boarding area rather than to submit to search. A potential hijacker might very well proceed to the boarding area of another flight where security officers might be less observant. Even if the potential hijacker did not successfully board a different flight, he may still represent an extreme danger to persons and property inside the terminal. Most hijackers are seriously disturbed and desperate people, and if a hijacker carrying a weapon is prevented from boarding a plane, he might decide to use it at the airport. If the hijacker is carrying a bomb, it might explode at any time. ³

Appellant argues further that even if it was proper for the marshal to open the flight bag, the search was impermissibly extended in scope when the laundry bag was opened. We disagree.

When Marshal Nicols opened appellant's flight bag, he observed the laundry bag and smelled the odor of marijuana emanating from it. Nichols' qualifications to recognize the smell of marijuana were unquestioned. It is apparent then, that when Marshal Nichols smelled the odor of marijuana emanating from the laundry bag, he had probable cause to believe that the bag contained contraband. It is well established that a police officer may rely upon all of his senses in determining the presence of probable cause. Reasonable grounds for believing a package contains contraband may be afforded by the odor which the package emits. An officer who smells marijuana has probable cause to believe contraband is present. (People v. McKinnon, 7 Cal.3d 899, 916-917, 103 Cal.Rptr. 897, 500 P.2d 1097; Mann v. Superior Court, 3 Cal.3d 1, 7-8, 88 Cal.Rptr. 380, 472 P.2d 468; People v. Gordon, 10 Cal.App.3d 454, 460-461, 89 Cal.Rptr. 214; In re Elizabeth H., 20 Cal.App.3d 323, 328, 97 Cal.Rptr. 565; People v. Lovejoy, 12 Cal.App.3d 883, 887, 91 Cal.Rptr. 94; People v. Anderson, 9 Cal.App.3d 80, 85, 88 Cal.Rptr. 4; People v. Peterson, 9 Cal.App.3d 627, 633, 88 Cal.Rptr. 597; People v. Christensen, 2 Cal.App.3d 546, 548-549, 83 Cal.Rptr. 17; People v. Nichols, 1 Cal.App.3d 173, 175, 81 Cal.Rptr. 481.)

Here the laundry bag was contained inside appellant's carry-on flight bag, which appellant intended to take with him onto the airplane. In People v. McKinnon, supra, 7 Cal.3d 899, 907-910, 103 Cal.Rptr. 897, 500 P.2d 1097, the Supreme Court held that when the police have probable cause to believe a chattel consigned to a common carrier contains contraband, they may seize and search it without a warrant because otherwise it will be shipped out of the jurisdiction. The well established rule that because of its mobility an automobile may be searched without a warrant if there is probable cause to believe it contains contraband (Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); People v. Laursen, 8 Cal.3d 192, 104 Cal.Rptr. 425, 501 P.2d 1145) was applied to boxes, trunks and other things readily moved. The McKinnon principle is applicable here. Had appellant been permitted to do so, he would have taken the bag out of the jurisdiction on an airplane. Since Marshal Nichols had probable cause to believe the laundry bag contained marijuana, he was entitled to search the bag without a warrant. (People v. McKinnon, supra, 7 Cal.3d at 916-917, 103 Cal.Rptr. 897, 500 P.2d 1097; People v. Thompson, 25 Cal.App.3d 132, 142, 101 Cal.Rptr. 683; People v. Gordon, supra, 10 Cal.App.3d 454, 460-461, 89 Cal.Rptr. 214.)

In his attempt to bolster his argument appellant relies on a statement in People v. Marshall, 69 Cal.2d 51, 59, 69 Cal.Rptr 585, 422 P.2d 665, that 'plain smell' is not the equivalent of 'plain view.' Appellant's reliance upon Marshall is misplaced. In Marshall, the officers entered a house without a warrant, and rummaged throughout the house, eventually opening a brown paper bag in a closet when they smelled marijuana. The court held that the evidence should have been suppressed because the officers had conducted a search of the package without a warrant. The court had no...